Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT LEE BAIER,             :
 
                                          :        File No. 921026
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            WESTHOFF, INC.,               :
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Robert 
 
            Lee Baier, claimant, against Westhoff, Inc., employer 
 
            (hereinafter referred to as Westhoff) whose insurance status 
 
            is unknown, defendant, for workers' compensation benefits as 
 
            a result of an alleged injury on October 13, 1988.  On July 
 
            23, 1990, a hearing was held on claimant's petition and the 
 
            matter was considered fully submitted at the close of this 
 
            hearing.
 
            
 
                 On April 13, 1990, sanctions were imposed against 
 
            defendant for failure to comply with a direct order from 
 
            this agency to file a responsive pleading to the petition.  
 
            From that date, the record was closed to further evidence or 
 
            activity by defendant.
 
            
 
                 At the time of hearing, oral testimony and written 
 
            exhibits were received only from claimant.  Despite notice 
 
            of the hearing, defendant did not physically appear to moni
 
            tor the hearing proceedings.  No transcript of the hearing 
 
            was taken.  Defendant had been ordered to furnish a court 
 
            reporter and none appeared at the hearing.  Claimant waived 
 
            a transcription of the proceedings and agreed that the only 
 
            record of the proceedings for the purpose of appeal will be 
 
            this decision.
 
            
 
                 
 
            
 
                                      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;
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                  IV.  The extent of claimant's entitlement, if any, to 
 
            additional benefits for an unreasonable denial or delay in 
 
            payment of benefits; and,
 
            
 
                   V.  Claimant's rate of weekly compensation.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 From his demeanor while testifying, claimant is found 
 
            credible.  The following findings are based upon claimant's 
 
            credible testimony.
 
            
 
                 The claimant is 40 years old having been born on April 
 
            22, 1949.  The claimant is married. He had two children from 
 
            his current marriage and three dependents from a prior mar
 
            riage on the date of injury, October 13, 1988.  Claimant has 
 
            a high school education along with some training immediately 
 
            thereafter in auto mechanics.  The claimant indicated that 
 
            he could read the daily newspaper, but he also admitted dur
 
            ing the course of the hearing that he often could not under
 
            stand words over five to six letters long.  He indicated 
 
            that he seldom read books or serious magazines.  His speech 
 
            patterns during the hearing indicated a limited grasp of 
 
            grammar, diction and punctuation.  The claimant has not been 
 
            employed as an auto mechanic for over 30 years.
 
            
 
                 The claimant's prior employment over the last 20 years 
 
            has been as an over-the-road semi truck driver specializing 
 
            in 18 wheel vehicles.  The claimant has no other significant 
 
            work experience other than as a sergeant in the National 
 
            Guard where his position is a supervisory rather than a 
 
            laboring position.  The claimant did work for a short period 
 
            of time for IBP, Inc. as a butcher.  He also worked in 
 
            general housing construction many years ago and for a short 
 
            time after high school in auto mechanics.  The claimant has 
 
            never been a foreman or had a supervisory position other 
 
            than the National Guard nor has he had an office job for any 
 
            employer.  All prior jobs required claimant to work in a 
 
            cold environment, indoors and out.
 
            
 
                 The claimant was hired by the defendant in Iowa after 
 
            he applied at defendant's Sioux City, Iowa office in person.  
 
            The claimant drove trucks owned by the defendant and 
 
            received $.15 per mile loaded and $.13 per mile while empty.  
 
            The claimant was required to unload trucks by himself or to 
 
            pay for the unloading out of his own pocket.  The claimant 
 
            would be phoned and told to pick up loads in Sioux City or 
 
            other locations as the Sioux City, Iowa office of the 
 
            defendant directed.
 
            
 
                 On or about October 13, 1988, claimant received an 
 
            injury arising out of and in the course of his employment 
 
            with Westhoff.  Claimant picked up a semi and trailer at the 
 
            employer's Sioux City, Iowa address and drove to 
 
            Mississippi.  There he picked up fish and drove that load to 
 
            Pennsylvania.  From Pennsylvania he drove to New Jersey.  He 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            was then driving back through Pennsylvania on the way to 
 
            Canada at which time he was in an accident in Lehigh County, 
 
            Pennsylvania as shown in Exhibit 12.  Pictures of the dam
 
            aged tractor, shown as Exhibit 13, clearly indicate on the 
 
            vehicle that it was owned by the defendant as does the acci
 
            dent report, Exhibit 12.
 
            
 
                 The claimant was immediately taken by ambulance to the 
 
            Allentown Hospital in Pennsylvania where he was admitted and 
 
            major facial surgery was contemplated.  (Exhibits 1 and 4).  
 
            While hospitalized the claimant was seen by Harvey S. Cheng, 
 
            M.D., (Exs. 5 & 15), George C. Chovanes, M.D., (Exs. 4 & 
 
            16), Mohammad A. Malik, M.D., (Ex. 3) and Geoffrey G. 
 
            Hallock, M.D., (Exs. 2 & 17).  All of these doctors have 
 
            indicated that their treatment was as a result of this 
 
            on-the-job injury.
 
            
 
                 At that point the defendant elected to transport the 
 
            claimant back to Sioux City, Iowa by plane, partially at its 
 
            expense.  The claimant incurred $47.41 in transportation 
 
            expenses from Allentown, Pennsylvania to the Philadelphia, 
 
            Pennsylvania airport from which point he returned to Sioux 
 
            City.  The claimant has not been reimbursed by the defendant 
 
            for the $47.41 in transportation expenses.
 
            
 
                 Upon returning to Sioux City the claimant immediately 
 
            underwent surgery at Marian Health Center performed by 
 
            Stanley Bloustine, M.D., (Exs. 6-8, 18-19).  The claimant 
 
            continued to be seen by Dr. Bloustine thereafter.  Claimant 
 
            had sustained a 10 percent permanent partial impairment to 
 
            the body as a whole as a result of his head injuries sus
 
            tained on October 13, 1988 (Ex. 20).  This finding is based 
 
            upon the views of Dr. Bloustine, the treating physician.
 
            
 
                 The defendant has paid none of the claimant's medical 
 
            bills for treatment and its only effort to help the claimant 
 
            to date was to pay for a one way ticket from Philadelphia to 
 
            Sioux City, Iowa.  The unpaid medical bills to date are 
 
            itemized in Exhibits 1-11.  The claimant continues to be 
 
            seen by a chiropractor (Ex. 9), but no CT scan, myelogram, 
 
            MRI, EMG or other diagnostic tests or medical care have been 
 
            provided by the defendant to date.
 
            
 
                 Claimant has extensive medical restrictions due to the 
 
            injury.  Prior to the accident he had passed routine D.O.T. 
 
            physicals required annually of truckers and he has no other 
 
            significant history of accidents or worker's compensation 
 
            claims.
 
            
 
                 Claimant has returned to work as a semi truck driver.  
 
            The claimant testified that his night vision is getting 
 
            worse and he must now wear glasses.  He is required to 
 
            adjust his seat to the maximum possible position in his cur
 
            rent short trips as a short haul semi driver.  His head is 
 
            now near the roof in the truck.  This raising of the seat is 
 
            necessitated by the fact that he cannot work with his arms 
 
            extended straight out from his shoulders due to the pain in 
 
            his neck and shoulders.  He has avoided working where manu
 
            ally steered trucks are in use and he holds the bottom of 
 
            the steering wheels to avoid shoulder and neck pain.  He 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            indicated that he could not reach high to unhook trailer 
 
            hoses at this time and that he could not unload reefers or 
 
            dry vans, because the products are stacked too high in them 
 
            for him to reach any longer.  The claimant has readjusted 
 
            the mirrors on semis he drives due to his inability to prop
 
            erly rotate his neck.  He also avoids climbing ladders on 
 
            the back of trucks and he has eliminated from consideration 
 
            all trucks that carry produce and have refrigeration units 
 
            mounted near the tops of ladders on trailers.  The claimant 
 
            restricts his lifting on the job currently to 15 pounds.
 
            
 
                 The claimant currently drives no further than 500-600 
 
            miles per day, with frequent stops at least once each hour 
 
            being required due to his need to get out of the truck and 
 
            walk around as a result of his neck and shoulder pain.  His 
 
            current employer has been understanding regarding the amount 
 
            of time lost due to these stops.  The materials he hauls 
 
            currently also do not demand delivery with constant time 
 
            deadlines.  The claimant currently need only turn a lever to 
 
            have his trucks unloaded through their bottoms and no other 
 
            physical labor on his part is required.
 
            
 
                 The claimant testified that he has modified his entire 
 
            home life to adjust to his limitations arising from this 
 
            accident.  He indicated that he purchased additional pipes 
 
            for his vacuum and a telescoping duster so that he does not 
 
            have to reach above shoulder level or stoop over with his 
 
            neck parallel to the ground.  Mopping or sweeping bothers 
 
            him because he has to bend forward too far.  He has trouble 
 
            grocery shopping in getting products off of the bottom 
 
            shelf, again due to his bending restriction.  He purchased 
 
            garbage cans on wheels to avoid carrying over 15 pounds at a 
 
            time.  The jarring of walking upstairs seems to bother his 
 
            neck and upper back and shoulders in particular as does 
 
            walking on irregular hills or surfaces.  He indicated that 
 
            he is very careful in the type of chair that he sits in and 
 
            he gets up and moves around at least every hour.
 
            
 
                 The claimant testified that he was told by Dr. 
 
            Bloustine to avoid cold weather, fumes or chemical smells on 
 
            a permanent basis due to his facial surgery.  He also testi
 
            fied that high humidity and gasoline fumes particularly 
 
            aggravate him.  The claimant wears a mask while unloading 
 
            farm products currently, even if it is a 100 degree humid 
 
            day.  The claimant must wear a mask constantly throughout 
 
            the winter whenever he is outside.  The claimant would not 
 
            consider working for a major oil or chemical company because 
 
            such products aggravate his nasal condition.  Dr. Bloustine 
 
            also advised him to avoid hyperventilating or breathing 
 
            extremely hard from excessive work or excitement as that 
 
            could also aggravate his facial condition.
 
            
 
                 The claimant cannot control his bite and he has lost 
 
            feeling in four of his front teeth.  He cannot tell hot from 
 
            cold due to the numbness in his mouth and he can easily burn 
 
            himself while eating or in drinking items such as hot 
 
            coffee.  He must eat out of the side of his mouth on a con
 
            tinuing basis.
 
            
 
                 The claimant indicated that his left hand experiences 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            radiating numbness and pain from his neck and that he has 
 
            trouble carrying or handling things in that hand since his 
 
            accident.  The claimant indicated that he had not seen a 
 
            chiropractor since 1973 and that he had no treatment for his 
 
            back or neck or shoulders at any time thereafter.  He testi
 
            fied that he would avoid work requiring pushing or pulling 
 
            with his arms, such as operating a forklift or bulldozer, 
 
            front end loader, sewing equipment or other such work that 
 
            would put pressure on his shoulders and neck.
 
            
 
                 Based on the views of Dr. Bloustine (Ex. 20), the 
 
            claimant was temporarily totally disabled from October 13, 
 
            1988 through November 9, 1988.  Although interrogatories and 
 
            requests to produce were sent to the defendant, no wage 
 
            records for the claimant's employment with the defendant 
 
            have been provided at any time.  Based upon the claimant's 
 
            employment with the defendant in 1988, as shown in Exhibit 
 
            22, it can be concluded that the claimant's average weekly 
 
            wage was $288.56.  This was arrived at by taking the figure 
 
            from his 1988 W-2 from the defendant, $13,850.93 and divid
 
            ing that amount by 48 weeks excluding the four weeks during 
 
            which the claimant was temporarily totally disabled from 
 
            this injury.  The claimant had four exemptions and was sin
 
            gle at the time of injury.
 
            
 
                 The following medical bills were incurred as a conse
 
            quent of the October 13, 1988 industrial injury.
 
            
 
                 a)  The Allentown Hospital - Lehigh Valley Hospital             
 
            Center, $3,085.58
 
                 b)  Dr. Geoffrey G. Hallock, $775.00
 
                 c)  Dr. Mohammad A. Malik, $235.00
 
                 d)  Allen Neurosurgical Association, Inc., $280.00
 
                 e)  Dr. Harvey S. Cheng, $110.00
 
                 f)  Marian Health Center, $2,604.22
 
                 g)  Woodbury Anesthesia Group, $192.00
 
                 h)  Dr. Stanley Bloustine, $1,025.00
 
                 i)  Hillier Chiropractic Clinic, $68.00
 
                 j)  Sav-Mor Pharmacy, $37.18
 
                 k)  Mileage, $102.06
 
                 l)  Cab fare from Allentown, PA to Philadelphia, PA,            
 
            $47.41
 
                 Total Medicals Unpaid               $8,561.45
 
            
 
                 The claimant currently earns $5.00 an hour hauling farm 
 
            related materials, including farm chemicals.  The claimant 
 
            testified that he was very worried about losing this employ
 
            ment because his employer had only six trucks total and he 
 
            was not aware of any other employer that was so forgiving 
 
            regarding delivery times and his unloading limitations.  The 
 
            claimant indicated that he currently accumulates very little 
 
            overtime and he indicated that his gross annual earnings 
 
            should be approximately $11,000.00 this year.  Without his 
 
            current restrictions, he believed he could not receive $.20 
 
            a mile or more hauling cross country as he used to and that 
 
            his earnings could be as high as $30,000.00 a year if he did 
 
            not have such restrictions.
 
            
 
                 The claimant testified that 80 percent of the jobs he 
 
            has held and some 75-80 percent of the jobs in the industry 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            require over-the-road truck drivers to be able to unload 
 
            their trailers themselves.  The only alternative to a truck 
 
            driver unloading the trailer himself would be to constantly 
 
            attempt to locate temporary manpower to unload their trail
 
            ers and to then pay for such laboring work out of his own 
 
            share of the profits from each load hauled.  He indicated 
 
            that his only option, given his lack of training or experi
 
            ence in any other field of employment, was to work on short 
 
            haul routes not requiring him to physically unload the 
 
            trucks.
 
            
 
                 Therefore, as a result of his work injury of October 
 
            13, 1988, claimant has suffered a 40 percent loss of earning 
 
            capacity.
 
            
 
                                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 
 
            therein.
 
            
 
                 In the case sub judice, it was clearly shown by the 
 
            evidence offered that claimant was severely injured in an 
 
            accident which arose out of and in the course of his employ
 
            ment with Westhoff.
 
            
 
                  II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of a permanent physi
 
            cal impairment or limitation upon activity involving the 
 
            body as a whole, the degree of permanent disability must be 
 
            measured pursuant to Iowa Code section 85.34(2)(u).  
 
            However, unlike scheduled member disabilities, the degree of 
 
            disability under this provision is not measured solely by 
 
            the extent of a functional impairment or loss of use of a 
 
            body member.  A disability to the body as a whole or an 
 
            "industrial disability" is a loss of earning capacity 
 
            resulting from the work injury.  Diederich v. Tri-City 
 
            Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  The 
 
            extent to which a work injury and a resulting medical condi
 
            tion has resulted in an industrial disability is determined 
 
            from examination of several factors.  These factors include 
 
            the employee's medical condition prior to the injury, imme
 
            diately 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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck 
 
            Haven Cafe, Inc., (Appeal Decision, February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a 40 percent loss of his earning capacity as a 
 
            result of the work injury.  Based on such a finding, 
 
            claimant is entitled as a matter of law to 200 weeks of per
 
            manent partial disability benefits under Iowa Code section 
 
            85.34(2)(u) which is 40 percent of 500 weeks, the maximum 
 
            allowable for an injury to the body as a whole in that sub
 
            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 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 
 
            injury; or, until it is indicated that significant 
 
            improvement from the injury is not anticipated, whichever 
 
            occurs first.  It was found that claimant was off work due 
 
            to his injuries from October 13, 1988 through November 9, 
 
            l988, a period of four weeks.
 
            
 
                 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
 
            tled to an order of reimbursement only if claimant has paid 
 
            those expenses.  Otherwise, claimant is entitled to only an 
 
            order directing the responsible defendants to make such pay
 
            ments.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).  In 
 
            the case at bar, the medical expenses found causally con
 
            nected to the injury will be awarded.
 
            
 
                  IV.  Additional benefits, up to a maximum of 50 per
 
            cent, can be awarded for an unreasonable denial or delay in 
 
            payment of weekly disability benefits under Iowa Code sec
 
            tion 86.13(4).  Defendant, in this case, failed to pay any 
 
            such benefits for no apparent reason.  An additional two 
 
            weeks will be awarded for denial of healing period benefits 
 
            and an additional 100 weeks for a delay in paying permanent 
 
            partial disability benefits.
 
            
 
                   V.  Given the finding of gross weekly wage and 
 
            claimant's marital and exemption status, claimant is enti
 
            tled to a rate of weekly compensation in the amount of 
 
            $192.13 according to the industrial commissioner's published 
 
            rate booklet.
 
            
 
                                      order
 
            
 
                 1.  Defendant shall pay to claimant two hundred (200) 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            weeks of permanent partial disability benefits at a rate of 
 
            one hundred ninety-two and 13/l00 dollars ($192.13) per week 
 
            from November 10, 1988.
 
            
 
                 2.  Defendant shall pay to claimant healing period ben
 
            efits from October 13, 1988 through November 9, 1988 at the 
 
            rate of one hundred ninety-two and 13/100 dollars ($192.13) 
 
            per week.
 
            
 
                 3.  Defendant shall pay to claimant additional benefits 
 
            for an unreasonable denial or delay in payment of weekly 
 
            benefits in the amount of one hundred two (102) weeks from 
 
            the date of injury herein, October 13, 1988.
 
            
 
                 4.  Defendant shall reimburse claimant his medical 
 
            expenses in the sum of eight thousand five hundred sixty-one 
 
            and 45/l00 dollars ($8,561.45).
 
            
 
                 5.  Defendant shall hereafter provide such reasonable  
 
            and necessary medical treatment for the work injury of 
 
            October 13, 1988, as is recommended by claimant's physicians 
 
            including any necessary transportation to receive such 
 
            treatment.
 
            
 
                 6.  Defendant shall pay interest on weekly benefits 
 
            awarded herein from the date they were due as set forth in 
 
            Iowa Code section 85.30.
 
            
 
                 7.  Defendant shall pay the costs of this action pur
 
            suant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 8.  Defendant shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            Division of Industrial Services Rule 343-3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of August, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Dennis J. Mahr
 
            Attorney at Law
 
            318 Insurance Centre
 
            507 - 7th St
 
            Sioux City  IA  51101
 
            
 
            Mr. William J. Westhoff
 
            Westhoff, Inc.
 
            120 Livestock Exchange Bldg
 
            Sioux City  IA  51101
 
            REGULAR & CERTIFIED MAIL
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed August 27, 1990
 
                                               LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROBERT LEE BAIER,             :
 
                                          :        File No. 921026
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            WESTHOFF, INC.,               :
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            
 
                 Extent of disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            BERNARD GROSS,	      :
 
		                      :
 
                 Claimant, 	      :
 
		                      :
 
            		vs.           :
 
		                      :      File No. 921036
 
            QUAKER OATS COMPANY,      :
 
                		      :        A P P E A L
 
                 Employer, 	      :
 
                 Self-Insured,        :
 
		                      :      D E C I S I O N
 
            		and           :
 
                      		      :
 
            SECOND INJURY FUND OF IOWA,:
 
                     		      :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed July 16, 1991 is affirmed and is adopted as the final 
 
            agency action in this case, with the following additional 
 
            analysis:
 
            Agency precedent is clear, where a party fails to comply 
 
            with prehearing order requiring service of exhibit & witness 
 
            list on opposing party that party's evidence is excluded.  
 
            See, Clousing v. Rosenboom Machine & Tool, Appeal Decision, 
 
            filed May 15, 1989.
 
            Lack of prejudice or disadvantage does not justify admission 
 
            of evidence where claimant failed to comply with the 
 
            prehearing order.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Robert R. Rush
 
            Mr. Matthew J. Nagle
 
            Attorneys at Law
 
            526 2nd Ave. SE
 
            P.O. Box 2457
 
            Cedar Rapids, Iowa 52406
 
            
 
            Mr. James E. Shipman
 
            Attorney at Law
 
            1200 MNB Bldg.
 
            Cedar Rapids, Iowa 52401
 
            
 
            Mr. Dean A. Lerner
 
            Mr. Charles S. Lavorato
 
            Assistant Attorneys General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9999
 
            Filed November 26, 1991
 
            Byron K. Orton
 
            DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            BERNARD GROSS,	      :
 
                      		      :
 
                 Claimant, 	      :
 
 		                      :
 
           	 vs.		      :
 
		                      :      File No. 921036
 
            QUAKER OATS COMPANY,      :
 
                		      :        A P P E A L
 
                 Employer, 	      :
 
                 Self-Insured,        :	
 
		                      :      D E C I S I O N
 
            		and 	      :
 
                      		      :
 
            SECOND INJURY FUND OF IOWA,:
 
                      		      :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed July 16, 1991, 
 
            with short additional analysis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BERNARD GROSS,                :
 
                                          :         File No. 921036
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration filed by Bernard 
 
            Gross on October 4, 1989, seeking benefits under the Iowa 
 
            Workers' Compensation Act from employer Quaker Oats Company 
 
            and the Second Injury Fund of Iowa on account of an alleged 
 
            injury of September 20, 1989.  Prior to hearing, claimant 
 
            entered into a settlement agreement with defendant Quaker 
 
            Oats and now seeks relief only from the Second Injury Fund 
 
            of Iowa.  He asserts that he had a preexisting disability to 
 
            the left foot, and has now sustained bilateral arthritic 
 
            injuries to the lower extremities.
 
            
 
                 This cause came on for hearing in Cedar Rapids, Iowa, 
 
            on July 11, 1991.  The record consists only of claimant's 
 
            testimony.  Claimant offered certain exhibits (1 through 15) 
 
            and would have presented another witness, his wife, if so 
 
            allowed.  However, because he failed to timely serve a 
 
            witness and exhibit list on defendant Second Injury Fund of 
 
            Iowa in accordance with the hearing assignment order filed 
 
            herein on January 25, 1991, that evidence was excluded.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that an employment 
 
            relationship existed between claimant and Quaker Oats 
 
            Company on September 20, 1989, that the appropriate rate of 
 
            weekly benefits is $404.27 and that the commencement date 
 
            for permanent partial disability, if awarded, is March 10, 
 
            1990.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant had a qualifying prior loss for 
 
            Second Injury Fund purposes;
 
            
 
                 2.  Whether claimant sustained an injury arising out of 
 
            and in the course of his employment with Quaker Oats Company 
 
            on September 20, 1989;
 
            
 
                 3.  Whether the alleged injury caused permanent 
 
            disability; and,
 
            
 
                 4.  If so, whether it is an occupational disease under 
 
            chapter 85A, an injury to two or more scheduled members 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            under Iowa Code section 85.34(2)(s), or otherwise is 
 
            compensable under the Second Injury Compensation Act and the 
 
            extent thereof.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 Bernard Gross, 56 years of age at hearing, has 
 
            congenital flat feet and an ankle deformity on the left 
 
            side.  He has long suffered pain in his feet and has favored 
 
            the left leg.  He described this as hampering some of his 
 
            activities (for example, climbing ladders at home) and he 
 
            wears special shoes with arch supports.
 
            
 
                 It is claimant's understanding that he suffers 
 
            arthritis in both knees.  It was observed that he is now 
 
            quite bowlegged.  He first noticed this condition in 1986 
 
            and now suffers pain in the knees at all times.  Pain also 
 
            now extends up to his hips.  The record does not contain any 
 
            expert opinion as to whether claimant's condition, be it 
 
            arthritic or otherwise, is causally related to employment 
 
            with Quaker Oats Company.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on September 20, 
 
            1989 which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The words "arising out of" refer to the course or 
 
            source of the injury.  McClure v. Union, et al., Counties, 
 
            188 N.W.2d 283 (Iowa 1971).  This requirement is satisfied 
 
            by showing a causal relationship between the employment and 
 
            the injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 
 
            1986).
 
            
 
                 The Supreme Court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 While a personal injury does not include an 
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury. . . . The result of 
 
                 changes in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    . . . .
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            20, 1989 is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Assuming that claimant's understanding as to his 
 
            bilateral condition is accurate, common knowledge and the 
 
            experience of this agency recognizes that arthritis is a 
 
            common degenerative disease which afflicts workers and 
 
            nonworkers alike.  This agency has often held that arthritic 
 
            conditions have either been caused by or aggravated by 
 
            employment, but in other cases, claimant has failed to 
 
            establish that necessary causal nexus between the arthritic 
 
            condition and employment.
 
            
 
                 As noted above, no expert evidence has been admitted 
 
            into the record.  Particularly where it is alleged that a 
 
            degenerative condition such arthritis is causally related to 
 
            the employment, expert opinion is crucial.  In its absence, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            it must be held that claimant has failed to sustain his 
 
            burden of proof.  Accordingly, Second Injury Fund liability 
 
            has not been established.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from this proceeding.
 
            
 
                 Each party shall be responsible for its own costs 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Matthew J. Nagle
 
            Mr. Robert R. Rush
 
            Attorneys at Law
 
            526 Second Avenue SE
 
            P.O. Box 2457
 
            Cedar Rapids, Iowa  52406-2457
 
            
 
            Mr. James E. Shipman
 
            Attorney at Law
 
            1200 MNB Building
 
            Cedar Rapids, Iowa  52401
 
            
 
            Mr. Charles S. Lavorato
 
            Mr. Dean A. Lerner
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108; 2901
 
                           Filed July 16, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BERNARD GROSS,                :
 
                                          :         File No. 921036
 
                 Claimant,                :
 
                                          :      A R B I T R A T I O N
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            1108; 2901
 
            Claimant settled with employer, but failed to serve witness 
 
            and exhibit lists on sole remaining defendant, the Second 
 
            Injury Fund.
 
            With evidence excluded, claimant failed to prove causal 
 
            relationship between employment and lower extremity 
 
            arthritis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROXANN DOLPHIN,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  921038
 
            BEEF SPECIALISTS OF IOWA, INC,:
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Roxann 
 
            Dolphin, claimant, against Beef Specialists of Iowa, Inc., 
 
            employer and Hartford Insurance Company, insurance carrier, 
 
            defendants for benefits as the result of an alleged injury 
 
            which occurred on June 10, 1989.  A hearing was held at 
 
            Storm Lake, Iowa, on November 8, 1990.  Claimant was 
 
            represented by Steve Hamilton.  Defendants were represented 
 
            by Matthew Grotness and Frank T. Harrison.  The record 
 
            consists of the testimony of Roxann Dolphin, claimant; Bret 
 
            Dolphin, claimant's husband; Danny Mohni, supervisor; and 
 
            joint exhibits 1 through 13.  The deputy ordered a 
 
            transcript of the hearing.  
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of the alleged injury.
 
            
 
                 That claimant asserts no claim for temporary disability 
 
            benefits.
 
            
 
                 That the commencement date for permanent disability 
 
            benefits, in the event such benefits are awarded, is June 
 
            10, 1989.
 
            
 
                 That the rate of compensation, in the event of an 
 
            award, is $176.10 per week.
 
            
 
                 That the fees charged for medical services are fair and 
 
            reasonable and that they were incurred for reasonable and 
 
            necessary medical treatment.
 
            
 
                 That the causal connection of the expenses to treatment 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            for a medical condition upon which claimant is now basing 
 
            her claim is admitted, but the causal connection of this 
 
            condition to a work injury remains an issue to be decided in 
 
            these precedings.
 
            
 
                 That defendants make no claim for credit for employee 
 
            nonoccupational group health plan benefits or workers' 
 
            compensation benefits paid to claimant prior to hearing.
 
            
 
                 That there are no bifurcated claims.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury on June 10, 1989, 
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability.
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits.
 
            
 
                 Whether claimant is entitled to medical benefits.
 
            
 
                                 findings of fact
 
            
 
                                      injury
 
            
 
                 Claimant sustained the burden of proof by a 
 
            preponderance of the evidence that she sustained an injury 
 
            on June 10, 1989, which arose out of and in the course of 
 
            employment with employer.
 
            
 
                 Claimant started to work for employer on January 30, 
 
            1989 (transcript pages 19 & 39).  She terminated her 
 
            employment on August 19, 1989 (tr. pp. 35 & 49).  Claimant 
 
            testified that she is 5 foot 7 1/2 inches tall and weighs 
 
            165 pounds (tr. p. 11).  She testified that she processed 
 
            meat carcasses eight to ten hours a day, five to six days a 
 
            week.  Her job was to trim skirts with a straight knife.  
 
            She described a skirt as a slab of meat approximately two 
 
            inches thick, that weighed approximately 10 pounds which was 
 
            oval shaped and was approximately two feet by two feet in 
 
            size.  She testified that she was expected to trim a skirt 
 
            every 35 seconds.  She estimated she trimmed 80 to 90 skirts 
 
            per hour.  She demonstrated it took approximately eight to 
 
            ten cuts to trim a skirt.  The job essentially means 
 
            removing a piece of fat which is sandwiched in between two 
 
            pieces of meat.  She also cut off the diaphragm and put it 
 
            in a tub, then flipped the skirt over and trimmed and 
 
            scraped off the fat (tr. pp. 19-23 and 44-47).
 
            
 
                 Claimant testified that she was also required to lift 
 
            tubs which weighed approximately 50 to 75 pounds every half 
 
            hour.  She admitted she had never weighed a tub.  Danny 
 
            Mohni, a supervisor, said that he weighed a tub and it 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            weighed approximately 41 to 42 pounds (tr. pp. 23 & 63).
 
            
 
                 Claimant testified that near the end of February or 
 
            approximately the beginning of March 1989, she began to have 
 
            pain in the top of her shoulders and in her neck.  She had 
 
            no part-time jobs and was not doing anything outside of her 
 
            employment to account for this pain (tr. pp. 24 & 25).  She 
 
            denied any prior injury or diseases to her neck, back, 
 
            shoulders or hands (tr. p. 16).
 
            
 
                 Claimant testified that she complained several times to 
 
            her supervisor, Rick Maranell, and Cindy Armstrong, the 
 
            plant nurse, that she needed medical care, but they did not 
 
            send her to a doctor.  Claimant related that on June 10, 
 
            1989, Armstrong made out an accident report and sent her to 
 
            see John P. McCarthy, D.C. (tr. pp. 25-27).  Dr. McCarthy's 
 
            records show that he saw claimant on June 15, 1989.  He 
 
            recorded the onset of the problem as June 10, 1989.  He said 
 
            the cause was carrying tubs.  He recorded that claimant had 
 
            no past injury.  He said the chief complaint was left upper 
 
            dorsal pain that radiates down the left side and up into the 
 
            neck and off and on into the left arm.  He noted that 
 
            claimant had these complaints for a long time, since at 
 
            least February and that its gotten gradually worse.  Turning 
 
            her head to the left radiated pain in to the left dorsal 
 
            area (exhibit 7, page 4).  He returned claimant to work the 
 
            following day on June 16, 1989, without any restrictions.  
 
            Claimant said she saw Dr. McCarthy two or three times and 
 
            then quit because it felt like he put her neck out of place 
 
            (tr. pp. 26 & 27).  
 
            
 
                 Claimant then went to see Rex J. Jones, D.C.  The first 
 
            time she did not have authority, but after the first time, 
 
            Armstrong said to bring in the bill and she then authorized 
 
            claimant to see Dr. Jones approximately twice a week in 
 
            April, May, June and August of 1989 (tr. pp. 28 & 29).  
 
            
 
                 The records of Dr. Jones show that he first saw 
 
            claimant on June 21, 1989, for neck and upper back pain.  He 
 
            noted a bump on the right side of the scapula and spine--not 
 
            as large as on the left side.  He noted the original injury 
 
            was near the end of March, carrying tubs.  He recorded that 
 
            her hands were numb most of the time, the left hand will 
 
            cramp up at night, there is pain in the palm, the first 
 
            three fingers were numb on the left hand, and the middle 
 
            finger on the right hand wakes her up at night (ex. 5, p. 
 
            4).  Claimant reported to him that the initial accident 
 
            occurred on June 10, 1989, working on the line, lifting 
 
            heavy tubs of meat.  Previously she was injured near the 
 
            beginning of March, but she was not sent to a doctor at that 
 
            time.  She said both injuries occurred in a similar way (tr. 
 
            p. 31).
 
            
 
                 On July 10, 1989, Dr. Jones referred to the Dictionary 
 
            of Occupational Titles and said that claimant was capable of 
 
            performing medium work, which is lifting 50 pounds maximum 
 
            with frequent lifting and/or carrying of objects weighing up 
 
            to 25 pounds.  He said she could stand and walk six to eight 
 
            hours a day, could use her feet for repetitive movements and 
 
            operating foot controls, that she could squat, climb and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            perform overhead work frequently and bend intermediately and 
 
            that she was capable of working at shoulder level with both 
 
            hands.  Dr. Jones commented, "Bending over the table will 
 
            keep her upper back muscle spasm sore and affect her spinal 
 
            function.  Repetitive movement will cause her pain to be 
 
            recurrent." (ex. 5, p. 9).  On July 14, 1989, Dr. Jones 
 
            wrote:
 
            
 
            1) developing early trigger finger in right hand-little 
 
            finger
 
            2) developing early ganglion cysts on both wrists from 
 
            chronic                                                        
 
            tendon irritation.
 
            3) use wrist splints if possible.
 
            On June 17, 1989, Dr. Jones told employer to, "Please put 
 
            wrist wraps on Roxanne [sic]". (ex. 5, p. 11). 
 
            
 
                 On August 18, 1989 Dr. Jones wrote:
 
            
 
                    I am writing in regard to Roxanne [sic] 
 
                 Dolphin.  I have recommended that she not work at 
 
                 this type of occupation because of the repetitive 
 
                 nature of the work.  She is developing chronic 
 
                 upper back strain, tendinitis of the wrists, has a 
 
                 snapping finger developing, and complains of 
 
                 carpal tunnel-like symptoms in the arms and hands.  
 
                 She does no[t] have the physical build necessary 
 
                 for this job.
 
            
 
            (exhibit 12, page 5)
 
            
 
                 On August 23, 1989, the doctor reported to Job Service 
 
            that claimant had upper back and neck complaints, snapping 
 
            finger, and carpal tunnel-like symptoms in the hands.  In 
 
            answer to the question, "Was disability `employment 
 
            related'?", Dr. Jones marked the block, "yes."  In answer to 
 
            the question, "Did you advise the individual to quit his/her 
 
            job?", Dr. Jones checked the block marked, "yes."  He said 
 
            the reason claimant could not perform her occupation was 
 
            because she had light duty for two weeks and was wearing 
 
            wrist splints on the job, but the upper back was getting 
 
            worse.  In answer to the question of whether there were 
 
            restrictions, Dr. Jones said, "This person has not been 
 
            released from care yet but should not lift or pull." (ex. 5, 
 
            p. 13).
 
            
 
                 There is also a bill from Dr. Jones in evidence for a 
 
            re-examination on December 20, 1989, an office visit and 
 
            ultrasound therapy on December 26, 1989, and a later office 
 
            visit on September 6, 1990.  The total charges are $76.  Dr. 
 
            Jones checked the block to show that the condition was 
 
            related to patient's employment for an injury which occurred 
 
            on June 10, 1989 (ex. 1).
 
            
 
                 J. Michael Donohue, M.D., performed an independent 
 
            medical examination for the Iowa Division of Rehabilitation 
 
            Services.  He said claimant complained of:  (1) neck pain; 
 
            (2) headaches;    (3) tenderness in the shoulders between 
 
            the shoulder blades; and (4) numbness in both hands with 
 
            cramping of her forearms.  His physical examination noted 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            some mild restrictions of motion on flexion and 
 
            hyperextension of her neck.  He diagnosed:         (1) 
 
            chronic cervical strain; (2) chronic myofascial strain rhom
 
            boids and levator scapulae bilaterally; and (3) flexor 
 
            tenosynovitis--it should be noted that on examination today, 
 
            the patient has moderate nodular formation along the flexor 
 
            tendons at the wrist that appears to be a variant of a 
 
            flexor tenosynovitis.  Dr. Donohue wrote:
 
            
 
                 I discussed the findings with the patient.  Based 
 
                 on her current condition and history.  I believe 
 
                 it would be recommended that the patient train in 
 
                 a job that is less strenuous on both her upper 
 
                 extremities as well as her neck area.  I certainly 
 
                 would agree with her current occupational choice 
 
                 of accounting and anticipate that she would do 
 
                 well.
 
            
 
            (exhibit 8, page 2)
 
            
 
                 He recommended that claimant begin an aggressive 
 
            strengthening program for both shoulders as well as her neck 
 
            and to avoid irritating activities with repetitive use of 
 
            her arms at work (ex. 8, p. 3).
 
            
 
                 On December 21, 1989, Dr. Jones said claimant reported 
 
            complaints of headaches in the back of her skull, neck pain, 
 
            pain between the shoulder blades and along the scapula, pain 
 
            over the left shoulder and numbness in both hands while 
 
            writing or taking tests.  Her cervical range of motion was 
 
            measured with a goniometer and an inclinometer.  He stated, 
 
            "Patient exhibits thoracic outlet syndrome bilateral but 
 
            more pronounced on the left with radiation ot [sic] the left 
 
            hand."  He stated she had a moderate case of fibrositis in 
 
            the muscles of her upper back and shoulder which become 
 
            symptom expressive when fatigued, overworked, under stress 
 
            and tension or chilled.  He concluded:
 
            
 
                    This patient did not have the physical build to 
 
                 do the type of labor she was required to do at 
 
                 BSI.  I recommended that she quit her job and seek 
 
                 education and other employment more suited to her 
 
                 physical build and qualifications.  This patient 
 
                 appears to have developed the symptoms she now has 
 
                 while working this past year at BSI as she relates 
 
                 no prior history of problems.
 
            
 
            (exhibit 11, page 2)
 
            
 
                 Defendants contended that claimant had seen doctors on 
 
            prior occasions, but claimant explained that the certificate 
 
            for return to work from Bhupala R. Kalkpolli on June 7, 1989 
 
            was treatment for a common cold by her family physician (tr. 
 
            pp. 33, 34, 40 & 43).  She further testified that the note 
 
            from Herman M. Tan, M.D., dated June 23, 1989 was treatment 
 
            for infertility (ex. 4; tr. p. 49).
 
            Defendants claim that they are not liable for the fact that 
 
            claimant did not have the proper physical build for this 
 
            work as related by Dr. Jones.  However, it is a well known 
 
            principle of workers' compensation law that the employer 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            takes the employee in "as is" condition.  Hanson v. 
 
            Dickenson, 188 Iowa 728, 732 176 N.W. 823, 824 (1920). 
 
            The chief Iowa workers' compensation text book states:
 
            
 
                   The statute prescribes no standard of fitness to 
 
                 which the employee must conform, and compensation 
 
                 is not based on any implied warranty of perfect 
 
                 health or of immunity from latent and unknown 
 
                 tendencies to disease, which may develop into 
 
                 positive ailments, if incited to activity to any 
 
                 cause originating in the performance of the work 
 
                 for which he is hired."   
 
            
 
            (Lawyer and Higgs, Iowa Workers' Compensation--Law and 
 
            Practice, section 4.2, second paragraph, page 21). 
 
            
 
                 Claimant's testimony and the reports of all three 
 
            doctors--Dr. McCarthy, Dr. Jones, and Dr. Donohue--all 
 
            attribute claimant's complaints to her employment for this 
 
            employer.  Claimant's evidence is not rebutted, 
 
            controverted, contradicted or refuted by any other evidence 
 
            either medical or nonmedical.  Therefore, it is determined 
 
            that claimant sustained an injury on June 10, 1989, which 
 
            arose out of and in the course of employment with employer.
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 It is determined that claimant has sustained a 15 
 
            percent industrial disability to the body as a whole caused 
 
            by this injury.  
 
            
 
                 Claimant and all three doctors attribute her complaints 
 
            to her neck, shoulders, hands and upper back to her 
 
            employment for employer.  Dr. McCarthy did not assign an 
 
            impairment rating, but only saw her two or three times at 
 
            the beginning of her treatment and therefore, would not be 
 
            in a position to give an impairment rating; nor is there any 
 
            evidence that he was asked to give an impairment rating.  He 
 
            did return claimant to work without restrictions.  Dr. 
 
            Donohue, the only orthopedic surgeon to examine claimant, 
 
            did not assign an impairment rating, but did find a 
 
            limitation of range of motion in her cervical spine and 
 
            verified claimant's other complaints in her shoulders and 
 
            hands.  In effect, he told claimant to change employment and 
 
            approved her choice of accounting for a change of 
 
            occupation.
 
            
 
                 On December 26, 1989, Dr. Jones reported his cervical 
 
            range of motion measurements and stated that using the 
 
            Guides to the Evaluation of Permanent Impairment, third 
 
            edition, that claimant sustained a 5 percent whole man 
 
            impairment.  He added:
 
            
 
                    This patient's hand numbness was not rated as a 
 
                 specific nerve root could not be established.  The 
 
                 fibrositis was also not rated as the guides do not 
 
                 address this condition even though it can be very 
 
                 debilitating to a persons ability to perform 
 
                 certain tasks and occupation.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            (exhibit 12)
 
            
 
                 Claimant was 23 years old at the time of the injury and 
 
            24 years old at the time of the hearing.  Because of her 
 
            young age, her disability is not as great as it would be for 
 
            a person in the peak earning years of their employment 
 
            career.  Becke v. Turner-Busch, Inc., Thirty-fourth Biennial 
 
            Report of the Industrial Commissioner 34 (Appeal Decision 
 
            1979); Walton v. B & H Tank Corp., II Iowa Industrial 
 
            Commissioner Report 426 (1981); McCoy v. Donaldson Company, 
 
            Inc., file numbers 782670 & 805200 (Appeal Decision April 
 
            28, 1989).
 
            
 
                 Claimant has a high school education.  In December of 
 
            1986, claimant attended the American College of Word 
 
            Processing for 21 weeks in Des Moines and completed the 
 
            course in the spring of 1987 (tr. p. 17).  She has attended 
 
            Northwest Iowa Technical College on two occasions.  On the 
 
            first occasion, right after high school, she was 
 
            unsuccessful and quit school.  The second time, she attended 
 
            three quarters of three months each, a total on nine months, 
 
            and obtained a diploma in clerical accounting in May 1990.  
 
            She was an honor student (tr. pp. 12, 36, & 51).  An injured 
 
            employee's ability for retraining is one of the consider
 
            ations used in the determination of industrial disability.  
 
            Conrad v. Marquette School, Inc., IV Iowa Industrial 
 
            Commissioner Report 74, 89 (1984).
 
            
 
                 Claimant is not able to return to repetitive work with 
 
            her hands and arms.  Based on the reports of Dr. Donohue and 
 
            Dr. Jones, she is foreclosed from this type of work in the 
 
            future.  Rohrberg v. Griffin Pipe Products Co., I Iowa 
 
            Industrial Commissioner Report 282 (1984); Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218, 220 (Appeal Decision January 
 
            30, 1979).  Even though claimant quit the job which caused 
 
            her injuries, she did so on the recommendation of Dr. Jones, 
 
            her treating physician, who made it quite clear that this 
 
            was the only way to resolve her current medical complaints.  
 
            Dr. Donohue concurred in this opinion.  This prohibition of 
 
            no repetitive work eliminates many of the jobs which are the 
 
            easiest to obtain and which frequently pay the most money 
 
            with the least amount of preparation or education for the 
 
            job.  Claimant's past employments as a bookkeeper, night 
 
            auditor and accountant for various employers, will be 
 
            helpful in the future.  Claimant will not be able to return 
 
            to most meat packing jobs, such as those that she has held 
 
            in the past.
 
            
 
                 Claimant is currently employed as a sales person in a 
 
            jewelry shop in her home town at $4.20 per hour, but hopes 
 
            to find accounting work in the future (tr. p. 36).  Claimant 
 
            testified that she continues to have pain in her neck and 
 
            shoulders on both sides for which she takes ibuprofen, two 
 
            or three tablets, twice a day (tr. p. 37).  She has found it 
 
            best if she tries not to lift 10 or 15 pounds (tr. p. 40).  
 
            
 
                 Wherefore: (1) based on the foregoing considerations; 
 
            (2) and all of the factors used to determine industrial 
 
            disability, Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            3 State of Iowa Industrial Commissioner Decisions 654, 658 
 
            (Appeal Decision February 28, 1985) and Christensen v. 
 
            Hagen, Inc., vol. I, no. 3, State of Iowa Industrial 
 
            Commissioner Decisions 529 (Appeal Decision March 26, 1985); 
 
            and (3) relying on agency expertise, [Iowa Administrative 
 
            Procedure Act 17A.14(5)]; it is determined that claimant has 
 
            sustained a 15 percent industrial disability to the body as 
 
            a whole and that claimant is entitled to 75 weeks of 
 
            permanent partial disability benefits.
 
            
 
                                 medical benefits
 
            
 
                 Claimant is entitled to $71 of the $76 of medical 
 
            expenses incurred with Dr. Jones in December 1989 and 
 
            September 1990.  She is not entitled to the $5 for copying 
 
            charges on December 4, 1989.  This is a trial preparation 
 
            expense and not an authorized medical expense under Iowa 
 
            Code section 85.27.  Claimant testified that this treatment 
 
            with Dr. Jones was related to this injury.  Dr. Jones' 
 
            report and his statement for these services indicate that 
 
            they are related to this injury.  Claimant testified that 
 
            she was authorized to see Dr. Jones by Armstrong and that 
 
            this authority was never revoked at any time (tr. p. 32).  
 
            Claimant's testimony is not rebutted, controverted, 
 
            contradicted or refuted, even though Armstrong was present 
 
            in the courtroom at the time of the hearing and heard 
 
            claimant's testimony.  Therefore, claimant is entitled to 
 
            recover $71 for the medical expenses of Dr. Jones (ex. 1).
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based on the evidence presented and the 
 
            foregoing and following principles of law, these conclusions 
 
            of law are made:
 
            
 
                 That claimant sustained an injury on June 10, 1989, to 
 
            her neck, upper back, shoulders, hands and ganglion cysts 
 
            which arose out of and in the course of employment with 
 
            employer.  Iowa Code section 85.3; McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
            Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 That the injury was the cause of permanent disability.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 
 
            607 (1945).
 
            
 
                 That claimant is entitled to 75 weeks of permanent 
 
            partial disability benefits based upon a 15 percent 
 
            permanent functional impairment to the body as a whole.  
 
            Iowa Code section 85.34(2)(u).
 
            
 
                 That claimant is entitled to $71 in medical expenses 
 
            incurred with Dr. Jones.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant seventy-five (75) weeks 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            of permanent partial disability benefits at the rate of one 
 
            hundred seventy-six and 10/100 dollars ($176.10) per week in 
 
            the total amount of thirteen thousand two hundred seven and 
 
            50/100 dollars ($13,207.50) commencing on June 10, 1989 as 
 
            stipulated to by the parties.
 
            
 
                 That defendants pay to claimant or the provider or 
 
            medical services, Dr. Jones, seventy-one dollars ($71) in 
 
            medical expenses.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That the costs of this action, including the cost of 
 
            the transcript, are charged to defendants pursuant to 
 
            Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ____ day of November, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Steven D. Hamilton
 
            Attorney at Law
 
            PO Box 1088
 
            606 Ontario St
 
            Storm Lake, Iowa  50588
 
            
 
            Mr. Frank Harrison
 
            Mr. Matthew Grotnes
 
            Attorneys at Law
 
            2700 Grand Ave. STE 111
 
            Des Moines, Iowa  50312
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51106; 51401; 51402.20; 
 
                                          51402.30; 52209; 51402.40; 
 
                                          1803; 51402.60; 52501; 52700
 
                                          Filed November 29, 1990
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            ROXANN DOLPHIN,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  921038
 
            BEEF SPECIALISTS OF IOWA, INC,:
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51106; 51401; 51402.20; 51402.30; 52209
 
            Claimant proved a cumulative type of injury which arose out 
 
            of and in the course of her short employment with employer 
 
            by her own testimony and the reports of the three doctors 
 
            who treated her.
 
            
 
            81402.40; 1803
 
            Claimant, age 25, high school graduate, received one 
 
            impairment rating for 5 percent and two doctors told her to 
 
            not perform any more repetitive work.  She followed the 
 
            doctors and quit this job and went to school to become an 
 
            accountant.  Claimant was awarded 15 percent industrial 
 
            disability.
 
            
 
            51402.60; 52501; 52700
 
            Claimant awarded medical bill defendants refused to pay.  
 
            Employer had authorized this doctor and had never revoked 
 
            the authorization.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CAROLYN HELM (BEEBE),         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 921040
 
            DAHL'S FOOD MART,             :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Carolyn 
 
            Helm against Dahl's Food Mart, employer, and Employers 
 
            Mutual Companies, insurance carrier.
 
            
 
                 In her petition, claimant has alleged a work-related 
 
            injury of June 5, 1989 and seeks workers' compensation 
 
            benefits.  However, the prehearing report and the evidence 
 
            show that claimant should have alleged an injury date of 
 
            June 21, 1989.  Claimant did not move to amend the injury 
 
            date, nor was there a motion to conform to the proof, but 
 
            due to an absence of prejudice or surprise to the 
 
            defendants, the undersigned finds that claimant's alleged 
 
            injury date should be June 21, 1989.  See, Yeager v. 
 
            Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 999 
 
            (1961).
 
            
 
                 The case was heard at Des Moines, Iowa on May 28, 1991 
 
            and was considered fully submitted upon conclusion of the 
 
            hearing.  Leave was granted so that the parties could file 
 
            briefs.  Claimant chose not to file a brief.
 
            
 
                 The record in this proceeding consists of the testimony 
 
            of the claimant; claimant's exhibits A-H; and, defendants' 
 
            exhibits 1-15.
 
            
 
                          
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            issues
 
            
 
                 Pursuant to the prehearing report submitted and 
 
            approved at the hearing, and in conjunction with the hearing 
 
            assignment order, the following issues were presented for 
 
            resolution:
 
            
 
                 1.  Whether claimant received an injury which arose out 
 
            of and in the course of her employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and claimant's disability;
 
            
 
                 3.  Whether claimant is entitled to temporary total or 
 
            healing period benefits, or permanent partial disability 
 
            benefits;
 
            
 
                 4.  Whether claimant is entitled to medical benefits as 
 
            provided for under Iowa Code section 85.27; and,
 
            
 
                 5.  Claimant's workers' compensation rate.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence received, finds the following 
 
            facts:
 
            
 
                 Claimant was born on December 15, 1943.  At the time of 
 
            the hearing, she was 47 years of age.  Claimant began 
 
            working for Dahl's Food Mart in April of 1989.  Her primary 
 
            job duties included waiting on customers, clearing tables of 
 
            plates and carrying them to the kitchen, washing the dishes, 
 
            and preparing food.  Claimant stated that when she removed 
 
            the dishes from the tables, she would place them in a tub 
 
            and would fill the tub only one-fourth full so that she 
 
            could easily carry the dishes to the kitchen.
 
            
 
                 Claimant described that she began to experience 
 
            problems with her hands after working at Dahl's for 
 
            approximately three and one-half months.  She stated that 
 
            during a two week period, the restaurant was unusually busy, 
 
            and in order to keep up with the demands of the job, she 
 
            began to fully load her tub with dishes and would proceed to 
 
            carry it to the kitchen.  At some point, her hands and 
 
            wrists began to hurt, and she started to drop dishes due to 
 
            a loss of gripping ability.
 
            
 
                 Claimant reported the problem to the assistant manager, 
 
            Judy Robbins, who sent claimant to the Hilltop Medical 
 
            Clinic for an examination.  On July 13, 1989, claimant came 
 
            under the care of Douglas Reagan, M.D.  He noted positive 
 
            findings for carpal tunnel syndrome; ulnar tunnel syndrome; 
 
            cubital tunnel syndrome; pronator syndrome and possible 
 
            radial nerve entrapment at the elbow.  Results of an EMG 
 
            demonstrated mild bilateral carpal tunnel syndrome, and Dr. 
 
            Reagan stated that these findings, "may be related to the 
 
            fact that she has had two carpal tunnel releases in the 
 
            past."  (Cl. Ex. C).  She was referred to Ronald S. Bergman, 
 
            D.O.  He scheduled an EMG of both wrists, and took claimant 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            off of work through August 1, 1989, the date of her next 
 
            appointment.  (Cl. Ex. D).
 
            
 
                 It was recommended that claimant undergo conservative 
 
            treatment initially, and she began physical therapy in 
 
            August of 1989.  The physical therapy treatment provided 
 
            little relief.  (Cl. Ex. C).
 
            
 
                 Eventually, Dr. Bergman diagnosed bilateral carpal 
 
            tunnel syndrome, ulnar tunnel syndrome, and cubital tunnel 
 
            syndrome.  He performed surgery on the right upper extremity 
 
            on September 20, 1989, and surgery on the left upper 
 
            extremity on November 6, 1989.  (Cl. Ex. A, B).
 
            
 
                 On July 24, 1990, Dr. Bergman performed a disability 
 
            evaluation to determine the amount of permanent partial 
 
            disability sustained by claimant.  His opinion provides, in 
 
            pertinent part:
 
            
 
                 12 percent impairment of the left upper extremity 
 
                 due to decreased range of motion of the wrist and 
 
                 elbow, decreased strength, decreased sensation and 
 
                 pain.
 
            
 
                 7 percent impairment of the right upper extremity 
 
                 due to decreased range of motion of the wrist and 
 
                 elbow, decreased strength and pain.
 
            (Cl. Ex. F).
 
            
 
                 Claimant has a history of wrist problems, and has had 
 
            four prior carpal tunnel release surgeries performed.  In 
 
            February of 1987, after the last surgery, she was given 
 
            impairment ratings of two percent of the left hand and three 
 
            percent of the right hand.  (Defendants' Exhibit 3).
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            received an injury on June 21, 1989, which arose out of and 
 
            in the course of her employment with Dahl's.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on June 21, 
 
            1989, which arose out of and in the course of her 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 The evidence reflects that claimant had a preexisting 
 
            condition as a result of numerous, prior carpal tunnel 
 
            releases.  However, she had not had any difficulty in 
 
            performing her waitressing job prior to the unusually busy 
 
            period she worked prior to the injury date of June 21, 1989.  
 
            A determination that an injury "arises out of" the 
 
            employment contemplates a causal connection between the 
 
            conditions under which the work was performed and the 
 
            resulting injuries; i.e., the injury followed as a natural 
 
            incident of the work.  Musselman v. Central Tel. Co., 154 
 
            N.W.2d 128 (1967). 
 
            
 
                 Claimant was required to perform a variety of duties as 
 
            a waitress, including carrying tubs of dishes and washing 
 
            the same.  The evidence shows that she was performing these 
 
            duties in a manner consistent with the job demands, and that 
 
            she subsequently felt pain and loss of strength in her grip.  
 
            She was working scheduled hours at the required location.  
 
            It is concluded that claimant received an injury which arose 
 
            out of and in the course of her employment.
 
            
 
                 The next issue to be addressed is whether there is a 
 
            causal relationship between the injury and disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of June 21, 
 
            1989 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
     
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            However, expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts 
 
            need not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  However, the expert opinion may be accepted or 
 
            rejected, in whole or in part, by the trier of fact.  Id. at 
 
            907.  Further, the weight to be given to such an opinion is 
 
            for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 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.
 
            
 
                 Defendants argue that claimant's current condition, and 
 
            the condition which prompted surgery was not causally 
 
            connected to her employment as a waitress at Dahl's.  They 
 
            based their argument on the fact that there is no opinion 
 
            with respect to causal connection from any of claimant's 
 
            treating physicians, and that the evidence suggests that 
 
            claimant has continuously suffered from carpal tunnel 
 
            symptoms following her prior surgeries.
 
            
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Claimant argues that the condition of her wrists was stable 
 
            prior to her employment with Dahl's, and because of the 
 
            nature of the job, there is a causal connection between 
 
            claimant's injury and the disability.
 
            
 
                 The evidence shows that claimant has experienced 
 
            varying degrees of carpal tunnel symptoms as far back as 
 
            1987.  (Def. Ex. 6).  In fact, her treating physician, 
 
            Raymond Webster, M.D., found a mild decrease in grip 
 
            strength, cyanotic coloring in her hand, and positive Tinels 
 
            sign upon his examination in February of 1987.  He suggested 
 
            that she should not return to any type of manual labor, and 
 
            advised occupational retraining.
 
            
 
                 Although defendants make a strong point in suggesting 
 
            that claimant was still suffering from carpal tunnel 
 
            syndrome even after the surgeries she had in 1984 and 1985, 
 
            there was no diagnosis of carpal tunnel syndrome after these 
 
            surgeries.  In fact, Dr. Webster opined that there would be 
 
            an "increased risk" for her to develop carpal tunnel 
 
            symptoms.  (Def. Ex. 6).  Additionally, there is no evidence 
 
            to suggest claimant was treated for carpal tunnel syndrome 
 
            after 1987.  Her visit to Robert Jones, M.D., in December of 
 
            1988 focused on other physical complaints.
 
            
 
                 Likewise, although defendants are correct in asserting 
 
            that there is no medical opinion with respect to causal 
 
            connection, there is sufficient evidence to suggest that 
 
            claimant's work related injury is causally connected to her 
 
            present disability. 
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to temporary total or healing period benefits, or 
 
            permanent partial disability benefits.
 
            
 
                 A worker who sustains a personal injury which arises 
 
            out of and in the course of her employment which causes 
 
            permanent partial disability is awarded healing period 
 
            benefits for the time off of work.  These benefits begin on 
 
            the date of the injury, and continue until the employee has 
 
            returned to work or it is medically indicated that 
 
            significant improvement from the injury is not anticipated, 
 
            or until the employee is medically capable of returning to 
 
            employment substantially similar to the employment in which 
 
            she was engaged at the time of the injury, whichever occurs 
 
            first.  See, Iowa Code section 85.34(1).
 
            
 
                 In the instant case, claimant has sustained a permanent 
 
            partial disability, as noted by the impairment ratings given 
 
            to her by Dr. Bergman.  As a result, claimant is awarded 
 
            healing period benefits from June 21, 1989 through January 
 
            2, 1990, as stipulated by the parties.
 
            
 
                 Claimant is also awarded permanent partial disability 
 
            benefits under Iowa Code section 85.34(s), which allows 
 
            claimant to recover compensation based on 500 weeks due to a 
 
            bilateral injury.
 
            
 
                 Claimant's entitlement to permanent partial benefits is 
 
            governed by Iowa Code section 85.34(s) which provides, in 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            pertinent part:
 
            
 
                    Compensation for permanent disabilities and 
 
                 during a healing period for permanent partial 
 
                 disabilities shall be payable to an employee as 
 
                 provided in this section.
 
            
 
                 ....
 
            
 
                 (s.)  The loss of both arms, or both hands, or 
 
                 both feet, or both legs, or both eyes, or any two 
 
                 thereof, caused by a single accident, shall equal 
 
                 five hundred weeks and shall be compensated as 
 
                 such, however, if said employee is permanently and 
 
                 totally disabled the employee may be entitled to 
 
                 benefits under subsection 3.
 
            
 
                 Dr. Bergman concluded that claimant's right upper 
 
            extremity exhibited a seven percent permanent impairment, 
 
            and the left upper extremity twelve percent permanently 
 
            impaired.  Prior ratings (due to the previous work-related 
 
            injuries) to the right and left upper extremities were three 
 
            percent and two percent, respectively.  As a result, 
 
            claimant's disability due to her work at Dahl's resulted in 
 
            a four percent permanent partial disability of the right 
 
            upper extremity, and a ten percent impairment to the left 
 
            upper extremity.  By using the conversion tables of the AMA 
 
            Guide, this results in a body as a whole rating of eight 
 
            percent.  Claimant is entitled to 40 weeks of permanent 
 
            partial disability benefits.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to medical benefits pursuant to Iowa Code section 
 
            85.27.
 
            
 
                 The Code provides, in relevant part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter...shall furnish reasonable 
 
                 surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services. 
 
            
 
                 As it has been found that claimant sustained a 
 
            compensable injury, she is awarded medical benefits and 
 
            transportation expenses pursuant to the aforementioned code 
 
            section.
 
            
 
                 The last issue to be addressed is claimant's workers' 
 
            compensation rate.
 
            
 
                 Claimant worked for the defendant for ten weeks, and 
 
            was paid on an hourly basis.  Her rate of pay per hour was 
 
            $5.00, although claimant worked some overtime hours and 
 
            oddly, was paid at a rate of $2.50 per hour.  Claimant has 
 
            also submitted evidence with respect to tips she earned 
 
            during her employment with Dahl's.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 There is no dispute that claimant worked ten weeks 
 
            prior to her injury on June 21, 1989, and her gross income 
 
            during that time was $1,434.07.  This amount includes both 
 
            the overtime hours (which were paid at one-half of her 
 
            regular hourly earnings) and, the tips she earned as shown 
 
            on claimant's Exhibit G and defendants' Exhibit 7.  As a 
 
            result, claimant's gross weekly earnings total $1,434.07.  
 
            This figure will be divided by the ten weeks of employment 
 
            which totals $143.41, which represents her average weekly 
 
            earnings.  Claimant's rate includes the tips she received, 
 
            as the agency considers that the employer is entitled to the 
 
            tips, but usually allows the employee to receive them 
 
            directly.  Therefore, tips fall under the definition of 
 
            gross earnings pursuant to Iowa Code section 85.61(12).  The 
 
            parties stipulated that at the time of the injury, claimant 
 
            was single with no dependant children.  According the 
 
            appropriate rate book, claimant's workers' compensation rate 
 
            is $93.30.(1)
 
            
 
                                       order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay to claimant healing period benefits 
 
            beginning June 21, 1989 through January 2, 1990 at the rate 
 
            of ninety-three and 30/100 dollars ($93.30) per week.
 
            
 
                 That defendants pay forty (40) weeks of permanent 
 
            partial disability benefits at the rate of ninety-three and 
 
            30/100 dollars ($93.30) beginning January 3, 1990.
 
            
 
                 That defendants shall pay for the costs of the medical 
 
            benefits incurred, and reasonable transportation costs 
 
            incurred.
 
            
 
                 That defendants shall receive credit for benefits for 
 
            previously paid.
 
            
 
                 That defendants shall pay the accrued amounts in a lump 
 
            sum.
 
            
 
                 That defendants shall pay interest pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this proceeding 
 
            as govern by rule 343 IAC 4.33.
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by the agency.
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            (1).  Guide to Iowa Workers' Compensation Claim Handling 
 
            (July 1988)
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr Joseph L Marks
 
            Mr Todd E Babich
 
            Attorneys at Law
 
            Omega Place Ste 9
 
            8515 Douglas Avenue
 
            Urbandale Iowa 50322
 
            
 
            Mr Brian L Campbell
 
            Attorney at Law
 
            801 Grand Avenue Ste 3700
 
            Des Moines Iowa 50309
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1800
 
                      Filed August 28, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CAROLYN HELM (BEEBE),    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 921040
 
            DAHL'S FOOD MART,   :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1800
 
            Claimant's job as a waitress included some heavy lifting, 
 
            and aggravated a preexisting deposition to carpal tunnel, 
 
            bilaterally.
 
            Based on Iowa Code section 85.34(s) and the court's 
 
            interpretation of the same in Simbro, claimant awarded eight 
 
            percent PPD.