BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROSIE TOPPING,                                File No. 921090
 
         
 
              Claimant,                             A R B I T R A T I O N
 
                                                 
 
         VS.                                           D E C I S I O N
 
         
 
         RIVIERA LTD., d/b/a
 
         RIVIERA BALLROOM,                                F I L E D
 
         
 
              Employer,                                  MAY 21 1990
 
              Uninsured,
 
              Defendant.                             INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Rosie Topping 
 
         against her former employer, Riviera Ltd., d/b/a Riviera 
 
         Ballroom. The employer did not appear at hearing and is in 
 
         default for lack of appearance.  The employer was served with 
 
         original notice and petition of this action by certified mail on 
 
         or about September 26, 1989 as shown by proof of service in the 
 
         file.  The return receipt was addressed to Riviera Ballroom and 
 
         the signature "Heine Kurtz" appears on the return receipt.  
 
         Claimant's testimony established that Heine Kurtz is the adult 
 
         son of David Kurtz, one of the operators of the business.  A 
 
         professional statement from claimant's counsel established that 
 
         David Kurtz is the registered agent of the corporation for 
 
         service according to records in the office of the Iowa Secretary 
 
         of State.  The caption of the case was amended to include Riviera 
 
         Ltd.  Testimony from the claimant established that the employer 
 
         held itself out and did business under the name Riviera Ballroom, 
 
         as well as its actual corporation name of Riviera Ltd.
 
         
 
              The file also reflects that on January 4, 1990 an order was 
 
         entered which closed the record to further evidence or activity 
 
         by the employer as a result of the employer's failure to comply 
 
         with an order from the agency to file an answer.  Claimant's 
 
         counsel, by way of professional statement, indicated that he had 
 
         spoken on the telephone with David Kurtz shortly before April 30, 
 
         1990 at which time he informed Kurtz of the time and place of the 
 
         hearing and at which time Kurtz related that he had no workers' 
 
         compensation insurance and no assets.  Exhibit 3 is a letter sent 
 
         by counsel to confirm the occurrence of their conversation.
 
         
 
              The case was heard and fully submitted at Waterloo, Iowa on 
 
         May 16, 1990.  The record in the proceeding consists of testimony 
 
         from Rosie Topping and claimant's exhibits 1, 2 and 3.  Claimant 
 
         waived having a verbatim record made of the hearing.
 
         
 
                                      ISSUES
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In view of the employer's default, claimant was faced with 
 
         the burden of proving all elements of the case, namely, injury 
 
         arising out of and in the course of employment, entitlement to 
 
         weekly compensation for healing period and permanent partial 
 
         disability, the rate of compensation and entitlement to 
 
         additional compensation under the fourth unnumbered paragraph of 
 
         Code section 86.13.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and examined the exhibits, the 
 
         following findings of fact are made.
 
         
 
              Rosie Topping was hired by Dave Kurtz to work at the bar and 
 
         restaurant known as Riviera Ballroom starting in late August or 
 
         early September, 1988.  Topping worked Friday and Saturday nights 
 
         from 5:00 p.m. until approximately 2:00 or 2:30 a.m.  She was 
 
         paid $3.00 per hour and also earned approximately $15.00 per 
 
         night in tips.  She typically earned $84.00 per week.  At the 
 
         time, she was also employed at the North Cedar Truck Stop as a 
 
         cook and waitress where she earned $165.00 per week.
 
         
 
              On October 1, 1988, Topping was pulling a cart with dishes 
 
         at the Riviera Ballroom when it fell over on her.  Her left knee 
 
         swelled immediately and she was unable to walk on it.  David 
 
         Kurtz knew that the incident occurred and had his girlfriend take 
 
         her home because she was unable to complete her work shift.  The 
 
         knee was swollen and claimant was unable to walk on it.
 
         
 
              The following day, she sought treatment at the Sartori 
 
         Hospital emergency room.  She eventually came to be treated by 
 
         orthopaedic surgeon Arnold E. Delbridge, M.D.  She had 
 
         arthroscopic surgery on December 22, 1988 after conservative 
 
         treatment had been unsuccessful.  Dr. Delbridge authorized 
 
         claimant to return to work on January 20, 1989 (exhibit 1, page 
 
         4).  In a report dated May 14, 1990, he rated her as having a 
 
         five percent impairment of her left leg as a result of the knee 
 
         injury (exhibit 1, page 1).  During the course of treatment, 
 
         claimant received physical therapy at Sartori Hospital.  The 
 
         anesthesiologist for the knee surgery was Beth Penrose, M.D. 
 
         According to claimant, all the medical expenses shown in exhibit 
 
         2 were incurred in obtaining treatment for the knee injury.  She 
 
         denied having any problems with her knee prior to October 1, 1988 
 
         and denied any subsequent or intervening trauma to the knee.
 
         
 
              It is found that Rosie Topping injured her left knee when 
 
         she slipped at the Riviera Ballroom on October 1, 1988 and that 
 
         the injury necessitated all the treatment she received for the 
 
         knee and the charges shown in exhibit 2.  The medical services 
 
         which were provided to her were reasonable and the charges for 
 
         those services as shown in exhibit 2 are reasonable.  In the 
 
         course of obtaining that treatment, she made 35 round trips at 5 
 
         miles per trip to the office of Dr. Delbridge and Sartori 
 
         Hospital.  Claimant was medically incapable of performing work in 
 
         employment substantially similar to that she performed at the 
 
         time of injury from October 1, 1988 until January 20, 1989, a 
 
         span of 16 weeks.  Claimant has a five percent impairment of her 
 
         left leg as a result of the injury. At the time of injury, 
 
         claimant's weekly earnings from the Riviera Ballroom were $84.00 
 
         and her weekly earnings from North Cedar Truck Stop were $165.00.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The employer was aware of the injury, the manner in which it 
 
         occurred and has offered no defense to the claim.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on October 1, 1988 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).
 
         
 
              Claimant's testimony was unrebutted and clearly establishes 
 
         that the injury to her left knee arose out of and in the course 
 
         of her employment.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 1, 1988 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).
 
         
 
              Claimant had no prior problems with the knee and had no 
 
         subsequent trauma to the knee.  Dr. Delbridge attributes the 
 
         treatment and permanent impairment to the injury (exhibit 1, page 
 
         1).  It is therefore concluded that the injury of October 1, 1988 
 
         is a proximate cause of the healing period, medical treatment, 
 
         medical expenses and permanent partial disability.
 
         
 
              As claimant has a 5 percent permanent impairment of her left 
 
         leg, she is entitled to recover 11 weeks of compensation for 
 
         permanent partial disability under Iowa Code section 85.34(2)(o).
 
         
 
              Claimant had been employed by Riviera for one month and at 
 
         the truck stop for six months at the time of injury.  Prior to 
 
         that, she had been out of the job market for a considerable 
 
         amount of time.  In her work for the employer, claimant earned 
 
         only $84.00 per week, an amount which is clearly less than the 
 
         normal weekly earnings of the full-time adult worker in any line 
 
         of industry or occupation.  It was her second job.  Her primary 
 
         job paid $165.00 per week.  The primary job was in the same line 
 
         of industry as the job at which she was injured.  This case does 
 
         not fit well under section 85.36.
 
         
 
              It can be reasonably urged that claimant's rate of 
 
         compensation should be determined under the provisions of Code 
 
         section 85.36(10).  The record also reflects, however, that 
 
         claimant was paid by the hour.  Accordingly, it could be 
 
         reasonably urged that claimant's rate of compensation should be 
 
         computed under the provisions of Code section 85.36(6).  Nothing 
 
         in Code section 85.36 restricts subsections (1) through (9) to 
 
         full-time employment.  In fact, the definition of weekly earnings 
 
         contained in 85.36 states:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Weekly earnings means gross salary, wages or earnings of an 
 
              employee to which such employee would have been entitled had 
 
              the employee worked the customary hours for the full pay 
 
              period in which the employee was injured, as regularly 
 
              required by the employee's employer for the work or 
 
              employment for which the employee was employed, . . 
 
              [Emphasis added].
 
         
 
         It is clearly stated in the first paragraph of Code section 85.36 
 
         that the weekly rate of compensation should be based upon the 
 
         employee's customary earnings.  This agency has recognized and 
 
         followed that concept in cases where the rate was determined 
 
         under Code section 85.36(6) by excluding weeks which were not 
 
         representative of typical or customary earnings.  Lewis v. Aalf's 
 
         Mfg. Co., I Iowa Industrial Commissioner Report 206, 207 (App. 
 
         Decn. 1980); Schotanus v. Command Hydraulics, Inc., I Iowa 
 
         Industrial Commissioner Report 294, 298 (1981).
 
         
 
              It is well recognized that Code section 85.36(10) provides 
 
         an unrepresentative wage if it is applied to an employee who has 
 
         not been in the labor force for the full preceding 12 months.  
 
         Lawyer and Higgs, Iowa Workers' Compensation Law and Practice, 
 
         section 12-8.  The gross weekly earnings when computed under 
 
         those circumstances are obviously only a fraction of the 
 
         customary earnings.  Code section 85.36(7) provides a statutory 
 
         exception to the 13-week rule provided by section 85.36(6).  The 
 
         agency has ruled that where no evidence is presented with regard 
 
         to the hours of work the employee would have earned if the 
 
         employee had been employed for the full 13 calendar weeks 
 
         immediately preceding the injury, the proper method of computing 
 
         the gross weekly earnings is to simply divide the total earnings 
 
         by the number of weeks actually worked.  Barker v. City Wide 
 
         Cartage, I Iowa Industrial Commissioner Report 12, 15 (App. Decn. 
 
         1980).
 
         
 
              The intent when determining the rate of compensation is to 
 
         base the rate upon the customary.earnings.  Foster v. Plaza 
 
         Restaurant & Lounge, file number 821588 (Arb. Decn. 1989).  Since 
 
         claimant had been employed by the employer for only one month, it 
 
         does not appear as though the earnings from the Riviera Ballroom 
 
         were part of her customary earnings.  She has not typically 
 
         through her work history held a second job.  It is therefore 
 
         determined that her earnings at the North Cedar Truck Stop 
 
         establish the level of earnings for the full-time adult worker in 
 
         that line of industry or occupation.  Her rate of compensation is 
 
         therefore based upon an earning level of $165.00 per week.  Since 
 
         she is single and has no exemptions other than herself, the rate 
 
         of compensation is therefore $106.31.
 
         
 
              The employer offered no defense to the claim and none is 
 
         apparent from the record.  It is therefore determined that the 
 
         failure to pay compensation was unreasonable and the full 50 
 
         percent penalty authorized by Code section 86.13(4) is 
 
         appropriate.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Since all the medical expenses submitted in exhibit 2 have 
 
         been found to represent the reasonable charges for reasonable 
 
         treatment which was proximately caused by the injury, the 
 
         employer is responsible for the full amount of $2,934.45 under 
 
         Code section 85.27.
 
         
 
              Claimant is also entitled to recover costs as shown in 
 
         exhibit 2 in the amount of $100.00.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that the employer pay claimant 
 
         sixteen (16) weeks of compensation at the rate of one hundred six 
 
         and 31/100 dollars ($106.31) per week commencing October 1, 1988 
 
         for healing period.
 
         
 
              IT IS FURTHER ORDERED that the employer pay claimant eleven 
 
         (11) weeks of compensation for permanent partial disability at 
 
         the rate of one hundred six and 31/100 dollars ($106.31) per week 
 
         payable commencing January 21, 1989.
 
         
 
              IT IS FURTHER ORDERED that the entire award for healing and 
 
         permanent partial disability is past due and shall be paid in a 
 
         lump sum together with interest pursuant to Iowa Code section 
 
         85.30 computed from the date each weekly payment came due until 
 
         the date of actual payment.
 
         
 
              IT IS FURTHER ORDERED that the employer pay claimant the sum 
 
         of one thousand fouR hundred thirty-five and 18/100 dollars 
 
         ($1,435.18) representing fifty percent (50%) of the twenty-seven 
 
         (27) weeks compensation which was unreasonably denied under Iowa 
 
         Code section 86.13(4).  The entire amount thereof is payable in a 
 
         lump sum and draws interest from the date of this decision.
 
         
 
              IT IS FURTHER ORDERED that claimant recover from the 
 
         employer the following medical expenses:
 
         
 
              A. E. Delbridge, M.D.                         $  579.00
 
              Beth Penrose, M.D.                               243.00
 
              Radiological Associates, P.C.                     22.00
 
              Sartori Hospital                               2,053.70
 
              Rosie Topping, mileage                            36.75
 
              Total                                         $2,934.45
 
         
 
              IT IS FURTHER ORDERED that claimant recover from the 
 
         employer the costs of this action pursuant to Division of 
 
         Industrial Services Rule 343-4.33 in the amount of one hundred 
 
         and 00/100 dollars ($100.00).
 
         
 
              IT IS FURTHER ORDERED that the employer file a first report 
 
         of injury and claim activity reports as requested by this agency 
 
         pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 21st day of May, 1990.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert C. Andres
 
         Attorney at Law
 
         616 Lafayette Street
 
         P.O. Box 2634
 
         Waterloo, Iowa  50703
 
         
 
         Riviera Ballroom
 
         Hwy 218
 
         Janesville, Iowa  50647
 
         CERTIFIED MAIL
 
         
 
         Mr. David Kurtz
 
         5010 West Mount Vernon Road
 
         Cedar Falls, Iowa  50613
 
         CERTIFIED MAIL
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1802, 5-1803, 5-4000.2
 
                                            Filed May 21, 1990
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROSIE TOPPING,
 
         
 
              Claimant,
 
                                                 File No. 921090 
 
         vs.
 
                                              A R B I T R A T I 0 N
 
         RIVIERA LTD., d/b/a
 
         RIVIERA BALLROOM,                        D E C I S I 0 N
 
         
 
              Employer,
 
              Uninsured,
 
              Defendant.
 
         
 
         
 
         5-1802, 5-1803, 5-4000.2
 
         
 
              Claimant with uninsured employer awarded healing period, 
 
         scheduled member permanent partial disability and 50% penalty for 
 
         unreasonable failure to pay the claim.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EVALINA GLESS,                :
 
                                          :
 
                 Claimant,                : File Nos.  921093 & 921094  
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            CEL JANITORIAL SERVICES,      :
 
                                          :      D E C I S I O N
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Evalina 
 
            Gless as a result of injuries to her back which occurred on 
 
            October 26, 1988 and November 5, 1988.  Defendant admits 
 
            compensability for the October 26, 1988, injury and denies 
 
            compensability for the November 5, 1988 injury.  No benefits 
 
            were paid by defendant in either case.
 
            
 
                 The case was heard and fully submitted at Davenport, 
 
            Iowa, on March 6, 1991.  The record in the proceeding 
 
            consists of joint exhibits A through D, defendant's exhibits 
 
            2 through 10, the testimony of claimant, Connie Robins and 
 
            Clifford Robins.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination in file number 
 
            921093 are as follows:
 
            
 
                 1.  Claimant's entitlement to medical benefits under 
 
            Iowa Code section 85.27; and
 
            
 
                 2.  Taxation of costs.
 
            
 
                 The issues presented for determination in file number 
 
            921094 are as follows:
 
            
 
                 1.  Whether claimant sustained an injury on November 5, 
 
            1988, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 2.  Claimant's entitlement to temporary total 
 
            disability;
 
            
 
                 3.  Whether claimant gave timely notice of her claim 
 
            pursuant to Iowa Code section 85.23;
 
            
 
                 4.  Claimant's entitlement to medical benefits under 
 
            Iowa Code section 85.27; and 
 
            
 
                 5.  Taxation of costs.
 
            
 
                                 findings of fact
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Claimant, Evalina Gless, worked for CEL Janitorial 
 
            Services in October and November of 1988.  She was a working 
 
            supervisor of a group of workers who cleaned office 
 
            buildings.  On October 26, 1988, claimant, as an employee of 
 
            defendant, was assisting with the disposal of bags of trash 
 
            by depositing the bags into a tall dumpster.  The bags 
 
            weighed between 25 pounds and 50 pounds.  claimant testified 
 
            that the lifting of one bag caused a severe pain in her low, 
 
            mid and upper back.  Claimant returned to work immediately 
 
            and lost no time as a result of the October 26, 1988 
 
            accident.
 
            
 
                 Claimant sought treatment from Peter R. Mitchell, D.C., 
 
            for the back pain that was caused by the October 26, 1988 
 
            injury.  She received treatment on October 27, 1988 and 
 
            October 29, 1988, before sustaining another back injury on 
 
            November 5, 1988, when she was involved in an automobile 
 
            accident.
 
            
 
                 The accident on November 5, 1988, is alleged to be work 
 
            related by claimant.  Claimant had been involved in various 
 
            work activities off and on during the day of November 5, 
 
            1988.  At times claimant's work for employer would require 
 
            her to work evenings and into the early morning hours.  
 
            Claimant reported to Connie Robins who was the wife of a 
 
            part-owner of CEL Janitorial.  On the evening of November 5, 
 
            1988, claimant left the home of Connie Robins after 
 
            finishing the day's work for defendant.  Claimant told 
 
            Connie Robins that she was going home.  Claimant left 
 
            Robins' house at about 9:30 to 10 p.m. on November 5, 1988.  
 
            While on her way home, claimant noticed that the lights were 
 
            on at the Northwest Bank Tower.  Claimant testified that 
 
            this bank was one of defendant's clients and it was her 
 
            responsibility to see that all lights were turned off after 
 
            cleaning had been performed.
 
            
 
                 Claimant did not immediately turn left into several 
 
            available entrances to the bank.  Claimant stated that it 
 
            was a cold icy night and that it took some time for her to 
 
            get to a left lane in order to make a left turn.
 
            
 
                 Claimant did make a left turn at a stop light which was 
 
            beyond the bank.  Claimant stated that she was turning left 
 
            so as to return to the bank in order to shut off the lights.  
 
            However, it should be noted that this left turn would also 
 
            be necessary should claimant take the interstate highway on 
 
            her way home.
 
            
 
                 Claimant never completed the left turn because another 
 
            driver ran a light and struck claimant's vehicle.  She was 
 
            rendered partially unconscious and was taken to the 
 
            hospital.  Claimant testified that as a result of the 
 
            November 5, 1988, automobile accident she experienced 
 
            increased back pain.  The pain was in the same area as the 
 
            pain caused by the October 26, 1988, injury.  Claimant 
 
            stated that the back pain was in the same area, but worse 
 
            than before.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Subsequent to November 5, 1988, claimant sought 
 
            treatment from Dr. Mitchell.  She became dissatisfied with 
 
            his services and went under the care of John T. Rader, D.C., 
 
            on November 7, 1988.  She continued on with treatment by Dr. 
 
            Rader.
 
            
 
                 Claimant returned to work for employer on November 6, 
 
            1988, and worked on November 7, November 8 and November 9.  
 
            Claimant's employment with defendant was terminated on 
 
            November 10, 1988, for reasons unrelated to this case.  
 
            Claimant testified that her work for defendant subsequent to 
 
            November 5, 1988, was supervisory in nature.
 
            
 
                 Claimant was unemployed beginning November 10, 1988, 
 
            and found new employment on March 22, 1989.  Claimant 
 
            alleges that she was temporarily totally disabled during 
 
            this time as the treating doctor had placed restrictions 
 
            upon her work activities.
 
            
 
                 Connie Robins testified that she worked for CEL 
 
            Janitorial in October and November 1988.  Robins' husband is 
 
            a part-owner of CEL Janitorial.  She stated that on the 
 
            night of November 5, 1988, claimant stated that she was 
 
            going home by the shortest route which was the interstate.
 
            
 
                 Clifford Robins testified that he is a part-owner of 
 
            CEL Janitorial.  He stated that on November 5, 1988, he was 
 
            in England.  He testified that his company was responsible 
 
            for turning off the bank lights only after CEL employees had 
 
            cleaned.  It was his belief that CEL employees only cleaned 
 
            the bank's lobby on Saturdays.  The remaining upper floors 
 
            of the multi-story bank bulding were to be cleaned Monday 
 
            night through Friday night.
 
            
 
                 The first issue to be resolved concerns whether 
 
            claimant sustained an injury on November 5, 1988, arising 
 
            out of and in the course of employment with employer
 
            
 
                 It is the general rule in Iowa that work begins at the 
 
            time a worker arrives at employer's place of employment and 
 
            ends when the worker leaves the premises.  It is claimant's 
 
            burden to prove by a preponderance of the evidence that at 
 
            the time of the accident on November 5, 1988, she was in the 
 
            course of employment.
 
            
 
                 The evidence clearly reveals that just prior to the 
 
            accident, claimant was on her way home and not in the course 
 
            of employment.  The evidence also reveals that the left turn 
 
            which claimant attempted resulted in an automobile accident.  
 
            The left turn could be interpreted as a turn which would 
 
            take claimant to the interstate highway and on to her home.  
 
            It could also be interpreted as a diversion back to a work 
 
            site at the Northwest Bank Tower.  Claimant had the 
 
            opportunity to turn toward the bank several times prior to 
 
            coming to the intersection where the accident occurred.
 
            
 
                 It is found that claimant has failed to prove by a 
 
            preponderance of the evidence that she was in the course of 
 
            employment at the time of the November 5, 1988, automobile 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            accident.  Claimant failed to prove that she had altered her 
 
            route on the way home so as to take her back to the work 
 
            site.
 
            
 
                 Claimant has failed to prove that she sustained an 
 
            injury on November 5, 1988, which arose out of and in the 
 
            course of employment with employer.  This issue is 
 
            dispositive of all other issues in file number 921094 and 
 
            further analysis is unnecessary with the exception of 
 
            taxation of costs which will be addressed later in the 
 
            decision.
 
            
 
                 The next issue concerns claimant's entitlement to 
 
            medical benefits in file number 921093.
 
            
 
                 It was stipulated that claimant sustained an injury to 
 
            her low back on October 26, 1988, arising out of and in the 
 
            course of employment with employer.  She began receiving 
 
            medical treatment for back pain on October 27, 1988, and 
 
            continued on with such treatment into 1989.  However, as 
 
            previously discussed, claimant incurred an intervening 
 
            injury on November 5, 1988.  The question becomes whether 
 
            subsequent to November 5, 1988, the treatment was related to 
 
            the October 26, 1988 injury.
 
            
 
                 It is found that claimant has failed to prove that her 
 
            treatment for back pain, subsequent to November 5, 1988, was 
 
            related to the earlier injury.  The issue of causation is 
 
            primarily one for medical experts.  In this case, the 
 
            treating doctor was of the opinion that claimant's 
 
            treatment, subsequent to November 5, 1988, was related to 
 
            the injury of the same date (joint exhibit C and D2).  Dr. 
 
            Rader's opinion is more credible than other medical 
 
            providers as he treated claimant for a longer period of time 
 
            than did Dr. Mitchell.
 
            
 
                 The next question concerns the extent of entitlement to 
 
            benefits prior to November 5, 1988.  Defendant's exhibit 4 
 
            reveals that claimant was treated by Dr. Mitchell on October 
 
            27, 1988, and October 29, 1988, with a resulting cost of 
 
            $85.  Claimant testified that the treatments were a direct 
 
            result of the October 26, 1988 injury.  It is found that the 
 
            medical expenses incurred with Dr. Mitchell on October 27, 
 
            1988 and October 29, 1988, were causally connected to the 
 
            work injury of October 26, 1988.  It is also found, based 
 
            upon testimony and exhibits, that the treatment rendered by 
 
            Dr. Mitchell was reasonable and necessary medical treatment 
 
            for a spinal injury.
 
            
 
                 Claimant has proven entitlement to reimbursement for 
 
            $85 of medical expenses in file number 921093.
 
            
 
                 The last issue concerns taxation of costs.  Such costs 
 
            may be assessed at the discretion of the deputy commissioner 
 
            hearing the case.  
 
            
 
                 In the case at hand, claimant's costs consist of her 
 
            filing costs and any costs associated with the taking of 
 
            Clifford Robins' deposition.  Defendant's costs are listed 
 
            as costs of taking the claimant's deposition and the cost of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            attendance of a court reporter at the hearing on March 6, 
 
            1991.
 
            
 
                 Since each party prevailed in one case, it is 
 
            appropriate for the respective parties to pay their own 
 
            costs.  That is, claimant is responsible for her filing fees 
 
            in both file numbers and for the expense of taking Clifford 
 
            Robins' deposition.  Defendant is responsible for the costs 
 
            of claimant's deposition and the cost of the court 
 
            reporter's attendance at the March 6, 1991 hearing.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injuries on October 26, 
 
            1988 and November 5, 1988, 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 words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 Unless it can be fairly said the employee, while 
 
                 going to or from his regular place of work is 
 
                 engaged in a place where his employer's business 
 
                 requires his presence, his injury en route is not 
 
                 compensable.  It does not arise out of and in the 
 
                 course of his employment.
 
            
 
                 ....
 
            
 
                 The general rule is conceded to be that the course 
 
                 of employment commences after the employee reaches 
 
                 the premises where his actual work begins and is 
 
                 carried on and ceases when he leaves.
 
            
 
            Otto v. Independent School District, 237 Iowa 991, 993, 994; 
 
            23 N.W.2d 915, 916 (1946).
 
            
 
                 Claimant has failed to prove by a preponderance of the 
 
            evidence that she sustained an injury on November 5, 1988, 
 
            arising out of and in the course of employment.  Claimant 
 
            takes nothing from file number 921094.
 
            
 
                 The opinions of experts need not be couched in 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  The expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection between the 
 
            injury and the disability.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 The employer, for all injuries compensable under 
 
            chapter 85 or chapter 85A, shall furnish reasonable 
 
            surgical, medical, dental, osteopathic, chiropractic, 
 
            podiatric, physical rehabilitation, nursing, ambulance and 
 
            hospital services and supplies; therefore, and shall allow 
 
            reasonable necessary transportation expenses incurred for 
 
            such services.  The employer has the right to choose the 
 
            provider of care.  Iowa Code section 85.27.
 
            
 
                 Claimant has proven entitlement to payment of medical 
 
            expenses in file number 921093 totalling $85.
 
            
 
                 All costs incurred in the hearing before the deputy 
 
            commissioner shall be taxed in the discretion of the deputy 
 
            commissioner unless otherwise required by the rule of civil 
 
            procedure governing discovery.  Iowa Code section 86.40.  
 
            Rule 343 IAC 4.33.
 
            
 
                 The parties are responsible for payment of their own 
 
            costs as specified in the decision.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 
                 That claimant's petition in file number 921094 is 
 
            dismissed.
 
            
 
                 That claimant take nothing in file number 921094.
 
            
 
                 That defendant pay to claimant eighty-five dollars 
 
            ($85) as Iowa Code section 85.27 expenses in file number 
 
            921093.
 
            
 
                 That the parties pay their own respective costs in file 
 
            number 921093 and 921094 as outlined in the findings of 
 
            fact.
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Jack Schwartz
 
            Attorney at Law
 
            1800 3rd Ave.
 
            STE 308, Safety Bldg.
 
            Rock Island, Illinois  61201
 
            
 
            Mr. Allan Hartsock
 
            Attorney at Law
 
            PO Box 4298
 
            Rock Island, Illinois  61204-4298
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      52500 51100 51107
 
                      Filed April 1, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EVALINA GLESS,                :
 
                                          :
 
                 Claimant,                : File Nos.  921093 & 921094  
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            CEL JANITORIAL SERVICES,      :
 
                                          :      D E C I S I O N
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            52500
 
            In first file number, liability was stipulated and claimant 
 
            established entitlement to medical benefits.
 
            
 
            51100 51107
 
            Claimant was in auto accident while on her way home.  
 
            Claimant alleged that she was actually turning around to go 
 
            back to work at a work site where lights had been left on.  
 
            Claimant failed to establish that the accident arose out of 
 
            and in the course of employment.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      52500 51100 51107
 
                      Filed April 1, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            EVALINA GLESS,                :
 
                                          :
 
                 Claimant,                : File Nos.  921093 & 921094  
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            CEL JANITORIAL SERVICES,      :
 
                                          :      D E C I S I O N
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            52500
 
            In first file number, liability was stipulated and claimant 
 
            established entitlement to medical benefits.
 
            
 
            51100 51107
 
            Claimant was in auto accident while on her way home.  
 
            Claimant alleged that she was actually turning around to go 
 
            back to work at a work site where lights had been left on.  
 
            Claimant failed to establish that the accident arose out of 
 
            and in the course of employment.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            GUSTAVO ARAUJO,     
 
                      
 
                 Claimant,                      File No. 921097
 
                      
 
            vs.                                   A P P E A L
 
                      
 
            IBP, INC.,                          D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed September 19, 1990 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            
 
            Defendant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
            
 
                                       ________________________________
 
                                               BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. J. W. Conway
 
            Attorney at Law
 
            P.O. Box 237
 
            Muscatine, Iowa 52761
 
            
 
            Ms. Marie L. Welsh
 
            Litigation Attorney
 
            P.O. Box 515, Dept. #41
 
            Dakota City, NE  68731
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               9998
 
                                               Filed June 30, 1992
 
                                               Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            GUSTAVO ARAUJO,     
 
                      
 
                 Claimant,                   File No. 921097
 
                      
 
            vs.                                A P P E A L
 
                      
 
            IBP, INC.,                       D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ____________________________________________________________
 
           
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed September 
 
            19, 1990.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GUSTAVO ARAUJO,               :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 921097
 
            vs.                           :
 
                                          :
 
            IBP, INC.,                    :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This case came on for hearing on September 7, 1990, in 
 
            Burlington, Iowa.
 
            
 
                 This is a proceeding in arbitration wherein claimant 
 
            seeks compensation for permanent partial disability benefits 
 
            to his hand/upper extremity as a result of an alleged injury 
 
            occurring November 16, 1988.  The record in the proceeding 
 
            consists of the testimony of the claimant and Sherri Wilson, 
 
            and joint exhibits A through J.
 
            
 
                 A tape was made of the testimony of claimant as 
 
            claimant was unable to speak English.  As provided under the 
 
            provisions of Chapter 622A, an interpreter was provided and 
 
            the tape preserved.  The parties agreed that the interpreter 
 
            has a total of five hours at the rate of $15 per hour and as 
 
            provided under 622A.4 as to fees set by the court, the 
 
            parties agreed that $75 would be assessed as part of the 
 
            costs for the services of the interpreter.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's injury arose out of and in the 
 
            course of his employment;
 
            
 
                 2.  Whether claimant's alleged condition is causally 
 
            connected to his November 16, 1988 injury;
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits;
 
            
 
                 4.  Whether claimant gave timely notice under the 
 
            provisions of Iowa Code section 85.23;
 
            
 
                 5.  Whether claimant is entitled to temporary partial 
 
            disability benefits if it is found the employee refused to 
 
            accept suitable work, as provided under Iowa Code section 
 
            85.33(3); and,
 
            
 
                 6.  Whether claimant is entitled to Iowa Code section 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            85.27 medical benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 35-year-old Mexican emigrant who lived in 
 
            defendant employer's housing in Washington, Iowa while 
 
            working for defendant employer until he was expelled from 
 
            this housing after his surgery in December 1988.  Claimant 
 
            is married and his wife is living in Mexico with claimant's 
 
            three dependent children.  The last time claimant lived with 
 
            his wife and children was in 1986 but they have never been 
 
            divorced and he emphasized there was no reason to.  The last 
 
            time claimant sent money to his family was approximately 
 
            five months ago when his brother gave him $200 to send.  
 
            Claimant said he sent his wife money when he was working at 
 
            IBP and estimated the amount to be approximately $200.  
 
            Claimant came to the United States the latter part of 
 
            December 1986.
 
            
 
                 The parties agreed in their prehearing report that 
 
            claimant was single with one exemption.  It appears obvious 
 
            that this stipulation was contrary to the facts.  It does 
 
            appear that the parties may not have known until the 
 
            claimant's testimony as to the number of exemptions as the 
 
            attorneys seemed surprised.  It was also obvious that they 
 
            just presumed he was single and had only one exemption.  The 
 
            language barrier may have aided in this confusion.  The 
 
            undersigned finds that claimant is married and has three 
 
            children and any rate would be based on five exemptions.
 
            
 
                 Claimant first began working for IBP on November 9, 
 
            1988.  After the first few days of work, claimant felt his 
 
            finger and left hand become stiff and hurting.  On November 
 
            16, 1988, claimant was working on the assembly line area in 
 
            which his duties involved hooking the hogs along the 
 
            conveyor belt.  On this date, claimant indicated the line 
 
            was moving quite fast and some of the hooks were falling on 
 
            the floor.  Claimant bent over to pick up a hook and the 
 
            line continued to move with the hogs.  In desperation, 
 
            claimant tried to catch and bring together the hogs on line 
 
            and in the process injured his hand.  Claimant was then 
 
            unable to exercise control over his fingers and eventually 
 
            was unable to move them.
 
            
 
                 Since claimant was unable to speak English, he looked 
 
            for the company interpreter, Claudio Meza, and told him of 
 
            his injury.  He indicated Mr. Meza was going to notify the 
 
            bosses, one of which was a Mr. Griffin.  Although claimant 
 
            had not been working for defendant employer very long, and 
 
            was not familiar with people's names, he was able to 
 
            determine the bosses from the different color of helmets 
 
            certain employees would wear.  Claimant relied on Mr. Meza 
 
            to tell his employer and the claimant indicated that Mr. 
 
            Meza did tell two supervisors, one of which was Mr. Griffin, 
 
            in the presence of claimant, that claimant was unable to 
 
            move his hand.  Claimant said that he was told he was 
 
            preoccupied with his problem and it was only the result of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            being tired.  Claimant was told to go to the infirmary, 
 
            which he did.  Claimant said he had to put his left hand in 
 
            wax at the infirmary.  Claimant couldn't recall the exact 
 
            days involved but it is obvious from the evidence and the 
 
            time frame that this all took place in a very short period 
 
            of time from claimant's November 16, 1988 injury.  Claimant 
 
            said that this hand wax treatment at the infirmary did not 
 
            help and the employer put him back to work at an easy job.  
 
            Claimant's hand did not get better and he could not control 
 
            his finger.  Claimant said he would tell his bosses that he 
 
            needed to see a doctor and they said "no."  Defendant 
 
            employer indicated that the hand would get better.  Claimant 
 
            said this lasted approximately two more weeks.  Claimant 
 
            only told Mr. Meza, the interpreter, to tell the company 
 
            that claimant could not continue working and wanted to see a 
 
            doctor.  Claimant understood that Mr. Griffin, his foreman, 
 
            received the message and understood Mr. Griffin indicated he 
 
            didn't care.  Claimant then left work and went to Muscatine, 
 
            Iowa, to look for a doctor and a lawyer.  Claimant's last 
 
            day of work was December 10, 1988.
 
            
 
                 Claimant went to Leo Kulick, M.D., in Muscatine, at a 
 
            medical clinic.  Claimant understood that defendant employer 
 
            has used doctors at this clinic previously.
 
            
 
                 On or around December 14, 1989, claimant had carpal 
 
            tunnel syndrome-type surgery which left a scar beginning on 
 
            the middle of his left hand, up his wrist and arm to 
 
            approximately three or four inches below his elbow.
 
            
 
                 On February 7, 1989, Dr. Kulick's notes indicate that 
 
            claimant's condition:
 
            
 
                 May take up to a year post op to determine what 
 
                 his final functional baseline will be.  Has gained 
 
                 sufficient improvement at this time to restore the 
 
                 intrinsic balance of the hand, though there is 
 
                 still a pronounced deficit in grip strength.  
 
                 Anticipate that there will be some degree of motor 
 
                 deficit at maximal recovery.  Sufficiently healed 
 
                 at this point in time to ret to work w/several 
 
                 restrictions.  Will be difficult since he is a 
 
                 laborer.  Should avoid strenuous, repetitive high-
 
                 volume work, similar to the type which 
 
                 precipitated his injury.  Should also avoid 
 
                 strenuous grip maneuvers, particul [sic} when he 
 
                 is still weak, which require generation of more 
 
                 than 20-30 lbs of lift force in 1t upper ext.  To 
 
                 continue wearing a night splint for next 2 mos; 
 
                 continue w/regular exercise program as currently.
 
            
 
            (Joint Exhibit A, page 2)
 
            
 
                 Claimant last saw Dr. Kulick on this February 7, 1989 
 
            visit.  Claimant is living in Chicago and is currently 
 
            unemployed.  Claimant was out of work approximately four 
 
            months when he got a dish washing job that was part-time for 
 
            approximately five months.  Claimant said that he tried to 
 
            get a factory job, but when they saw his scars they would 
 
            not hire him.  Claimant never did return back to Iowa to see 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the doctor for any impairment rating even though the doctor 
 
            had indicated on February 7, 1989 that it may take up to a 
 
            year to determine his final functional baseline.  Claimant 
 
            is being supported currently by his brother with whom he 
 
            lives in Chicago.
 
            
 
                 Sherri Wilson, who was in the security department at 
 
            the time of claimant's alleged injury and later promoted to 
 
            the workers' compensation coordinating position in March 
 
            1989, testified that there would have been nurse's notes in 
 
            claimant's record if he had gone to the infirmary in 1988.  
 
            Although hearsay can be admitted in administrative hearings 
 
            and commonly is, the deputy determines the weight it is to 
 
            be given.  This witness' testimony is in almost every 
 
            respect hearsay or hearsay upon hearsay.  This witness' 
 
            hearsay contacts in the first instance were one-half years 
 
            or so from the time of the alleged injury.  The undersigned 
 
            finds that Sherri Wilson's testimony is of no real weight in 
 
            helping the undersigned determine the issues in this case, 
 
            and the undersigned sees no reason to further elaborate on 
 
            the testimony or draw any further conclusions from her 
 
            testimony because of the lack of weight, and in some 
 
            instances lack of credibility given to it.
 
            
 
                 The undersigned finds that the claimant is a credible 
 
            witness and it can easily be inferred from the evidence and 
 
            testimony that the attitude defendant has had toward this 
 
            claimant may have been affected by the fact that he is 
 
            unable to speak English and is an emigrant from Mexico.  The 
 
            undersigned finds that claimant did injure himself on or 
 
            around November 16, 1988, while working for defendant 
 
            employer, and that claimant's injury arose out of and in the 
 
            course of his employment.  The undersigned also finds that 
 
            defendant did not offer medical help to this claimant and 
 
            basically disregarded his desire and need for medical help. 
 
            
 
                  The parties set out the 85.27 benefits issue.  The 
 
            undersigned finds that because defendant denied liability, 
 
            it has no right to choose claimant's medical care and, in 
 
            fact, did not choose any medical care for this claimant and 
 
            claimant needed medical care.  Defendant is in no position 
 
            to claim that claimant did not have authorization for his 
 
            medical.  The defendant insists that it still has the right 
 
            to choose claimant's medical care even though it denied 
 
            liability and refused to acknowledge an injury or send 
 
            claimant to a doctor.  The undersigned has a hard time 
 
            comprehending defendant's position on this particular issue.
 
            
 
                 The undersigned finds that claimant's medical condition 
 
            resulting in a carpal tunnel syndrome surgery and the 
 
            medical bills connected therewith is causally connected to 
 
            claimant's injury of November 16, 1988.
 
            
 
                 The parties set out an 85.23 notice requirement as an 
 
            issue.  The undersigned has found claimant to be credible 
 
            and has given little weight, if any, to any oral testimony 
 
            put on the record by defendant.  The undersigned believes 
 
            that claimant did, in fact, through the company's 
 
            interpreter, give notice and whether that notice did, in 
 
            fact, reach anyone else with defendant employer, or whether 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            it was placed on claimant's record, is immaterial.  Claudio 
 
            Meza is a company employee.  If defendant had provided the 
 
            medical care for claimant, it would have knowledge as to the 
 
            medical and claimant's surgery and required medical care, 
 
            all of which would have been within all time requirements.  
 
            The undersigned finds that defendant employer did, in fact, 
 
            have timely notice under the provisions of Iowa Code section 
 
            85.23.
 
            
 
                 Defendant has set out an 85.33(3) issue.  The 
 
            undersigned does not understand where or why this is an 
 
            issue in this case as there is no evidence or testimony that 
 
            was supported or given rise to its consideration.  Claimant 
 
            quit work because he needed medical care and, in fact, did 
 
            get medical care which resulted in surgery.
 
            
 
                 The final issue is the extent of claimant's disability.  
 
            We have a scheduled injury to claimant's upper extremity.  
 
            There is no impairment rating by a doctor, but it is obvious 
 
            as of February 7, 1989, claimant's last visit to the doctor, 
 
            the doctor was unable to give an impairment rating.  It is 
 
            obvious from this record that there were functional 
 
            limitations and restrictions and the doctor determined that 
 
            it may take a year after the operation to determine what his 
 
            final functional baseline will be.  There is nothing in the 
 
            record to indicate why claimant has not returned to the 
 
            doctor, but it also can be inferred from the testimony that 
 
            with claimant's present unemployment situation, language 
 
            barrier, distance from Chicago to Iowa, being unemployed, 
 
            the defendant denying liability, and obviously having no 
 
            other insurance, the economic reality of the circumstances 
 
            has affected claimant's desire in this area.
 
            
 
                 Based on all the evidence, the undersigned can 
 
            determine that claimant does have an impairment.  The doctor 
 
            indicated (Jt. Ex. A, p. 2) that he "anticipates that there 
 
            will be some degree of motor deficit at maximum recovery."  
 
            The medical report indicates that claimant had severe ulnar 
 
            and near complete low median nerve palsy.  In looking at the 
 
            surgical scar, it went from the palm of the hand all the way 
 
            up the arm to just a few inches below the elbow.  The 
 
            undersigned finds that claimant's impairment is to his upper 
 
            extremity and is not limited to his hand.  The undersigned 
 
            finds that claimant has a 15 percent impairment to his left 
 
            upper extremity.  Claimant is entitled to 37.5 weeks at the 
 
            weekly rate of $171.86.  Claimant is further entitled to 
 
            have defendant pay for the medical expenses reflected on 
 
            Joint Exhibit J, in the total amount of $4,754.70.
 
            
 
                 Claimant contends that his healing period began 
 
            December 11, 1988 to and including February 7, 1989.  
 
            Defendant contends it is not responsible or liable for 
 
            anything, but does agree if, in fact, claimant would be 
 
            covered and liability is found, that the healing period 
 
            would be no greater than December 14 to and including 
 
            February 7, 1989.  The undersigned is not certain how the 
 
            parties arrived at their dates other than the claimant is 
 
            considering that the healing period began on December 11, 
 
            1988 because claimant's last day of work was December 10, 
 
            1988.  Defendant apparently feels that December 11, 12 and 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            13 were days that claimant wasn't healing because he did not 
 
            have his surgery until December 14, 1988.  The undersigned 
 
            finds that neither position of the attorneys is correct 
 
            under the law.  Just because defendant employer did not 
 
            provide any medical attention to the claimant does not mean 
 
            he wasn't injured or in a healing period.  In fact, claimant 
 
            testified that he was told he was preoccupied with what 
 
            caused his injury and it would be over in a few days and to 
 
            go back to work.  It is obvious his injury wasn't over in a 
 
            few days.  Claimant was in a healing period beginning 
 
            December 11, 1988, and this healing period existed at least 
 
            to and including February 7, 1989, which is the the date of 
 
            the last medical notes from any doctor.  In reading those 
 
            notes, the undersigned questions whether claimant was, in 
 
            fact, fully healed by that time, but since there was no 
 
            other further medical evidence and since both parties at 
 
            least indicated it was no later than that date, the 
 
            undersigned will accept the February 7, 1989 date.  The 
 
            undersigned finds that claimant incurred a healing period 
 
            beginning December 11, 1988 through and including February 
 
            7, 1989, amounting to 8.429 weeks at the rate of $171.86.  
 
            It appears claimant was paid his wages from November 16, 
 
            1988 through December 10, 1988.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on November 16, 
 
            1988, which arose out of and in the course of his 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 
 
            16, 1988 is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
            
 
                 Expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts 
 
            need not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  However, the expert opinion may be accepted or 
 
            rejected, in whole or in part, by the trier of fact.  Id. at 
 
            907.  Further, the weight to be given to such an opinion is 
 
            for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability.  Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); 
 
            Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
            Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 
 
            1983).
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 It is further concluded:
 
            
 
                 That claimant incurred a work-related injury on 
 
            November 16, 1988, which arose out of and in the course of 
 
            his employment, and that claimant's medical condition 
 
            resulting in a carpal tunnel and ulnar surgery was causally 
 
            connected to claimant's November 16, 1988 injury.
 
            
 
                 That claimant gave adequate and timely notice to 
 
            defendant employer and, therefore, complied with Iowa Code 
 
            section 85.23.
 
            
 
                 That claimant did not refuse to work nor did claimant 
 
            in any way violate section 85.33(3) of the Iowa Code.
 
            
 
                 Claimant incurred a healing period beginning December 
 
            11, 1988 to and including February 7, 1989, amounting to 
 
            8.429 weeks.
 
            
 
                 That claimant is entitled to have all of his medical 
 
            paid per Joint Exhibit J which currently amounts to 
 
            $4,754.70.  These charges were reasonable and necessary and 
 
            causally connected to claimant's November 16, 1988 injury.  
 
            Since defendant denied liability and did not provide medical 
 
            care to claimant, defendant is responsible for all of 
 
            claimant's medical
 
            
 
                 That claimant has a 15 percent impairment to his left 
 
            upper extremity as a result of his work-related injury on 
 
            November 16, 1988.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 That claimant is entitled to five exemptions, including 
 
            himself, his wife and three children.
 
            
 
                 That claimant's benefits are to be paid at the weekly 
 
            rate of $171.86.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay unto claimant healing period 
 
            benefits at the rate of one hundred seventy-one and 86/100 
 
            dollars ($171.86) for the period beginning December 11, 1988 
 
            to and including February 7, 1989, which involves eight 
 
            point four two nine (8.429) weeks.
 
            
 
                 That defendant shall pay unto claimant thirty-seven 
 
            point five (37.5) weeks of permanent partial disability 
 
            benefits at the rate of one hundred seventy-one and 86/100 
 
            dollars ($171.86), beginning February 8, 1989.
 
            
 
                 That defendant shall pay the accrued weekly benefits in 
 
            a lump sum.  Since defendant has paid no benefits, there is 
 
            no credit due defendant.
 
            
 
                 That defendant shall pay all of claimant's medical 
 
            expenses, which currently amount to four thousand seven 
 
            hundred fifty-four and 70/100 dollars ($4,754.70).
 
            
 
                 That defendant shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this action, 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendant shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to Division of Industrial Services Rule 343-3.1
 
            
 
                 Signed and filed this _____ day of September, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr J W Conway
 
            Attorney at Law
 
            210 Cedar St
 
            P O Box 237
 
            Muscatine IA 52761
 
            
 
            Mr Marlon D Mormann
 
            Attorney at Law
 
            P O Box 515
 
            Dept #41
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Dakota City IA 68731
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          51100; 51108; 51803
 
                                          52503
 
                                          Filed September 19, 1990
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GUSTAVO ARAUJO,               :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 921097
 
            vs.                           :
 
                                          :
 
            IBP, INC.,                    :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            51100; 51108
 
            Found claimant's injury arose out of and in the course of 
 
            and found causal connection of claimant's condition to the 
 
            injury.
 
            
 
            51803
 
            Claimant awarded healing period benefits and 37.5 weeks of 
 
            permanent partial disability benefits for a 15 percent 
 
            impairment to his left upper extremity.
 
            
 
            52503
 
            Claimant awarded medical benefits as defendant denied 
 
            liability and did not provide claimant with medical care.  
 
            Defendant insisted it still has right to choose medical care 
 
            even if it denied liability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENISE EARLY,                 :
 
                                          :
 
                 Claimant,                :         File No. 921112
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            IBP, INC.,                    :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration filed by Denise 
 
            Early, claimant, against IBP, Inc., employer and 
 
            self-insured defendant, for benefits as a result of an 
 
            injury which occurred on June 29, 1989.  A hearing was held 
 
            in Council Bluffs, Iowa, on May 14, 1992, and the case was 
 
            fully submitted at the close of the hearing.  Claimant 
 
            appeared pro se, but consulted with Johnny Rodgers, who was 
 
            also present in the courtroom.  Defendant was represented by 
 
            Marie L. Welsh.
 
            
 
                 The record consists of the testimony of Denise Early, 
 
            claimant; Cindy Pappas, defendant's workers' compensation 
 
            coordinator; claimant's exhibit 6, pages 1 and 3 through 8; 
 
            and, defendant's exhibits A through H.  Claimant's exhibits 
 
            1 through 5, page 2 of exhibit 6, and exhibits 7 through 13 
 
            were excluded from evidence at the objection of defendant 
 
            for the reason that they were not timely served prior to 
 
            hearing pursuant to paragraph 6 of the hearing assignment 
 
            order.  Employer presented an excellent hearing brief at the 
 
            time of hearing.
 
            
 
                                      issues
 
            
 
                 The parties presented the following issues for 
 
            determination at the time of hearing.
 
            
 
                 Whether the injury was the cause of temporary 
 
            disability.
 
            
 
                 Whether claimant is entitled to temporary or permanent 
 
            disability benefits, and, if so, the extent of benefits to 
 
            which she is entitled.
 
            
 
                 Whether claimant is entitled to medical benefits.
 
            
 
                 Whether claimant is barred from receiving temporary 
 
            disability benefits for refusing to accept suitable work as 
 
            provided for in Iowa Code section 85.33(3) was asserted as 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            an affirmative defense by employer.
 
            
 
                                 findings of fact
 
            
 
             causal connection -- entitlement -- temporary disability
 
            
 
                 It is determined that the injury was the cause of 
 
            temporary disability, however, that claimant is not entitled 
 
            to temporary disability benefits for the reason that 
 
            defendant offered claimant suitable work as provided for in 
 
            Iowa Code section 85.33(3) which claimant refused to accept.
 
            
 
                 Claimant severed the distal phalanx of her right index 
 
            finger in a machine at work.  She was taken to Mercy 
 
            Hospital in Council Bluffs where she was seen by Joel 
 
            Bleicher, M.D., a plastic surgeon.
 
            
 
                 Claimant complained that the portion of her finger that 
 
            was traumatically severed was not returned to her.  However, 
 
            Dr. Bleicher, in his surgical report, stated:
 
            
 
                 This patient is a 30 year old female who caught 
 
                 her right index finger in a chain sprocket.  This 
 
                 occurred at IBP while at work.  This was a 
 
                 traumatic crush type amputation of the index 
 
                 finger and the piece that was brought in was not 
 
                 usable being too badly damaged for use.
 
            
 
            (Claimant's exhibit 6, page 8)
 
            
 
                 There is no evidence that the medical people asked 
 
            claimant whether she wanted the badly damaged distal 
 
            phalanx; nor is there any evidence that claimant requested 
 
            that this portion of her finger be returned to her at any 
 
            time while it was still possible to do so.
 
            
 
                 Dr. Bleicher reported that the wound was debrided of 
 
            nonviable tissue as well as some fatty tissue which appeared 
 
            to be devitalized.  Then a full thickness skin graft was 
 
            obtained from the thenar eminence and the donor site was 
 
            closed (claimant's exhibit 6, page 8).
 
            
 
                 Dr. Bleicher reported on June 29, 1989, to employer on 
 
            an Emergency Services form with a Mercy Hospital letterhead 
 
            that the patient could return to work but for limited duty 
 
            only (defendant's exhibit F).  Claimant signed the release 
 
            of information at the bottom of this form and acknowledged 
 
            that she received a copy of the report (defendant's exhibit 
 
            F).
 
            
 
                 Cindy Pappas, workers' compensation coordinator for 
 
            defendant, testified that she called claimant on the 
 
            telephone the following day and notified claimant that she 
 
            was expected to return to work at the normal time, 11:00 
 
            p.m., for the reason that Dr. Bleicher said that claimant 
 
            could return to work for limited duty and employer had 
 
            limited duty which she could perform.  Pappas documented 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            this telephone conversation with a memorandum (defendant's 
 
            exhibit G).  Both in the memorandum and at the hearing, 
 
            Pappas testified that claimant refused to return to work 
 
            under any circumstances, irrespective of what the doctor 
 
            said or what employer wanted (defendant's exhibit G).
 
            
 
                 Claimant testified that she was unable to return to 
 
            work because she was in shock from the traumatic loss of the 
 
            distal portion of her index finger; she was groggy from 
 
            taking Tylenol III; and, she had no transportation to work 
 
            because her car was still at the plant and claimant was at 
 
            home.  Claimant stated that employer's expectation that she 
 
            should return to work under the circumstances was 
 
            insensitive and unreasonable.
 
            
 
                 Pappas testified at hearing that she had discussed 
 
            light duty with claimant's supervisor and that it was 
 
            arranged that claimant would answer telephones.  There may 
 
            have been a breakdown in communications at this time because 
 
            Pappas did not testify that she communicated to claimant 
 
            that claimant would be answering telephones.  At the same 
 
            time, claimant did not inquire about the nature of the light 
 
            duty that she would be expected to perform.
 
            
 
                 Pappas maintained that claimant stated that she would 
 
            get her own doctor and obtain evidence that she should be 
 
            taken off work.  Pappas contended that claimant was advised 
 
            that, if she retained other physicians, she would have to 
 
            pay the cost for them.  There was no evidence that claimant 
 
            obtained her own physician at her own expense who took her 
 
            off work.
 
            
 
                 Pappas testified that she wrote a letter to claimant on 
 
            June 30, 1989, to clarify the rights and liabilities of the 
 
            parties and to record what had been discussed.  The first 
 
            paragraph of that letter reads as follows:
 
            
 
                 As you know, Dr. Bleicher informed you that you 
 
                 could return to work on June 30, 1989 to light 
 
                 duty work status.  A light duty job is available 
 
                 for you that fits in accordance to your 
 
                 restrictions.  IBP will work with you, including 
 
                 working on a different shift or starting you out a 
 
                 couple hours per day until you are able to 
 
                 tolerate a full shift.
 
            
 
            (Defendant's exhibit H)
 
            
 
                 Pappas further informed claimant that, if she chose an 
 
            unauthorized physician, it would be done at her own cost.
 
            
 
                 The letter further explained to claimant that employer 
 
            would pay reasonable mileage to and from authorized 
 
            physician appointments; that claimant could charge 
 
            prescriptions at Walgreens Pharmacy on the employer's 
 
            account; and, that if claimant received any medical bills at 
 
            home, to submit them to Pappas for payment (defendant's 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            exhibit H).
 
            
 
                 Iowa Code section 85.33(3) provides that employer is 
 
            entitled to furnish claimant suitable work consistent with 
 
            the employee's disability and that the employee shall accept 
 
            the suitable work and be compensated with temporary partial 
 
            disability benefits.  This section concludes by stating:  
 
            "If the employee refuses to accept the suitable work the 
 
            employee shall not be compensated with temporary partial, 
 
            temporary total, or healing period benefits during the 
 
            period of the refusal."  Answering telephones would be work 
 
            considered to be suitable work consistent with the 
 
            employee's disability within the context of this Code 
 
            section for this particular injury.
 
            
 
                 Claimant's desire to remain off work due to the 
 
            traumatic severance and amputation of the distal portion of 
 
            her index finger is understandable.  Her feeling, from her 
 
            own personal point of view, that employer's request was 
 
            insensitive is also understandable because this is a 
 
            traumatic amputation of a very conspicuous and useful 
 
            portion of claimant's body.  It would appear that much of 
 
            the misunderstanding might arise out of a lack of 
 
            communication about the type of work that claimant would be 
 
            performing, to wit, answering telephones.  It must be stated 
 
            also that the result of numerous industry studies urges 
 
            employers to return employees to work under as favorable of 
 
            circumstances as possible as soon as possible.  Thus, 
 
            employer was following the injunction of several studies 
 
            related to workers' compensation benefits.
 
            
 
                 In any event, defendant has been given the opportunity 
 
            by statute to offer claimant suitable work consistent with 
 
            the employee's disability, which employer did in this case.  
 
            Along with that, the statute gives employer freedom from 
 
            liability for any temporary disability benefits if the 
 
            employee refuses to accept suitable work consistent with the 
 
            employee's disability.
 
            
 
                 Wherefore, it is determined that, even though the 
 
            injury was the cause of temporary disability because 
 
            claimant (1) was not able to return to her regular job, nor 
 
            (2) was she able to perform substantially similar 
 
            employment, nor (3) had she attained maximum medical 
 
            improvement (Iowa Code section 85.33(1)), nevertheless, 
 
            defendant has proven that it offered claimant suitable work 
 
            consistent with claimant's disability due to her severed 
 
            right index distal phalanx and that claimant refused to 
 
            perform this work.  Claimant admits that she refused to 
 
            perform this work because she thought it was insensitive and 
 
            unreasonable.  It was, nevertheless, suitable work 
 
            consistent with her disability and because of this the 
 
            statute mandates that the employee cannot be compensated 
 
            with temporary disability benefits of any kind.  Iowa Code 
 
            section 85.33(3).
 
            
 
                 Therefore, it is determined that, even though claimant 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            was temporarily disabled, it is further determined that she 
 
            is not entitled to temporary disability benefits because she 
 
            refused to accept suitable work consistent with her 
 
            disability.
 
            
 
                 Claimant contends that, since B. V. Stromberg, M.D., an 
 
            associate of Dr. Bleicher, released claimant to return to  
 
            limited duty work on July 6, 1989, this indicates that she 
 
            was not able to return to work on June 30, 1989.  This 
 
            argument is without merit because Dr. Bleicher clearly 
 
            indicated that claimant could return to work on June 30, 
 
            1989, in writing on a form which claimant acknowledged with 
 
            her own signature (defendant's exhibit F).  Moreover, it is 
 
            the position of the industrial commissioner that employees 
 
            should return to work as soon as reasonably possible and 
 
            that employers should make suitable work consistent with the 
 
            disability of claimants available to them at the earliest 
 
            possible time.
 
            
 
                 Claimant was terminated for excessive absenteeism by 
 
            employer for missing the seven days of work between June 30, 
 
            1989, and July 6, 1989.  Claimant contends that this was a 
 
            wrongful termination.  The industrial commissioner has no 
 
            jurisdiction over wrongful terminations.  Therefore, this 
 
            alleged wrongful termination cannot be the subject of the 
 
            decision in this case.
 
            
 
             causal connection -- entitlement -- permanent disability
 
            
 
                 The parties stipulated that the injury was the cause of 
 
            permanent disability.
 
            
 
                 Claimant requested and employer authorized an 
 
            independent medical examination for claimant by Richard P. 
 
            Murphy, M.D.  Dr. Murphy determined on September 15, 1989, 
 
            "Based on the level of amputation it is my impression that 
 
            the patient has sustained 40% impairment to the right index 
 
            finger."  (Defendant's exhibit D).
 
            
 
                 He did not anticipate that claimant would develop any 
 
            increased pain or discomfort at the amputation site and 
 
            claimant did not complain of any at the time of hearing.  
 
            Likewise, no other evidence was introduced to establish that 
 
            the amount of permanent disability exceeded the amount of 
 
            permanent impairment.
 
            
 
                 The original notice and petition asserts that claimant 
 
            has sustained a psychological injury.  There is further 
 
            evidence that claimant treated with a psychiatrist, James 
 
            Severa, M.D., on October 2, 1989, and October 23, 1989 
 
            (defendant's exhibit E).  There is further evidence that 
 
            defendant employer agreed to treatment by a psychiatrist.  
 
            Dr. Stromberg's note of July 6, 1989, states that "Cindy of 
 
            IBP . . . phoned today.  She said that if Ms. Early would 
 
            request a psychiatrist that that would be acceptable to 
 
            IBP."  (Claimant's exhibit 6, page 1).  There was no 
 
            evidence from Dr. Severa that claimant sustained a permanent 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            psychological injury, even though it is entirely 
 
            understandable that claimant has sustained an extremely 
 
            traumatic temporary psychological effect from her physical 
 
            injury.
 
            
 
                 Even if claimant had proven an independent 
 
            psychological injury which was the sequelae of the 
 
            amputation injury, claimant would not be entitled to recover 
 
            industrial disability benefits for an injury to the body as 
 
            a whole, because it has been determined by the industrial 
 
            commissioner that psychological impairments caused by a 
 
            scheduled member injury are contemplated in the schedule 
 
            itself and do not constitute an extension of the injury to 
 
            the body as a whole.  Cannon v. Keokuk Steel Casting, File 
 
            No. 795331 (App. Decn., January 27, 1988); Mortimer v. 
 
            Fruehauf Corp., File No. 506116 (Arb. Decn., February 22, 
 
            1990)(aff'd by indus. comm'r, September 12, 1992, on appeal 
 
            to dist. court).
 
            
 
                 Cannon was a hearing loss case, but the commissioner 
 
            cited a decision made by himself three months earlier where 
 
            a claim was made for psychological injuries where he held 
 
            that benefits for a scheduled member injury under Iowa Code 
 
            section 85.34 contemplates compensation for any effect on 
 
            claimant's earning capacity caused by psychological problems 
 
            stemming from a scheduled member injury.  Pilcher v. Penick 
 
            & Ford, File No. 618597 (App. Decn., October 21, 1987).
 
            
 
                 Mortimer was a psychological injury case.  The 
 
            commissioner's comments in Pilcher were dicta because 
 
            claimant failed to prove a change of condition in order to 
 
            be entitled to any benefits.  Cannon and Mortimer did decide 
 
            the issue, however, and they are res judicata.  The 
 
            commissioner's decision in Cannon and the deputy 
 
            commissioner's decision in Mortimer follow an old and 
 
            established line of precedent that the amount payable for 
 
            specific injuries (scheduled member injuries) includes both 
 
            payment for the impairment and payment for the reduced 
 
            capacity to labor.  Schell v. Central Eng'g Co., 232 Iowa 
 
            421, 424, 4 N.W.2d 399, 401 (1942); McBride v. Monfort, 
 
            Inc., File No. 947544 (Arb. Decn., March 31, 1992).
 
            
 
                 The Supreme Court of Iowa has recognized the unfairness 
 
            in these situations; however, it has refused to judicially 
 
            legislate but has recognized that any change should come 
 
            from the legislature itself.  Brugioni v. Saylor Coal Co., 
 
            198 Iowa 135, 138, 197 N.W. 470, 471 (1924); Graves v. Eagle 
 
            Iron Works, 331 N.W.2d 116 (Iowa 1983); Soukup v. Shores 
 
            Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Wherefore, it is determined that the injury was the 
 
            cause of permanent disability to the right index finger and 
 
            that claimant has sustained a 40 percent permanent 
 
            impairment to that member which entitles claimant to 14 
 
            weeks of permanent partial disability benefits.  Forty 
 
            percent of the total allowance of 35 weeks for an index 
 
            finger equals 14 weeks.  Iowa Code section 85.34(2)(b).
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                       rate
 
            
 
                 Claimant contends that her rate of compensation should 
 
            be $189.00 per week; however, she submitted no evidence to 
 
            establish this rate.  She acknowledged at the hearing that 
 
            she was unable to prove it.
 
            
 
                 Wherefore, it is determined that claimant has not 
 
            established through her own evidence what the proper rate of 
 
            compensation should be.
 
            
 
                                      credit
 
            
 
                 It is determined that defendant has paid claimant 14 
 
            weeks of permanent partial disability benefits prior to 
 
            hearing at the rate of $169.22 per week in the total amount 
 
            of $2,369.08.  The parties have stipulated to this fact in 
 
            the prehearing report.
 
            
 
                 Wherefore, it is determined that defendant is entitled 
 
            to a credit for these payments, at this rate of 
 
            compensation.  Claimant did not establish a higher rate.  In 
 
            fact, claimant established no particular rate.  Therefore, 
 
            defendant's payment at the rate of $169.22 per week is the 
 
            only and best evidence we have of the proper rate of 
 
            compensation and defendant is entitled to a credit for the 
 
            14 weeks of benefits it paid claimant for permanent partial 
 
            disability benefits at this rate.
 
            
 
                                 medical benefits
 
            
 
                 No determination can be made concerning medical 
 
            benefits because claimant introduced no medical bills into 
 
            evidence.  Defendant has introduced an itemized list of 
 
            medical expenses in the amount of $4,062.88 which it paid 
 
            prior to hearing (defendant's exhibit B).  Claimant failed 
 
            to prove that she is entitled to any other additional 
 
            medical expenses, because no additional medical bills were 
 
            introduced into evidence.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principals of law, these conclusions of law are made.
 
            
 
                 That the injury of June 29, 1989, was the cause of 
 
            temporary disability, but that claimant is not entitled to 
 
            temporary disability benefits for the reason that defendant 
 
            sustained the burden of proof by a preponderance of the 
 
            evidence that it provided suitable work to claimant 
 
            consistent with her disability and that claimant refused to 
 
            accept this work.  Iowa Code section 85.33(3).
 
            
 
                 That claimant is not entitled to temporary disability 
 
            benefits.  Iowa Code sections 85.33(3) and 85.34(1).
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that she sustained a 
 
            psychological injury and, if she would have done so, it 
 
            would not have been compensable for the reason that an award 
 
            for a scheduled member injury includes both impairment and 
 
            any loss of earnings.
 
            
 
                 That claimant did sustain the burden of proof by a 
 
            preponderance of the evidence 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, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).
 
            
 
                 That claimant is entitled to 14 weeks of permanent 
 
            partial disability benefits based upon a 40 percent 
 
            permanent impairment of the right index finger.  Iowa Code 
 
            section 85.34(2)(b).
 
            
 
                 That claimant did not submit any evidence in support of 
 
            what the proper rate of compensation should be and, 
 
            therefore, it cannot be determined from claimant's evidence 
 
            what the proper rate of compensation should be.
 
            
 
                 That defendant has paid claimant 14 weeks of permanent 
 
            partial disability benefits at the rate of $169.22 per week 
 
            in the total amount of $2,369.08 and that defendant is 
 
            entitled to credit in this amount for the 14 weeks of 
 
            permanent partial disability benefits to which claimant is 
 
            entitled for this injury.
 
            
 
                 That claimant has not sustained the burden of proof by 
 
            a preponderance of the evidence that she is entitled to the 
 
            payment of any additional medical benefits.  Iowa Code 
 
            section 85.27.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That no further amounts are due to claimant from 
 
            defendant for the reason that defendant is entitled to a 
 
            credit for the fourteen (14) weeks of permanent partial 
 
            disability benefits which have been awarded in this 
 
            decision.
 
            
 
                 That each party is to pay their own respective costs of 
 
            this action, except that defendant is ordered to pay the 
 
            cost of the attendance of the court reporter at hearing 
 
            pursuant to Iowa Code section 86.40 and rule 343 IAC 4.33.
 
            
 
                 That defendant submit any claim activity reports that 
 
            might be requested by this agency pursuant to rule 343 IAC 
 
            3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Ms. Denise Early
 
            1721 Lake Street
 
            Omaha, Nebraska  68110
 
            CERTIFIED MAIL
 
            
 
            Ms. Marie L. Welsh
 
            Attorney at Law
 
            P.O. Box 515, Dept. #41
 
            Dakota City, Nebraska  68731
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          5-1703; 1801.1; 1802; 1803
 
                                          5-1803; 5-2501; 5-2700
 
                                          5-2906; 3001; 3002; 3003
 
                                          Filed May 22, 1992
 
                                          WALTER R. McMANUS, JR.
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DENISE EARLY,                 :
 
                                          :
 
                 Claimant,                :         File No. 921112
 
                                          :
 
            vs.                           :      A R B I T R A T I O N
 
                                          :
 
            IBP, INC.,                    :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            1801.1; 1802
 
            Claimant severed the distal phalanx of her right index 
 
            finger traumatically in a machine at work.  It was 
 
            determined that the injury was the cause of temporary 
 
            disability because (1) claimant was not released to return 
 
            to regular work, (2) she was not released to return to 
 
            similar employment, and (3) she had not reached maximum 
 
            medical improvement.  Nevertheless, she was not entitled to 
 
            temporary disability benefits for the reason that defendant 
 
            offered claimant suitable work consistent with her 
 
            disability the following day answering telephones and 
 
            claimant refused to accept it.  Iowa Code section 85.33(3).
 
            Defendant then terminated claimant for excessive 
 
            absenteeism.  The deputy had no authority to decide wrongful 
 
            termination cases.
 
            
 
            5-1803
 
            Claimant awarded 14 weeks permanent partial disability 
 
            benefits for a 40 percent loss of her right index finger 
 
            pursuant to the only impairment rating.
 
            
 
            3001; 3002; 3003
 
            No specific monetary award could be made because pro se 
 
            claimant offered no evidence of rate.
 
            
 
            5-2906
 
            Most of claimant's proposed 13 exhibits were excluded 
 
            because they had never been timely served on defendant.  
 
            Seven pages of exhibits that defendant acknowledged had been 
 
            served prior to hearing before claimant discharged her 
 
            attorney were admitted because there was no prejudice to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            defendant.
 
            
 
            5-1703
 
            Defendant was allowed a credit for 14 weeks of permanent 
 
            partial disability benefits paid to claimant prior to 
 
            hearing.
 
            
 
            5-2501; 5-2700
 
            No medical expenses were allowed as claimant introduced no 
 
            medical bills into evidence.
 
            
 
            1803
 
            No award could be made for psychological injury because the 
 
            schedule contemplates both impairment and loss of earnings.  
 
            Cites.