BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            KIM JOLOMNA,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 923450
 
            JOHN MORRELL & COMPANY,    
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            NATIONAL UNION FIRE INS. CO.,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
 
 
                                 ISSUES
 
 
 
            Claimant states the following issue on appeal:  The nature 
 
            and extent of any permanent partial disability benefits and 
 
            specifically whether claimant sustained a permanent injury 
 
            to the shoulder and, therefore, injury to the body as a 
 
            whole and is entitled to industrial disability.
 
 
 
                            FINDINGS OF FACT
 
 
 
            The findings of fact contained in the proposed agency 
 
            decision filed June 25, 1992 are adopted as final agency 
 
            action.
 
            conclusions of law
 
            The conclusions of law contained in the proposed agency 
 
            decision filed June 25, 1992 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.  Segments designated by brackets ([ 
 
            ]) indicate language that is in addition to the language of 
 
            the proposed agency decision.
 
            
 
                 The parties have stipulated that claimant has a 
 
            permanent disability as a result of her work injury on May 
 
            2, 1989.  The real issue is the nature and extent of 
 
            claimant's permanent disability.  Claimant alleges that she 
 
            has sustained a permanent injury to the body as a whole.  
 
            Defendants maintain the injury is a scheduled member injury 
 
            pursuant to Iowa Code section 85.34(2)(n).
 
            
 
                 The right of an employee to receive compensation for 
 

 
            
 
            Page   2
 
            
 
            
 
            injuries sustained is statutory.  The statute conferring 
 
            this right can also fix the amount of compensation payable 
 
            for different specific injuries.  The employee is not 
 
            entitled to compensation except as the statute provides.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Iowa Code section 
 
            85.34(2).  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.  Simbro v. Delong's Sportswear, 332 N.W.2d 886 
 
            (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 
 
            (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 
 
            N.W.2d 95 (1960).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects or compensatory change, result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn be the basis for a rating of industrial disability.  It 
 
            is the anatomical situs of the permanent injury or 
 
            impairment which determines whether the schedules in section 
 
            85.34(2)(a)-(t) are applied.  Lauhoff Grain v. McIntosh, 395 
 
            N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, Inc., 
 
            290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber Co., 233 
 
            Iowa 758, 10 N.W.2d 569 (1943).  Soukup, 222 Iowa 272, 268 
 
            N.W. 598 (1936).
 
            
 
                 When disability is found in the shoulder, a body as a 
 
            whole situation may exist.  Alm v. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949).  In Nazarenus v. Oscar 
 
            Mayer & Co., II Iowa Industrial Commissioner Report 281 
 
            (App. 1982), a torn rotator cuff was found to cause 
 
            disability to the body as a whole.
 
            
 
                 In the case before this deputy, claimant has sustained 
 
            a scheduled member disability.  The relevant statutory 
 
            provision is section 85.34(2)(m).  The statute reads:
 
            
 
                 The loss of two-thirds of that part of an arm 
 
                 between the shoulder joint and the elbow joint 
 
                 shall equal the
 
            
 
            
 
            Page   3
 
            
 
            
 
            loss of an arm and the compensation therefor shall 
 
            be weekly compensation during two hundred fifty 
 
            weeks.
 
            
 
                 Claimant has two medical opinions where the physicians 
 
            have rated a functional impairment to the right arm.  Both 
 
            John Dougherty, M.D., and Dr. Wheeler opine there is a 10 
 
            percent functional impairment to the right upper extremity 
 
            which translates to an impairment to the right arm.  There 
 
            is not an impairment to the body as a whole, despite 
 
            claimant's argument that her right shoulder is permanently 
 
            impaired.
 
            
 
                 Claimant has no objective evidence to support a 
 
            permanent injury to the right shoulder.  While it is true 
 
            that claimant had arthroscopic surgery and that the 
 
            incisions touched beyond the right arm, the results of the 
 
            exam show entirely normal findings.  Dr. Wheeler found no 
 
            abnormalities of the shoulder.  Claimant had only a very 
 
            slight decrease in the shoulder limitation (Ex. l, p. 1).  
 
            She had reasonably good range of motion of the right 
 
            shoulder (Ex. l, p. 1).  [The claimant has the burden of 
 
            proving by a preponderance of the evidence that she received 
 
            an injury to her shoulder that arose out of and in the 
 
            course of her employment.  McDowell v. Town of Clarksville, 
 
            241 N.W.2d 904 (Iowa 1976).  The claimant has failed to meet 
 
            her burden of proof.]  *****  Claimant therefore has a 10 
 
            percent permanent partial disability to the right arm.  She 
 
            is entitled to 25 weeks [10 percent of 250 weeks] of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of $210.60 per week and commencing from April 16, 1991.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants are to pay unto claimant twenty-five 
 
            (25) weeks of permanent partial disability benefits at the 
 
            stipulated rate of two hundred ten and 60/l00 dollars 
 
            ($210.60) per week commencing on April 16, 1991.
 
            
 
                 That accrued benefits are to be paid in a lump sum 
 
            together with statutory interest at the rate of ten percent 
 
            (10%) per year pursuant to section 85.30, Iowa Code, as 
 
            amended.
 
            
 
                 That defendants shall receive credit for all benefits 
 
            paid.
 
            That claimant shall pay the costs of the appeal including 
 
            the transcription of the hearing.  Defendants shall pay all 
 
            other costs.
 
            
 
                 That defendants shall file a claim activity report as 
 
            requested by this division and pursuant to rule 343 IAC 3.l.
 
            Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                            BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Edward J. Keane
 
            Attorney at Law
 
            400 Firstar Bank Building
 
            P.O. Box 1768
 
            Sioux City, Iowa  51102
 
            
 
            Ms. Rita C. Grimm
 
            Attorney at Law
 
            701 Pierce Street, STE 200
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                             1803.1
 
                                             Filed November 5, 1992
 
                                             Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            KIM JOLOMNA,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 923450
 
            JOHN MORRELL & COMPANY,    
 
                                                   A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            NATIONAL UNION FIRE INS. CO.,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            1803.1
 
            It was determined that claimant had a 10 percent scheduled 
 
            member injury to the right arm rather than a permanent 
 
            disability to the shoulder and so as to be an injury to the 
 
            body as a whole.  In the instant case, two medical opinions 
 
            rated claimant as having a functional impairment to the 
 
            right upper extremity.  Arthroscopic surgery revealed no 
 
            shoulder abnormalities.  Claimant had only a very slight 
 
            decrease in the shoulder limitation.  She had reasonably 
 
            good range of motion of the right shoulder.  There was no 
 
            medical opinion which supported an injury beyond the right 
 
            arm.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            KIM JOLOMNA,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 923450
 
            JOHN MORRELL & COMPANY,       :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INS. CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Kim Jolomna, against her employer, John Morrell 
 
            & Company, and its insurance carrier, National Union Fire 
 
            Insurance Company, defendants.  The case was heard on June 
 
            9, 1992 at the Woodbury County courthouse.  The record 
 
            consists of the testimony of claimant.  The record also 
 
            consists of the testimony of Donna Johnson, R.N., plant 
 
            nurse. The record also consists of joint exhibits 1-44 and 
 
            46-54.
 
            
 
                                      ISSUE
 
            
 
                 The issue is the nature and extent of any permanent 
 
            partial disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Claimant is 32 years old.  She is married and has one 
 
            child.  Claimant completed the ninth grade.  She testified 
 
            she was required to take specialized classes in reading and 
 
            math.  Claimant described her reading skills as very poor.  
 
            She stated she could not assist her twelve-year-old daughter 
 
            with her homework.
 
            
 
                 Claimant testified she began "walking beans" when she 
 
            was 9 or 10 years old.  Since that time claimant had held a 
 
            variety of jobs including waitressing and working as a 
 
            nurse's aide.
 
            
 
                 In 1986 claimant commenced her employment with 
 
            defendant-employer.  She was hired on the "Chitlin line" for 
 
            $7.25/hour.  This had been the highest paying job which 
 
            claimant had ever held.  After her initial date of hire, 
 
            claimant was placed in various positions.  She also worked 
 
            as a floater.  Eventually claimant was assigned the task of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            "spotting livers."  The position involved the use of both 
 
            hands whereby claimant performed eight separate movements on 
 
            each liver.  She often processed 6500 livers per day.
 
            
 
                 Claimant testified she began experiencing pain in her 
 
            right hand and elbow.  She is right handed.  However, the 
 
            job tasks required the use of both hands.  Claimant 
 
            testified she experienced difficulties above the elbow, into 
 
            the shoulder, and pain in the neck area.  According to her 
 
            the pain gradually increased.
 
            
 
                 Claimant continued experiencing pain in the right 
 
            shoulder and neck area.  On December 1, 1989, Dr. Mark 
 
            Wheeler, M.D., performed a right shoulder arthroscopy.  The 
 
            examination was normal.
 
            
 
                 Medical records for claimant demonstrate that she was 
 
            treated for "[t]ardive ulnar palsy, right."  (Exhibit 33, 
 
            page 16)  M. E. Wheeler, M.D., treated claimant 
 
            conservatively and then he performed a "[s]ubcutaneous right 
 
            ulnar nerve transposition."  (Ex. 33, p. 16)  The surgery 
 
            was performed on October 16, 1990.  Subsequent to the 
 
            surgery, claimant engaged in physical therapy.  She was 
 
            released to return to work with no repetitive grasping, 
 
            pulling or lifting greater than five pounds or no use of a 
 
            knife.  Later the restrictions were modified to no knife 
 
            work, but full duties otherwise.
 
            
 
                 Claimant contacted Dr. Wheeler on April 4, 1991 and 
 
            again on April 15, 1991, relative to her return to work.  
 
            His office notes for those days reveal:
 
            
 
                 4-4-91 OV - Patient complains of elbow, shoulder 
 
                 and hand pain.  She became tearful and states she 
 
                 just cannot do the work at John Morrell.  
 
                 Neurological exam is normal.  She is tender near 
 
                 the elbow but has full ROM.  She has reasonably 
 
                 good ROM of the shoulder.  Slight limitation of 
 
                 both elbow and shoulder.  Because of this, we 
 
                 would give her a 10% permanent partial impairment 
 
                 rating of the upper extremity.
 
            
 
                 I had a long discussion with the patient regarding 
 
                 her return to work at John Morrell.  We will give 
 
                 her two week's [sic] off work to sort this out.  I 
 
                 do not recommend return to repetitive work.  She 
 
                 is contacting her lawyer.  Have recommended 
 
                 vocational rehabilitation.  MEW:cvv  (will call)  
 
                 (not working) RIGHT ELBOW, SHOULDER AND HAND 
 
                 (Given Company work release)
 
            
 
                 4-15-91 - Patient contacted us today on 4-15-91; 
 
                 she states she does not desire to work.  She does 
 
                 have a 10o permanent partial impairment rating of 
 
                 the upper extremity.  This will be a permanent 
 
                 condition.  I feel she has reached maximum medical 
 
                 improvement.
 
            
 
            (Ex. 1, p. 1)
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant did not return to work with defendant-employer 
 
            after April 15, 1991.  As of the date of the hearing, 
 
            claimant had not been employed.  She had not sought other 
 
            employment.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The parties have stipulated that claimant has a 
 
            permanent disability as a result of her work injury on May 
 
            2, 1989.  The real issue is the nature and extent of 
 
            claimant's permanent disability.  Claimant alleges that she 
 
            has sustained a permanent injury to the body as a whole.  
 
            Defendants maintain the injury is a scheduled member injury 
 
            pursuant to section 85.34(2)(n).
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects or compensatory change, result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn be the basis for a rating of industrial disability.  It 
 
            is the anatomical situs of the permanent injury or 
 
            impairment which determines whether the schedules in section 
 
            85.34(2)(a) - (t) are applied.  Lauhoff Grain v. McIntosh, 
 
            395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber 
 
            Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup, 222 Iowa 
 
            272, 268 N.W. 598 (1936).
 
            
 
                 When disability is found in the shoulder, a body as a 
 
            whole situation may exist.  Alm v. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949).  In Nazarenus v. Oscar 
 
            Mayer & Co., II Iowa Industrial Commissioner Report 281 
 
            (App. 1982), a torn rotator cuff was found to cause 
 
            disability to the body as a whole.
 
            
 
                 In the case before this deputy, claimant has sustained 
 
            a scheduled member disability.  The relevant statutory 
 
            provision is section 85.34(2)(m).  The statute reads:
 
            
 
                 The loss of two-thirds of that part of an arm 
 
                 between the shoulder joint and the elbow joint 
 
                 shall equal the loss of an arm and the 
 
                 compensation therefor shall be weekly compensation 
 
                 during two hundred fifty weeks.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant has two medical opinions where the physicians 
 
            have rated a functional impairment to the right arm.  Both 
 
            John Dougherty, M.D., and Dr. Wheeler opine there is a 10 
 
            percent functional impairment to the right upper extremity 
 
            which translates to an impairment to the right arm.  There 
 
            is not an impairment to the body as a whole, despite 
 
            claimant's argument that her right shoulder is permanently 
 
            impaired.
 
            
 
                 Claimant has no objective evidence to support a 
 
            permanent injury to the right shoulder.  While it is true 
 
            that claimant had arthroscopic surgery and that the 
 
            incisions touched beyond the right arm, the results of the 
 
            exam show entirely normal findings.  Dr. Wheeler found no 
 
            abnormalities of the shoulder.  Claimant had only a very 
 
            slight decrease in the shoulder limitation (Ex. l, p. 1).  
 
            She had reasonably good range of motion of the right 
 
            shoulder (Ex. l, p. 1).  No medical evidence supports an 
 
            injury beyond the right arm.  Claimant therefore has a 10 
 
            percent permanent partial disability to the right arm.  She 
 
            is entitled to 22 weeks of permanent partial disability 
 
            benefits at the stipulated rate of $210.60 per week and 
 
            commencing from April 16, 1991.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay unto claimant twenty-two (22) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of two hundred ten and 60/l00 dollars 
 
            ($210.60) per week commencing on April 16, 1991.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Defendant shall receive credit for all benefits paid.
 
            
 
                 Defendant shall file a claim activity report as 
 
            requested by this division and pursuant to rule 343 IAC 3.l.
 
            
 
                 Costs are assessed to defendant pursuant to rule 343 
 
            IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Mr. Edward J. Keane
 
            Attorney at Law
 
            400 1st National Bank Building
 
            P O Box 1768
 
            Sioux City, Iowa  51102
 
            
 
            Ms. Rita C. Grimm
 
            Attorney at Law
 
            701 Pierce Street  STE 200
 
            P O Box 3086
 
            Sioux City, Iowa 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803.1
 
                                               Filed June 25, 1992
 
                                               MICHELLE A. McGOVERN
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            KIM JOLOMNA,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 923450
 
            JOHN MORRELL & COMPANY,       :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INS. CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            1803.1
 
            
 
            It was determined that claimant had a 10 percent scheduled 
 
            member injury to the right arm rather than a permanent 
 
            disability to the shoulder and so as to be an injury to the 
 
            body as a whole.  In the instant case, two medical opinions 
 
            rated claimant as having a functional impairment to the 
 
            right upper extremity.  Arthroscopic surgery revealed no 
 
            shoulder abnormalities.  Claimant had only a very slight 
 
            decrease in the shoulder limitation.  She had reasonably 
 
            good range of motion of the right shoulder.  There was no 
 
            medical opinion which supported an injury beyond the right 
 
            arm.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            DAVID L. BRYANT,              :
 
                                          :
 
                 Claimant,                :
 
                                          :       File No. 887556
 
            vs.                           :                923563
 
                                          :
 
            ARMOUR FOOD CO./CON AGRA,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 These are proceedings in arbitration upon the petitions 
 
            of claimant, David L. Bryant, against his employer, Armour 
 
            Food Co./Con Agra, self-insured employer, the defendant in 
 
            both case files.  There is also the Second Injury Fund of 
 
            Iowa, defendant, in case file 923563.  The cases were heard 
 
            on August 18, 1992, in Mason City Iowa at the Cerro Gordo 
 
            County Courthouse.  The record consists of the testimony of 
 
            claimant.  The record also consists of claimant's exhibits 
 
            1-33.
 
            
 
                                      ISSUES
 
            
 
                 The issues to be determined are:
 
            
 
                 With respect to file number 887556 (date of injury 
 
            April 6, 1988):
 
            
 
                 1.  Whether there is a causal relationship between the 
 
            work injury and any permanent disability; and,
 
            
 
                 2.  Whether claimant is entitled to any permanent 
 
            partial disability benefits.
 
            
 
                 With respect to file number 923563 (date of injury May 
 
            17, 1989):
 
            
 
                 1.  Whether claimant is entitled to any permanent 
 
            partial disability benefits;
 
            
 
                 2.  Whether claimant is entitled to any benefits from 
 
            the Second Injury Fund of Iowa;
 
            
 
                 3.  Whether defendants are liable for any costs of an 
 
            independent medical exam; and,
 
            
 
                 4.  Whether claimant is entitled to penalty benefits 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            pursuant to section 86.13(4).
 
            
 
                                 FINDINGS OF FACTS
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 33 years old.  He dropped out of  the 
 
            eleventh grade.  However, he obtained his GED in the early 
 
            part of 1991.  In the fall of 1991, claimant, with a grant 
 
            obtained through the Iowa Department of Vocational 
 
            Rehabilitation, obtained a PELL Grant.  Consequently, 
 
            claimant enrolled in college at North Iowa Community 
 
            College.  Claimant testified he had thirteen college credits 
 
            at the time of the hearing but that he was scheduled to 
 
            begin the fall semester on August 30, 1992.  Claimant was 
 
            having a difficult time with algebra.
 
            
 
                 Claimant commenced his employment with defendant 
 
            employer in December of 1983.  During the course of his 
 
            employment, claimant held several positions within the 
 
            plant.  He performed palletizing, slicing, "packing off," 
 
            and feeding bacon into a 301 machine.
 
            
 
                 On April 6, 1988, claimant sustained a work-related 
 
            injury to his neck.  Because of his neck injury, claimant 
 
            missed work from April 28, 1988 through May 1, 1988.  He was 
 
            paid weekly benefits for that period.  X-rays were taken of 
 
            the cervical spine which showed:  "Four views of the 
 
            cervical spine show normal vertebrae and disc spaces.  The 
 
            neural foramina are normal.  The pedicles and spinous 
 
            processes are intact." (Claimant's Exhibit 4-8)
 
            
 
                 Robert E. McCoy, M.D., found no objective evidence of 
 
            abnormality on the cervical spine.  Dr. McCoy diagnosed 
 
            claimant as having suffered a postural neck strain.  Travis 
 
            F. DeBartolo, M.D., had found no functional impairment to 
 
            the neck.  He had restricted claimant from engaging in 
 
            repetitive arthritis.  After receiving conservative 
 
            treatment, claimant returned to work, but he could not 
 
            recall the specific job he was assigned.  (Cl. Ex. 31, p. 
 
            35)
 
            
 
                 Claimant sustained another work injury.  He began 
 
            experiencing increasing difficulties with both wrists, arms 
 
            and shoulders.  Claimant could recall no specific incident.  
 
            Claimant was off work in May and June of that year.  He 
 
            returned to work in July.  Then, he left again and returned 
 
            to work for only one day in August of 1989. (Cl. Ex. 31, p. 
 
            38)
 
            
 
                 Claimant sought medical treatment on May 10, 1989.  He 
 
            consulted with Kenneth B. Washburn, M.D.  The medical notes 
 
            for that date read:
 
            
 
                    He has received physical therapy.  He is only 
 
                 slightly improved as far as pain in the right 
 
                 shoulder is concerned but he is having more pain 
 
                 in the left shoulder.  Thinks that he is favoring 
 
                 the right shoulder and putting stress on the left 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 shoulder.  Range of motion has improved in the 
 
                 right shoulder and he is able to make about 170 
 
                 degrees of forward flexion and about 120 degrees 
 
                 of abduction.  He actually has about the same 
 
                 range of motion on the left.  He is tender over 
 
                 the biceps tendon anterior joint line on the left.  
 
                 I feel no crepitation on movement of the shoulder.  
 
                 Still complaining of some numbness and tingling of 
 
                 the right hand.  I went ahead and did nerve 
 
                 conductions today.
 
            
 
                    In the right median nerve, distal latency was 
 
                 3.2 milliseconds.  Velocity from the elbow to the 
 
                 wrist was 57 meters per second.  Sensory delay to 
 
                 the index finger for the right median nerve over a 
 
                 distance of 14 centimeters was 2.8 milliseconds 
 
                 with a 25 microvolt action potential.  The ulnar 
 
                 sensory to the small finger over 14 centimeters 
 
                 was 2.8 milliseconds with a 25 microvolt action 
 
                 potential.  Therefore, on the basis of the above, 
 
                 there is no evidence of median nerve involvement 
 
                 on the right, no evidence of carpal tunnel 
 
                 syndrome.
 
            
 
                    DISPOSITION:  I am going to stop the physical 
 
                 therapy, for the present, obtain x-rays on both 
 
                 shoulders.  He has not been taking his 
 
                 antiinflammatory medication and I want him to 
 
                 begin to take this.  I have given him limited 
 
                 duty, fairly sedentary work, try to rest his 
 
                 shoulders.  I have told him that I do not want him 
 
                 to do any work or activities outside of work, at 
 
                 home or on the athletic field.  Therefore, he is 
 
                 to lead a fairly sedentary life and I will recheck 
 
                 him in one wk.  Copy to Lee at Armour.
 
            
 
            (Cl. Ex. 9, p. 1)
 
            
 
                 The radiographic report was negative for a fracture, 
 
            dislocation, subluxation or arthritis (Cl. Ex. 9, p. 2).  
 
            Physical therapy and work hardening were prescribed.  
 
            Several restrictions were imposed upon claimant's activity.  
 
            He was given light duty status.  As of February 9, 1990, Dr. 
 
            Washburn opined that claimant might have to consider another 
 
            line of work. (Cl. Ex. 13, p. 3)  Dr. Washburn prescribed 
 
            wrist splints.  The physician also referred claimant for a 
 
            functional capacity
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            evaluation.  The evaluation was completed on February 15, 
 
            1990, by M. Davenport, LPT.  Ms. Davenport wrote in her 
 
            report:
 
            
 
                    He presents today with bilateral wrist, 
 
                 shoulder and posterior neck pain, forward head 
 
                 posture, and decreased functional capacities for 
 
                 lifting, pushing and pulling.  Functional 
 
                 activities were limited mostly by increased wrist 
 
                 pain right greater than left.  Patient appears to 
 
                 have tendinitis of the extensor pollicis brevis 
 
                 and abductor pollicis longus, right greater than 
 
                 left, aggravated by forceful or repetitive hand 
 
                 movements.  At this time I feel the patient would 
 
                 tolerate the lifting requirements of the molding 
 
                 job, but it is questionable as to whether he would 
 
                 tolerate the repetitive grasping.
 
            
 
                    Recommendations, at this time, include referral 
 
                 to Occupational Therapy for DeQuervain's splints 
 
                 and wrist and hand exercises, to prepare patient 
 
                 for return to work.  If the patient were to return 
 
                 to work now, recommendations would be as per the 
 
                 enclosed functional capacities estimations for Dr. 
 
                 Garrett's review.
 
            
 
            (Cl. Ex. 14, p. 4, paragraphs 2 and 3)
 
            
 
                 Filip J. Garrett, M.D., concurred with the evaluation.  
 
            He opined that claimant was suffering from "tendonitis." 
 
            (Cl. Ex. 15)  Later, Dr. Garrett's colleague, Samuel R. 
 
            Hunt, M.D., opined that claimant was examined for 
 
            "persistent wrist and hand discomfort.  Today on examination 
 
            he seems to have tenderness over the thumb extensors on both 
 
            sides of the wrist." (Cl. Ex. 16)
 
            
 
                 Claimant was treated with splints and 
 
            anti-inflammatories.
 
            
 
                 Claimant was then referred to T.F. DeBartolo, M.D., for 
 
            an evaluation on May 22, 1990.  Dr. DeBartolo's notes for 
 
            that date reflected that:
 
            
 
                   On his physical examination, the patient is a 
 
                 fairly thin white male, appears to be 
 
                 approximately 6 feet tall, weighing 170 lbs.  He 
 
                 has full neck range of motion, forward flexion, 
 
                 posterior extension, lateral bending and rotation.  
 
                 He has had difficulty in the past with his 
 
                 shoulders.  His shoulders at this time do not 
 
                 appear to be a factor.  He is able to forward 
 
                 flex, abduct, internally and externally rotate 
 
                 without pain, no localized discomfort as the 
 
                 clavicle, acromioclavicular, acromion, scapular 
 
                 spine is palpated.  No localized swelling or 
 
                 erythema about either shoulder.  There is no 
 
                 crepitants on examination of his shoulder.  The 
 
                 patient has full elbow range of motion, full 
 
                 flexion extension.  He did not have evidence of 
 
                 having either medial or lateral epicondylitis, no 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 pain over the radial head as it is pronated or 
 
                 supinated, no evidence of any elbow effusion.  He 
 
                 does not have muscle tenderness about the elbow.  
 
                 The patient tends to guard both wrists, complains 
 
                 of pain diffusely about the wrist area, both 
 
                 dorsal volar, both radial and ulnar, most intense 
 
                 discomfort appears on the right side to be 
 
                 involving the 1st extensor compartment.  He does 
 
                 have a positive Finkelstein's.  On physical 
 
                 examination, it's perhaps slightly swollen but not 
 
                 an intense inflammatory response.  The patient 
 
                 does not have CMC tenderness, does not have a 
 
                 positive Tinel's as I palpate the median nerve at 
 
                 the wrist on either the right or the left side, 
 
                 also has a negative Phalen's.  As I go ahead and 
 
                 perform a median nerve compression test, however, 
 
                 he does have a vague sense of numbness on both 
 
                 sides in the range of approximately 40 seconds.  I 
 
                 thought perhaps his pulse on the right side was a 
 
                 little bit stronger than on the left side.  I went 
 
                 ahead and had him lay down and took his blood 
 
                 pressure in both arms, and there was no change 
 
                 from right to left side both in range of 
 
                 approximately  118/70.  The patient did not have a 
 
                 change in his pulse as I abducted his arms.  
 
                 Thoracic outlet provocation test did cause some 
 
                 minor achy discomfort but really didn't seem to be 
 
                 recreation of a thoracic outlet component.  The 
 
                 patient's wrist range of motion as indicted was 
 
                 guarded.  He would palmar flex approximately 403, 
 
                 dorsiflex approximately 503, limited radial and 
 
                 ulnar deviation.  Reviewing his radiographs, right 
 
                 and left side, both appear to be normal.  His 
 
                 radial and ulnar were intact and patent.  Two 
 
                 point was intact at 3 mm.  His grip strengths 
 
                 initially, position 3 on the right side, he 
 
                 gripped ____________ (illegible) left side 
 
                 __________ (illegible) ______ (illegible).  As I 
 
                 went ahead and shifted position from the narrowest 
 
                 to the widest, right to left hand, position No. 1, 
 
                 he was 16 on each side; position No. 2, 22 on the 
 
                 right, 25 on the left; position No. 3, 20 on the 
 
                 right, 22 on the left; position No. 4, 16 on the 
 
                 right, 20 on the left, and No. 5, 12 on the right, 
 
                 16 on the left.  Bell-shaped curve is a little bit 
 
                 flat and most certainly less than what he was able 
 
                 to grip initially, so it's difficult to assess his 
 
                 strength, but it appears that it is probably less 
 
                 than average for an individual his age.  He 
 
                 probably does have some tendinitis of his 1st 
 
                 extensor compartment, but with his work history 
 
                 and being able to tolerate certain tasks and not 
 
                 being able to tolerate others and having been at 
 
                 that plant since '83, I talked with him about the 
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 fact that he has some responsibility in making 
 
                 some appropriate choices.  I don't at this time 
 
                 feel that there is something that I can make 
 
                 better with a surgical release, i.e. his 
 
                 deQuervain's.  I think it should be treated 
 
                 conservatively at this time with nonsteroidals, 
 
                 warm water soaks, perhaps supportive ace wrapping, 
 
                 but if he is trying to do a more repetitive hand 
 
                 and wrist job, just simply to be on days, I think 
 
                 that's a mistake.  If there are jobs that he could 
 
                 tolerate and he has shown that he has been able to 
 
                 tolerate in the past such as the palletizing and 
 
                 is not doing it just because of the time of day 
 
                 that he does the job, I don't think that's 
 
                 realistic.  Nonetheless, I have encouraged him on 
 
                 conservative treatment.  He has verbalized that 
 
                 the spiral of being taken off work, going back to 
 
                 work, doing the same thing, and having pain again 
 
                 is not satisfactory.  He started to be looking for 
 
                 other employment.  I most certainly have 
 
                 encouraged him to do that.  In the meantime, I 
 
                 explained to him I thought we needed to get his 
 
                 old medical records from when he was treated for 
 
                 this work-related problem by Dr. Washburn to try 
 
                 to document.  I think he needs to talk with his 
 
                 employer about trying to make a change back to 
 
                 something that he was better able to tolerate.
 
            
 
            (Cl. Ex. 17, pp. 1-3)
 
            
 
                 The radiographic reports for the same date showed no 
 
            abnormalities of either wrist (Cl. Ex. 17, p. 3).  Dr. 
 
            DeBartolo recommended that claimant seek other employment 
 
            because of claimant's medical condition.  Dr. DeBartolo also 
 
            opined that as of mid-October in 1990, claimant had reached 
 
            maximum medical improvement for "mild chronic recurrent 
 
            tenosynovitis." (Cl. Ex. 19)  Dr. DeBartolo restricted 
 
            claimant from engaging in repetitive upper extremity work, 
 
            but the physician rated claimant as having an impairment 
 
            equal to 2 percent of each upper extremity.  This was 
 
            related to both wrists(C. Ex. 21, p. 1).  The 2 percent 
 
            impairment was based on a 103 loss of the extremes of motion 
 
            with regards to dorsiflexion of each side.  (Cl. Ex. 21, p. 
 
            2)
 
            
 
                 Claimant sought an independent medical exam for 
 
            purposes of obtaining an additional functional impairment 
 
            rating.  Robert E. McCoy, M.D., performed an examination on 
 
            April 19, 1991.  With respect to claimant's shoulders, arms, 
 
            and wrists, Dr. McCoy opined:
 
            
 
                 I find no motor weakness in the motors of either 
 
                 upper extremity.  Deep tendon reflexes are BJ 2/0, 
 
                 RJ 2/0, TJ 0/0.  There is some hypesthesia to 
 
                 touch over the right thumb.  On examining his 
 
                 shoulders, he has a full range of motion of both 
 
                 shoulders actively and passively.  I am not able 
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 to feel any crepitus in the left shoulder as he 
 
                 puts his shoulder through a full range of motion 
 
                 nor can I feel crepitus on the right side.  He has 
 
                 tenderness in the posterior aspect of the rotator 
 
                 cuff on the left side, but I don't feel any 
 
                 tenderness on palpation of the rotator cuff on the 
 
                 right.  On forward flexion of his right shoulder 
 
                 to about 953, there is impingement type pain felt 
 
                 there.  There is no impingement type pain of the 
 
                 left shoulder.
 
            
 
                    X-rays of the cervical spine and both shoulders 
 
                 were taken and appear perfectly normal.  I see no 
 
                 disc space narrowing or foraminal narrowing or 
 
                 degenerative changes in the cervical spine and no 
 
                 abnormalities degenerative or otherwise in either 
 
                 shoulder.
 
            
 
                    Mr. Bryant has had a long history of 
 
                 incapacitating pain in his shoulder and a fairly 
 
                 brief history of pain in his neck.  I am not able 
 
                 to find objective evidence of abnormality on 
 
                 examination of either the cervical spine or the 
 
                 shoulders.  I do not think Mr. Bryant has a 
 
                 ratable impairment of function with respect to the 
 
                 cervical spine.  In the absence of objective 
 
                 findings but in consideration of the prolonged 
 
                 history of incapacitation due to shoulder pain, I 
 
                 would rate his permanent partial impairment of 
 
                 function of the right shoulder at 3% of the right 
 
                 upper extremity and of the left shoulder at 1% of 
 
                 the upper extremity.
 
            
 
            (Cl. Ex. 22, pp. 4-5)
 
            
 
                 In a later report, dated May 17, 1991, Dr. McCoy noted:
 
            
 
                    I am in agreement with Dr. Washburn's estimated 
 
                 functional capacity for work tolerance of October 
 
                 6, 1989, except that I don't believe that there 
 
                 should be any restriction on sitting or driving.  
 
                 Although I rated a substantial impairment to Mr. 
 
                 Bryant's left lower extremity, much of that 
 
                 impairment was due to his leg length discrepancy 
 
                 which can be made up for him by a heel lift.  I 
 
                 also in that impairment rating acknowledged the 
 
                 tendency that I anticipate for the development of 
 
                 degenerative arthritis of his ankle and knee.  I 
 
                 think at the present time the restrictions of 
 
                 standing and walking in Dr. Washburn's functional 
 
                 capacity adequately take care of restrictions with 
 
                 respect to Mr. Bryant's lower extremity.
 
            
 
            (Cl. Ex. 23, p. 1, par. 2)
 
            
 
            
 
                 Dr. McCoy lifted any restrictions for claimant on 
 
            sitting or driving.
 
            
 
                 As aforementioned, claimant did not return to 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            employment with defendant employer.  Rather, he availed 
 
            himself of the services provided by the Iowa Department of 
 
            Vocational Rehabilitation, and claimant enrolled at the 
 
            community college.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 With respect to file number 887556, claimant alleges 
 
            there is a causal relationship between his work injury on 
 
            April 6, 1988 and a permanent disability.
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 Claimant has presented no objective evidence that he 
 
            has a permanent neck condition or that any "neck condition" 
 
            is causally related to the work injury of that date.  X-rays 
 
            which were taken of the cervical spine reveal no abnormal 
 
            condition.  Both Dr. McCoy and Dr. DeBartolo found no 
 
            permanent functional impairment.  Claimant returned to work 
 
            after having missed only four days of work.  He had no other 
 
            difficulties with his neck after his return.  Claimant has 
 
            not met his requisite burden of proof.  Claimant has not 
 
            proven that he has a permanent partial disability because of 
 
            his neck injury.  He has incurred a temporary total 
 
            disability.  He has been paid his entitlement to those 
 
            temporary total disability benefits.
 
            
 
                 The next issues before the undersigned involve file 
 
            number 923563.  The parties have stipulated that claimant 
 
            has sustained cumulative-type injuries.  Cumulative injuries 
 
            involve a disability which develops gradually over a period 
 
            of time.  The compensable injury is held to occur when 
 
            because of pain or physical disability, the claimant can no 
 
            longer work.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985).
 
            
 
                 The parties are in disagreement as to the nature and 
 
            extent of claimant's condition.  Claimant requests 
 
            permanency benefits for a bilateral wrist condition, and yet 
 
            a bilateral shoulder condition.  Defendants have compensated 
 
            claimant for:
 
            
 
                    We have received and enclosed for your review 
 
                 the medical report from Dr. DeBartolo's 
 
                 examination of Mr. Bryant on November 27, 1990.  
 
                 The doctor gives a rating of 2% loss of use of 
 
                 each upper extremity.  According to the A.M.A. 
 
                 Guide, 2% of an extremity would translate to 1% 
 
                 loss of the man as a whole.  According to the 
 
                 combined value tables, 1 and 1 combine to 2% loss 
 
                 of use.  This would be 10 weeks at Mr. Bryant's 
 
                 rate of $208.15.  I will be taking credit for PPD 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 payments beginning on December 1, 1990.
 
            
 
            (Cl. Ex. 30, p. 1)
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects or compensatory change, result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn be the basis for a rating of industrial disability.  It 
 
            is the anatomical situs of the permanent injury or 
 
            impairment which determines whether the schedules in section 
 
            85.34(2)(a) - (t) are applied.  Lauhoff Grain v. McIntosh, 
 
            395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber 
 
            Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores 
 
            Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 A wrist injury generally is an injury to the hand, not 
 
            the upper extremity.  The hand extends to the distal end of 
 
            the radius and ulna, including the carpus or wrist.  Elam v. 
 
            Midland Mfg., II Iowa Industrial Commissioner Report 141 
 
            (App. 1981).
 
            
 
                 When disability is found in the shoulder, a body as a 
 
            whole situation may exist.  Alm v. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949).  In Nazarenus v. Oscar 
 
            Mayer & Co., II Iowa Industrial Commissioner Report 281 
 
            (App. 1982), a torn rotator cuff was found to cause 
 
            disability to the body as a whole.
 
            
 
                 Defendants specifically deny there has been permanent 
 
            impairment to the body as a whole.  Defendants have paid 
 
            claimant for a 2 percent loss of use of each extremity.  
 
            This computes to ten weeks of benefits.  Defendants maintain 
 
            there has only been a scheduled member injury.  The basis 
 
            for the payment is Dr. DeBartolo's examination of claimant 
 
            on November 27, 1990.  Dr. DeBartolo has declined to rate 
 
            claimant's shoulders as having a functional impairment.  He 
 
            has examined and treated claimant.  Dr. DeBartolo has 
 
            determined that claimant is able to fully forward flex, 
 
            abduct, internally and has externally rotate both shoulders, 
 
            despite the fact that claimant had a previous left shoulder 
 
            injury which is unrelated to this incident.  (Cl. Ex. 21, p. 
 
            2)
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 Since Dr. DeBartolo was the treating orthopedist, 
 
            greater weight is given to his opinion than is given to the 
 
            opinion of Dr. McCoy.  Dr. McCoy was only retained for 
 
            purposes of rendering an opinion in anticipation of 
 
            litigation.  However, even if Dr. McCoy's opinion is 
 
            rendered equal weight with the opinion of Dr. DeBartolo, 
 
            claimant is still unable to establish that he has sustained 
 
            permanent injuries to his shoulders as Dr. McCoy was unable 
 
            "to find objective evidence of abnormality." (Cl. Ex. 22, p. 
 
            5)  Therefore, in light of the foregoing, claimant is 
 
            entitled to ten weeks of permanent partial disability 
 
            benefits at the stipulated rate of $208.15 per week, and 
 
            commencing on December 1, 1990.  Defendants shall receive 
 
            credit for the same since they have paid all ten weeks.
 
            
 
                 The next issue to address in file number 923563 is 
 
            whether claimant is entitled to penalty benefits pursuant to 
 
            section 86.13(4).  The relevant portion provides that:
 
            
 
                    If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 Section 86.13 permits an award of up to 50 percent of 
 
            the amount of benefits delayed or denied if a delay in 
 
            commencement or termination of benefits occurs without 
 
            reasonable or probable cause or excuse.  The standard for 
 
            evaluating the reasonableness of defendants' delay in 
 
            commencement or termination is whether the claim is fairly 
 
            debatable.  Where a claim is shown to be fairly debatable, 
 
            defendants do not act unreasonably in denying payment.  See 
 
            Stanley v. Wilson Foods Corp., File No. 753405 (App. August 
 
            23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No. 
 
            818849 (App. November 1, 1989).
 
            
 
                 Since defendants have paid claimant pursuant to the 
 
            opinion of Dr. DeBartolo, they have acted reasonably.  They 
 
            have paid all of the benefits due to claimant.  They have 
 
            not terminated benefits unreasonably.  Consequently, 86.13 
 
            benefits are not appropriate here.
 
            
 
                 The next issue deals with the cost of an independent 
 
            medical exam pursuant to section 85.39.  This code provision 
 
            provides that:
 
            
 
                 Iowa Code section 85.39 provides, in part:
 
            
 
                    If an evaluation of permanent disability has 
 
                 been made by a physician retained by the employer 
 
                 and the employee believes this evaluation to be 
 
                 too low, the employee shall, upon application to 
 
                 the commissioner and upon delivery of a copy of 
 
                 the application to the employer and its insurance 
 
                 carrier, be reimbursed by the employer the 
 
                 reasonable fee for a subsequent examination by a 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 physician of the employee's own choice, and 
 
                 reasonably necessary transportation expenses 
 
                 incurred for the examination.  The physician 
 
                 chosen by the employee has the right to confer 
 
                 with and obtain from the employer-retained 
 
                 physician sufficient history of the injury to make 
 
                 a proper examination.
 
            
 
                 The employee who requests an examination bears the 
 
            burden of proof with respect to the reasonableness of the 
 
            charges.  Hoegh v. Embassy Club, I Iowa Indus. Comm'r Rep. 
 
            151 (Appeal Dec. 1981).
 
            
 
                 In this specific instance, claimant requests payment 
 
            from defendants of the following:
 
            
 
                 Radiologists of MC, P.C.
 
                    4-19-91  C.B. Wilmarth, M.D. - X-Rays    $122.06
 
            
 
                 Mason City Clinic, P.D.                       89.00
 
            
 
                                          Total              $211.06
 
            
 
                 These charges are reasonable charges with respect to 
 
            section 85.39 medical examination.  Defendants are liable 
 
            for the same.
 
            
 
                 The final issue to address with respect to file number 
 
            923563 is the issue dealing with benefits from the Second 
 
            Injury Fund of Iowa.
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978);  Lawyer and Higgs, Iowa Workers' 
 
            Compensation - Law and Practice, section 17-1.
 
            
 
                 The fund is responsible for the difference between 
 
            total disability and disability for which the employer at 
 
            the time of the second injury is responsible.  Section 
 
            85.64.  Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 
 
            1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 
 
            (Iowa 1970).
 
            
 
                 Interest accrues on benefits the Fund pays commencing 
 
            on the date of the decision.  Second Injury Fund of Iowa v. 
 
            Braden, 459 N.W.2d 467 (Iowa 1990).
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 A deputy is entitled to determine the nature of 
 
            claimant's injury and entitlement to compensation from the 
 
            evidence presented, regardless of particular theories pled.  
 
            Shank v. Mercy Hospital Medical Center, File No. 719627 
 
            (Appeal Decision Filed August 28, 1989).
 
            
 
                 With respect to this claimant, he has previously 
 
            sustained a "crushing injury to his left leg."  (Cl. Ex. 2)  
 
            He has been diagnosed as having "a comminuted fracture of 
 
            left tibia and fibula."  (Cl. Ex. 2)  Approximately one year 
 
            later, claimant had refractured his left tibia and fibula 
 
            (Cl. Ex. 2, p. 2).  Claimant is precluded from running and 
 
            jumping for a period of time (Cl. Ex. 2, p. 4). No other 
 
            restrictions have been imposed by _____ Fisher, M.D., the 
 
            surgeon.  Claimant is capable of working for defendant 
 
            employer.  There have been years where claimant has made no 
 
            reports of left leg problems.  It is only after these 
 
            petitions were filed that claimant discussed his left leg 
 
            problems with the treating physician and the doctor who 
 
            conducted the independent medical exam.
 
            
 
                 Dr. DeBartolo opined there was no functional impairment 
 
            to the left lower extremity.  Dr. McCoy opined the following 
 
            after his examination of claimant on April 19, 1991:
 
            
 
                    He states that he has disability in his left 
 
                 lower extremity on the basis of restricted motion 
 
                 of his left ankle with pain in the ankle 
 
                 anteriorly on forced dorsiflexion of the ankle and 
 
                 to a lesser degree on forceful plantar flexion of 
 
                 the ankle.  If he walks a lot, that is over a mile 
 
                 or two, he has discomfort in the ankle.  He is 
 
                 aware that if he tries to kneel, he does not have 
 
                 a full range of dorsifleixon [sic] of the ankle 
 
                 and that the knee does not flex fully.  He is not 
 
                 aware of swelling of the knee or ankle.  He 
 
                 believes that his left leg is 1 1/2 inches shorter 
 
                 than its mate.  He is wearing a very soft counter 
 
                 loafer-type shoe with no heels but with a 3/4-inch 
 
                 inner heal lift.  He is not troubled by any 
 
                 particular symptoms in his knee.
 
            
 
                    On examining his lower extremity, one notes 
 
                 obvious shortening of his left leg.  The knee has 
 
                 a position of some posterior sag of the tibia on 
 
                 the distal femur suggestive of posterior cruciate 
 
                 injury.  There is quite a prominence of the tibia 
 
                 anteriorly in the middle third of the shin due to 
 
                 the bayonet overlap of the fracture fragments of 
 
                 the tibia.  There is l 3/8 inches of shortening of 
 
                 the left tibia with respect to the right tibia.  
 
                 Although there is posterior sag of the tibia on 
 
                 the femur on inspection, there is 2-3 mm of 
 
                 anterior-posterior play of the left knee compared 
 
                 with essentially none of the right knee when the 
 
                 anterior drawer test is performed.  He has 103 
 
                 limitation of flexion of the left and full 
 
                 extension.  There is no instability of the medial 
 
                 or lateral collateral ligament of the left knee.  
 
                 At the ankle, some fairly large osteophytes are 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 felt on the talus over the medial aspect of the 
 
                 talar neck.  These can be felt to impinge on the 
 
                 distal tibia just adjacent to the medial malleolus 
 
                 on dorsiflexion of the foot and obviously are a 
 
                 factor in the limitation of motion that is noted.  
 
                 He has about 43 limitation of dorsiflexion of the 
 
                 left foot and about 53 limitation of plantar 
 
                 flexion.  Inversion is limited by 103, there being 
 
                 353 inversion on the right and 253 on the left.  He 
 
                 has 53 limitation of eversion of the left ankle.  
 
                 There is no deformity of his foot or toes.  He has 
 
                 no sensory loss except for slight hypesthesia over 
 
                 the lateral aspect of his left foot.  Dorsal pedal 
 
                 pulses are symmetrically palpable with some 
 
                 difficulty.  Posterior tibial pulses are 
 
                 symmetrically readily palpable.  X-rays of his 
 
                 tibia and fibula show solid bony union with the 
 
                 proximal and distal fragments in excellent 
 
                 alignment but with bayonet opposition which 
 
                 accounts for the 1 3/8 inch shortening measured on 
 
                 comparing the two tibia.  The ankle x-rays show 
 
                 good maintenance of the ankle mortise with some 
 
                 slight narrowing anteriorly on the lateral view 
 
                 but no narrowing noted on the mortise view.  There 
 
                 is some hypertrophic bone medially and laterally 
 
                 at the styloids of the medial malleolus and 
 
                 lateral malleolus.  On lateral view of the ankle, 
 
                 large osteophytes can be seen on the talar neck 
 
                 arteriorly that would impinge with the anterior 
 
                 lip of the distal tibia on dorsiflexion  
 
                 Osteophytes are also seen posteriorly which would 
 
                 cause some limitation of flexion.
 
            
 
                    I thank that Mr. Bryant sustained a severe 
 
                 injury to his ankle consisting of sprains of the 
 
                 medial and lateral collateral ligaments at the 
 
                 time of his motorcycle accident.  I think this had 
 
                 led to the osteophyte formation that is currently 
 
                 present and causing limitation of motion.  I think 
 
                 there is increased risk that he will progress to 
 
                 degenerative arthritis with the further passage of 
 
                 time; however, the fact that 12 years have elapsed 
 
                 since his initial motorcycle accident without 
 
                 significant narrowing of the ankle mortise is a 
 
                 significant prognostic sign indicating that the 
 
                 progression toward degenerative arthritis of his 
 
                 left ankle will be very slow.  Based on the 
 
                 limitation of motion of his left knee and left 
 
                 ankle as well as his leg length discrepancy, I 
 
                 would
 
            
 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            rate his permanent partial impairment of the left 
 
            lower extremity at 24% of the lower extremity.
 
            
 
            (Cl. Ex. 22, pp. 2-4)
 
            
 
                 Dr. McCoy concurred with the functional capacity 
 
            evaluation which was ordered by Kenneth B. Washburn, M.D.  
 
            The evaluation provided for alternating standing and walking 
 
            (Cl. Ex. 10, p. 1). Claimant had objective evidence of an 
 
            impairment.  His left leg was 1 3/8 inches shorter than 
 
            claimant's right leg.  The shorter leg necessitated the 
 
            wearing of a 3/4 inch inner heel lift (Cl. Ex. 22, p. 3).  
 
            Claimant also had a loss of the range of motion of his left 
 
            knee and foot.  There were osteophytes formed (Cl. Ex. 22).
 
            
 
                 It is clear to the undersigned that claimant has 
 
            incurred a permanent injury to his left lower leg.  There is 
 
            objective evidence to support such a permanency.  The left 
 
            leg injury qualifies as "a first injury" under the statute 
 
            governing the Second Injury Fund of Iowa.  However, this 
 
            deputy questions the 24 percent functional impairment rating 
 
            which Dr. McCoy has assessed.  The rating is excessive given 
 
            the fact that claimant has had few difficulties with his 
 
            left leg for nearly 18 years.  It is the determination of 
 
            the undersigned that claimant's functional impairment is 12 
 
            percent to the left leg.
 
            
 
                 Likewise, it is the determination of the undersigned 
 
            that claimant is industrially disabled.  He is a young man.  
 
            He is to avoid repetitive activities using the upper 
 
            extremities.  He cannot lift more than 50 pounds.  Claimant 
 
            is precluded from returning to his former position in the 
 
            packing plant where he had earned $8.55 per hour.  Claimant 
 
            has availed himself of the services of the Iowa Department 
 
            of Vocational Rehabilitation.  He has obtained a GED and he 
 
            is enrolled in college.  Claimant has decided not to seek 
 
            full-time employment on a regular basis since he is 
 
            furthering his education.  Casual jobs which claimant has 
 
            had since leaving the employment of defendant, have all been 
 
            in the $5 per hour range.  It is the determination of the 
 
            undersigned that claimant has a 30 percent industrial 
 
            disability.
 
            
 
                 Section 86.64 is applicable.  The following formula is 
 
            used to determine the liability of the Second Injury Fund:
 
            
 
                 150 weeks - industrial disability from all impairments:
 
            
 
                      -  24 weeks - pre-existing disabilities
 
                                      (220 x .12 = 24)
 
                      -  10 weeks - amount of disability for which
 
                                      defendant-employer is responsible
 
                    _____________
 
            
 
                        116 weeks - amount of weeks for which the Fund
 
                                      is responsible.
 
            
 
                 The Fund is responsible for 116 weeks of permanent 
 
            partial disability benefits at the stipulated rate of 
 
            $208.15 per week.  Said benefits are to commence following 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            the final payment of permanency benefits paid by 
 
            defendant-employer.  Interest shall accrue from the date 
 
            this decision is filed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 With respect to file number 887556, claimant shall take 
 
            nothing further from these proceedings.
 
            
 
                 With respect to file number 923563, defendant employer 
 
            shall pay unto claimant ten (10) weeks of permanent partial 
 
            disability benefits at the stipulated rate of two hundred 
 
            eight and 15/100 dollars ($208.15) per week, and commencing 
 
            on December 1, 1990.
 
            
 
                 Defendant employer shall also pay section 85.39 
 
            examination costs in the sum of two hundred eleven and 
 
            06/100 dollars ($211.06).
 
            
 
                 Defendant-employer is to take credit for all benefits 
 
            previously paid.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Defendant Second Injury Fund of Iowa shall pay one 
 
            hundred sixteen (116) weeks of section 85.64 benefits 
 
            commencing on the day after all permanency benefits have 
 
            been paid by defendant employer.  Interest at the rate of 
 
            ten percent (10%) per year shall be paid commencing on the 
 
            date of the filing of this decision.
 
            
 
                 Costs are taxed to defendants.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division and pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr Robert S Kinsey III
 
            Attorney at Law
 
            214 N Adams
 
            P O Box 679
 
            Mason City IA 50401
 
            
 
            Mr Marvin Duckworth
 
            Attorney at Law
 
            2700 Grand Ave  Ste 111
 
            Des Moines IA 50312
 
            
 
            Mr Charles S Lavorato
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines IA 50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-3200; 5-1803.1
 
                      Filed October 28, 1992
 
                      Michelle A. McGovern
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAVID L. BRYANT,              :
 
                                          :
 
                 Claimant,                :
 
                                          :       File No. 887556
 
            vs.                           :                923563
 
                                          :
 
            ARMOUR FOOD CO./CON AGRA,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-3200
 
            Claimant was awarded Second Injury Fund benefits.
 
            
 
            5-1803.1
 
            Claimant was awarded benefits pursuant to the schedule.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed February 21, 1991
 
                           LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            OTTO SCHNEIDER,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :      File Nos. 904873,
 
                      :       923601 & 923602
 
            PIEPER, INC.,  :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            CIGNA INSURANCE COMPANY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            
 
            5-1803
 
            Extent of disability benefits.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed February 21, 1991
 
                           LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            OTTO SCHNEIDER,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :      File Nos. 904873,
 
                      :       923601 & 923602
 
            PIEPER, INC.,  :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :       D E C I S I O N
 
            and       :
 
                      :
 
            CIGNA INSURANCE COMPANY, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            
 
            5-1803
 
            Extent of disability benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM K. ARNDT,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 923607
 
            J.E. MERIT CONSTRUCTORS, INC.,:
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, William K. Arndt, against his employer, J.E. 
 
            Merit Constructors, Inc., and its insurance carrier, CNA 
 
            Insurance Company, defendants.  The case was heard on May 
 
            22, 1990, in Davenport, Iowa.  The record consists of the 
 
            testimony of claimant, as well as the testimonies of Mark 
 
            Boeckoner, Joseph W. Flood, Rob Jones, and Mark Mahmens.  
 
            Additionally, the record consists of joint exhibits 1-7G.
 
            
 
                                      issues
 
            
 
                 The sole issues to be determined are:  1) whether 
 
            claimant received an injury which arose out of and in the 
 
            course of his employment; 2) whether there is a causal 
 
            relationship between the alleged injury and the disability; 
 
            3) whether claimant is entitled to temporary 
 
            disability/healing period benefits or permanent partial or 
 
            total disability benefits; 4) whether claimant is entitled 
 
            to medical benefits under section 85.27; and, 5) whether 
 
            notice under section 85.23 was provided.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant commenced his employment with defendant in 
 
            September of 1988.  He was hired to weld structural steel at 
 
            the ADM plant in Clinton, Iowa.  Eighty percent of 
 
            claimant's work time involved welding.  Twenty percent of 
 
            claimant's work time was devoted to grinding and using 
 
            vibratory tools.
 
            
 
                 Claimant sought medical treatment in June of 1989 from 
 
            Matt Prihoda, M.D.  Dr. Prihoda diagnosed claimant as having 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            bilateral carpal tunnel syndrome.  Claimant described the 
 
            symptoms he was experiencing at the time.  He indicated he 
 
            felt tingling in his fingers, including his thumb, index and 
 
            middle finger.  Claimant reported the symptoms increased and 
 
            were especially noticeable at night.
 
            
 
                 Claimant continued to work for defendant through the 
 
            summer of 1989.  Claimant reported to Rob Jones, safety 
 
            supervisor at the plant, that his doctor had stated the 
 
            injury was work related.  This was corroborated by two 
 
            witnesses, Mark Boeckner and Joseph Flood.  Two witnesses 
 
            for defendants, Rob Jones and Mark Mahmens, testified notice 
 
            of the work injury was never given to them from claimant 
 
            until some time in the middle of September of 1989.
 
            
 
                 Claimant had a median nerve decompression and 
 
            neurolysis of the median nerve of the left hand on September 
 
            28, 1989.  The surgery was performed by William D. Reinwein, 
 
            M.D., an orthopaedic surgeon.  Dr. Reinwein also performed a 
 
            carpal tunnel decompression on the right side on November 9, 
 
            1989.  Claimant was released to return to work on December 
 
            27, 1989, by Dr. Reinwein.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on September 14, 
 
            1989, which arose out of and in the course of his 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 
 
            128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            preponderance of the evidence that the injury of September 
 
            14, 1989, is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            that he has sustained an injury which arose out of and in 
 
            the course of his employment.  Likewise, claimant has 
 
            established the requisite causal connection between the 
 
            injury and the alleged disability.  Claimant has sufficient 
 
            medical evidence to support his claim.  As early as October 
 
            of 1989, Dr. Prihoda opined:
 
            
 
                 Mr. Arndt's symptoms have been consistent with his 
 
                 change in work habits that include a lot of tight 
 
                 gripping, wrist flexion, vibratory activity, his 
 
                 use of impact wrenches and other repetitive wrist 
 
                 actions.  Although there may be other extrenuous 
 
                 [sic] contributing factors outside of work that 
 
                 may have exacerbated his symptoms I think his work 
 
                 environment is the etiology of his current 
 
                 symptomatology.  You may confirm this with Dr. 
 
                 Miller who is his consulting orthopaedic surgeon.
 
            
 
                 Dennis L. Miller, M.D., did not dispute claimant's 
 
            claim that his work injury was work related.  Dr. Miller 
 
            wrote in his notes of September 13, 1989:
 
            
 
                 The patient had numerous questions regarding 
 
                 whether this was work related or not.  I indicated 
 
                 that the condition can occur with any kind of 
 
                 activity, although it may be more frequently 
 
                 associated with repetitive tasks.
 
            
 
                 Finally, Dr. Reinwein opined:
 
            
 
                 Mr. Arndt started experiencing difficulties with 
 
                 his hands while at work for J.E. Merrit [sic] 
 
                 Construction Co [sic] in September 1988.  
 
                 Initially, he noted that he stated experiencing 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 numbness and tingling in his hands following the 
 
                 use of vibrating tools while welding.  His 
 
                 condition worsened when he noted that repetitive 
 
                 tight gripping often demanded at his work as an 
 
                 iron worker was associated with weakness and 
 
                 tingling in his hands and fingers which 
 
                 considerably worsened during that type of work.  
 
                 He noted that he gradually began to drop things 
 
                 and after an active day of work, he developed ache 
 
                 in his hands and wrists that often awakened him at 
 
                 night.
 
            
 
                     ...
 
            
 
                 This is causally related to the repeated trauma to 
 
                 the area of the carpal tunnel while at work as an 
 
                 iron worker for J.E. Merit Construction Company in 
 
                 September of 1988.
 
            
 
                 Claimant has also established that he has sustained a 
 
            permanent partial disability.  The right of a worker to 
 
            receive compensation for injuries sustained which arose out 
 
            of and in the course of employment is statutory. The statute 
 
            conferring this right can also fix the amount of 
 
            compensation to be paid for different specific injuries, and 
 
            the employee is not entitled to compensation except as 
 
            provided by the statute.  Soukup v. Shores Co., 222 Iowa 
 
            272, 268 N.W. 598 (1936).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects (or compensatory change), result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn form the basis for a rating of industrial disability.  
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).  Soukup, 222 Iowa 272, 268 N.W. 598 (1936).
 
            In the case at hand, claimant was diagnosed as having bilat
 
            eral carpal tunnel syndrome.  There was a single injury 
 
            date.  Both hands were injured as a result.  Therefore, 
 
            section 85.34(2)(s) is applicable.  Section 85.34(2)(s) 
 
            provides as follows:
 
            
 
                 The loss of both arms, or both hands, or both 
 
                 feet, or both legs, or both eyes, or any two 
 
                 thereof, caused by a single accident, shall equal 
 
                 five hundred weeks and shall be compensated as 
 
                 such, however, if said employee is permanently and 
 
                 totally disabled the employee may be entitled to 
 
                 benefits under subsection 3.
 
            
 
                 Dr. Reinwein provided the following impairment rating:
 
            
 
                 Muscle testing of the fingers revealed complete 
 
                 range of motion against gravity with some 
 
                 resistance, which is equivalent of a 20 percent 
 
                 loss of function due to loss of strength.  
 
                 Permanent Partial Impairment, according to the AMA 
 
                 Guide is 7 Percent Impairment of right upper 
 
                 extremity, and 7 percent impairment for left upper 
 
                 extremity.  On the neurological examination, there 
 
                 was hypoesthesia of the median nerve in relation 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 to the hand.  There was weakness of the oponens of 
 
                 the thumb and also of the abductor brevis.  The 
 
                 Tinel Test was positive as well as Phalen Test.  
 
                 These findings were symmetrical and present in 
 
                 both hands.
 
            
 
                 Under Elam v. Midland Manufacturing, II Industrial 
 
            Commissioner's Report 141 (1981), an injury to the wrist is 
 
            an injury to the hand.  Therefore, the aforementioned 
 
            impairment ratings to the upper extremities must be 
 
            calculated to ratings to the hand.  These equal eight 
 
            percent to the right hand and eight percent to the left 
 
            hand.  Using the combined values chart of the AMA Guides to 
 
            the Evaluation of Permanent Impairment, this equals 15 
 
            percent under section 85.34(2)(s).  Claimant is entitled to 
 
            75 weeks of permanent partial disability benefits.
 
            
 
                 The next issue deals with healing period benefits.  
 
            Claimant worked one hour on September 15, 1989.  He was 
 
            placed under a 10 pound weight restriction.  He was laid off 
 
            by company officials.  There was no light duty work 
 
            available to claimant.  He was not released to return to 
 
            work until December 27, 1989, after he reached maximum 
 
            medical improvement on December 20, 1989.  Claimant was in 
 
            the healing period from September l6, 1989 to December 20, 
 
            1989.  This time frame involves 13.714 weeks of healing 
 
            period benefits.
 
            
 
                 The next issue to address is the issue of medical 
 
            benefits under section 85.27.  Section 85.27 provides in 
 
            relevant portion that:
 
            
 
                  The employer, for all injuries compensable under 
 
                 this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.  The employer shall also furnish 
 
                 reasonable and necessary crutches, artificial 
 
                 members and appliances but shall not be required 
 
                 to furnish more than one set of permanent 
 
                 prosthetic devices.
 
            
 
                 For purposes of this section, the employer is obliged 
 
            to furnish reasonable services and supplies to treat an 
 
            injured employee and has the right to choose the care.
 
            
 
                 Claimant alleges the following medical expenses are 
 
            reasonable and necessary and causally related to claimant's 
 
            work injury:
 
            
 
                 
 
                               Dr. William Reinwein             $ 
 
            3,580.00
 
            9/28/89            Franciscan Medical Center          
 
            1,720.80
 
            11/9/89            Franciscan Medical Center          
 
            1,043.25
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            6/28/89, 7/5/89    Mitchell Chiropractic Clinic          
 
            36.00
 
            9/28/89            Pathologists at Franciscan            
 
            36.25
 
            11/9/89            Sammy Marogil, M.D.,                 
 
            280.00
 
                                 anesthesiology
 
            9/28/89            Sammy Marogil, M.D.                  
 
            315.00
 
            9/19/89            Mercy Hospital                       
 
            561.00
 
                                 (electro diagnostic studies)             
 
                                                Total           $ 
 
            7,572.30
 
            
 
                 The undersigned determines all of the above are 
 
            causally related to claimant's work injury of September 14, 
 
            1989.  The charges appear reasonable and necessary.  
 
            Defendants, under section 85.27 are liable for the same.
 
            
 
                 The final issue to address is whether claimant has 
 
            complied with the provisions of section 85.23.  The section 
 
            reads as follows:
 
            
 
                 Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 The greater weight of the evidence establishes claimant 
 
            complied with section 85.23.  Claimant and two other 
 
            witnesses testified claimant tendered verbal notice to Rob 
 
            Jones, Safety Supervisor within 90 days.  Mr. Jones was a 
 
            duly authorized representative defendant of employer.  
 
            Claimant complied with the provisions of section 85.23.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay seventy-five (75) weeks of 
 
            permanent partial disability benefits to claimant at the 
 
            stipulated rate of three hundred fifty-nine and 86/l00 
 
            dollars ($359.86) per week commencing on December 21, 1989.
 
            
 
                 Defendants are to also pay thirteen point 
 
            seven-one-four (13.714) weeks of healing period benefits to 
 
            claimant at the stipulated rate of three hundred fifty-nine 
 
            and 86/l00 dollars ($359.86) per week for the period from 
 
            September 16, 1989 to December 20, 1989.
 
            
 
                 Defendants are to also pay the medical expenses listed 
 
            previously in the sum of seven thousand five hundred 
 
            seventy-two and 30/l00 dollars ($7,572.30).
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Payments that have accrued shall be paid in a lump sum 
 
            together with statutory interest thereon pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to Division of 
 
            Industrial Services Rule 343-3.1.
 
            
 
            
 
                 Signed and filed this ____ day of June, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Allan Hartsock
 
            Attorney at Law
 
            P O Box 4298
 
            Rock Island  IL  61204-4298
 
            
 
            Mr. Elliott R. McDonald, Jr.
 
            Attorney at Law
 
            P O Box 2746
 
            Davenport  IA  52809
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    5-1803; 2800
 
                                                    Filed June 25, 1990
 
                                                    MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM K. ARNDT,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :        File No. 923607
 
            J.E. MERIT CONSTRUCTORS, INC.,:
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Claimant incurred bilateral carpal tunnel syndrome while 
 
            working as an iron worker.  It was determined claimant 
 
            incurred a 15 percent permanent partial disability.
 
            
 
            
 
            2800
 
            Claimant tendered notice of his work injury to his employer 
 
            within 90 days.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LOWRINE WALKER,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :       File No. 923622
 
            DES MOINES INDEPENDENT   :
 
            COMMUNITY SCHOOL DISTRICT,    :
 
            a/k/a DES MOINES PUBLIC  :
 
            SCHOOLS,  :
 
                      :     A R B I T R A T I O N
 
                 Employer, :
 
                      :        D E C I S I O N
 
            and       :
 
                      :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            statement of the case
 
            This case came on for hearing on May 14, 1991, in Des 
 
            Moines, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks compensation for permanent partial disability 
 
            benefits as a result of an alleged injury occurring on 
 
            October 31, 1987.  The record in the proceeding consists of 
 
            the testimony of claimant, Charles Walker, claimant's 
 
            husband, Barbara Kirkpatrick, Yvonne Coe and Rebecca 
 
            Ballentine; claimant's exhibit 1 through 21 and 24; and 
 
            defendants' exhibits 1 through 7.
 
            issues
 
            The issues for resolution are:
 
            1.  Whether claimant's October 31, 1987 injury arose out of 
 
            and in the course of her employment;
 
            2.  Whether claimant's alleged disability is causally 
 
            connected to an October 31, 1987 work-related injury;
 
            3.  The extent of claimant's permanent disability; and
 
            4.  Claimant's entitlement to 85.27 medical benefits, causal 
 
            connection being the issue as to this.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            Claimant is a 56-year-old who finished the eleventh grade 
 
            and has no GED or other formal education except she obtained 
 
            a beautician's certificate in 1953 in another state.  
 
            Claimant needed more hours in Iowa and did not pursue it 
 
            when she moved here in 1958.  Claimant described her work 
 
            history beginning in 1958 until she began working for 
 
            defendant employer in 1974 as a food server.  Claimant's 
 
            prior history involved working for the Savory Hotel and then 
 
            Younkers as an elevator operator.
 
            Claimant described her duties while working for defendant 
 
            employer at different schools.  In 1980 until her injury on 
 
            October 31, 1987, claimant worked at North High School as a 
 
            salad maker and when she was finished with that duty, she 
 
            worked as general help until she was ready to go home for 
 
            the day.  This job at North High School always involved 
 
            working as a salad maker, cleaning up and lifting cases of 
 
            lettuce weighing up to 20 pounds.
 
            Because of the nature of this case and the resolution of the 
 
            first key issue that will make all other issues moot, only 
 
            that testimony as related to this issue will be discussed.  
 
            This will elminate the need to go into detail on much of the 
 
            evidence, including the medical.
 
            The evidence as to whether claimant incurred an injury that 
 
            arose out of and in the course of her employment will be 
 
            next discussed.  There is no question claimant incurred an 
 
            injury on October 31, 1987, when she sat on a chair that 
 
            collapsed when claimant was attending a seminar in 
 
            Marshalltown, Iowa.  On October 31, 1987, a Saturday, 
 
            claimant went to a seminar in Marshalltown, Iowa, which 
 
            dealt with salad making.  As claimant was a salad maker for 
 
            defendant employer, she thought it would be beneficial for 
 
            her and her employer to further educate herself and get new 
 
            ideas to incorporate into the North High School program for 
 
            the benefit of the students.  Saturdays were not a school 
 
            work day.  Claimant was strictly on her own and attended 
 
            this seminar on a voluntary basis.  Claimant received no 
 
            monetary compensation nor was she granted administrative 
 
            annual leave with pay.
 
            Claimant went to this seminar with fellow employees, namely, 
 
            Yvonne Coe and Barbara Kirkpatrick, who is the manager of 
 
            the food service and cafeteria.
 
            Claimant gave the impression that if she gets the needed 
 
            credits at these seminars in order to get certified, if 
 
            certification is required, then one can make a higher hourly 
 
            pay of 10 cents per hour more.  One needs 15 credits every 
 
            three years to be certified.  Claimant said she was 
 
            certified already with the food service but did not recall 
 
            whether or not she was getting more hourly pay on October 
 
            31, 1987 because of that.
 
            Claimant testified that she was encouraged as a department 
 
            head to go to the seminars, including the October 31, 1987 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            seminar, if a person wanted to be certified.  Claimant said 
 
            Barbara Kirkpatrick, her manager, always wanted her to 
 
            receive a seminar flyer and asked her if she was going to 
 
            go.  Claimant said she felt she needed to go to get 
 
            certified.  Claimant indicated she was told her job was to 
 
            be certified.  Claimant related she would not have gone to 
 
            the seminar just to be going but she felt she should go to 
 
            get more money and help in her job.
 
            On cross-examination, claimant was specifically asked if 
 
            certification was required in 1987.  Claimant responded that 
 
            she thought it was required because she was told the head 
 
            person must be certified when she was transferred from 
 
            Edmunds School to North High School.
 
            Barbara Kirkpatrick, manager of the North High School school 
 
            cafeteria and food service, testifid she worked with 
 
            claimant over a period of three years.  She drove claimant 
 
            and a fellow employee to the Marshalltown seminar on 
 
            Saturday, October 31, 1987.  This seminar was put on by the 
 
            Association of Food Services workers.
 
            Kirkpatrick said defendant employer did not dissiminate the 
 
            brochure announcing the seminar but did help distribute it.  
 
            She indicated the employees are encouraged to go if they 
 
            want to get credits to be certified but it isn't mandatory 
 
            and claimant did not need to be certified.  Kirkpatrick 
 
            related that those who go to seminars pay their own dues and 
 
            are not reimbursed for their expenses but the employees who 
 
            get certified obtain extra hourly pay.  Fifteen credits over 
 
            a three year period is necessary for certification.  
 
            Kirkpatrick said she was reimbursed for her travel expenses 
 
            because of the position she held.
 
            Kirkpatrick said the seminar makes an employee's work easier 
 
            because of the suggestions and ideas given but there is no 
 
            urging by the supervisors to go to the seminars and the 
 
            school district, defendant employer, does not control the 
 
            seminars or the Iowa Association of Food Service workers 
 
            that put on the seminars.  This Iowa Assocation is a 
 
            professional organization and one can join the local, state 
 
            or national organization.
 
            Kirkpatrick said she must be certified as manager but she 
 
            emphasized claimant and others like her need not be 
 
            certified or be members of the association and that it is 
 
            voluntary.  She did not know if all employees were given 
 
            more money as of October 31, 1987, if they were certified.
 
            Kirkpatrick acknowledged she wears two hats, one as a 
 
            manager of defendant employer's food service and the other 
 
            as a member of the food service organization, who encourages 
 
            people to go to the seminars.  She said that claimant was 
 
            not required to go to the seminar.  She offered claimant and 
 
            others a ride to the seminar if they wanted to go.  
 
            Kirkpatrick did observe claimant sitting on a chair which 
 
            collapsed.
 
            Yvonne Coe, the head cook at North High School, and an 
 
            employee of defendant employer, has worked eight years with 
 
            claimant.  She said she does not have to be certified to be 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            head cook, only if she wants to be and she would get more 
 
            money.  She said it is anticipated in the next one and one-
 
            half years that certification will be required so all are 
 
            striving for certification.
 
            Coe indicated that the employees and she are encouraged to 
 
            go to seminars over the years and these seminars help a 
 
            person to better serve the school children.  Coe 
 
            acknowledged that one is not paid to go to the seminars and 
 
            one pays their own dues and one is not paid for their time 
 
            at the seminars or for their meals.  She also acknowledged 
 
            that the school district does not sponsor the seminar.
 
            Charles Walker testified.  As indicated earlier, due to the 
 
            nature of the decisiion and the key issue that may make 
 
            other issues moot, it is not necessary to set out his 
 
            testimony as it relates strictly to claimant's health and 
 
            the effect of the October 31, 1987 injury and her medical 
 
            condition.  Similar testimony by the other witnesses above 
 
            also has not been set out for the same reason.  Unless an 
 
            injury arises out of and in the course of one's employment, 
 
            then the medical evidence is not material.
 
            Rebecca Ballentine, defendant employer's assistant food 
 
            service director since April 1, 1987, testified she 
 
            supervises one-half of the Des Moines school's kitchens.  
 
            She said an employee need not be certified nor be a member 
 
            of the Food Service Association.  She has been a member and 
 
            held positions in the state and national associations.  
 
            Ballentine said the seminar was not sponsored by defendant 
 
            employer.  She emphasized that in October 1987 department 
 
            heads were not required to be certified and did not make 
 
            more money by being certified.  She said this policy is now 
 
            changed and this occurred shortly after October 1987.  She 
 
            said getting certified helps the individual and is an 
 
            assistance along with experience in order to get a job in 
 
            the school system.  Ms. Ballentine acknowledged that these 
 
            seminars are beneficial to the employer and employee to 
 
            attend and that is why they are planned on a Saturday.  The 
 
            employees are enthusiastic about these.  She admitted there 
 
            is peer pressure to go to seminars between members and 
 
            nonmembers.  She said sometimes people like herself are 
 
            speakers and the school districts lease their facilities for 
 
            these events.  This rent usually amounts to the paying of 
 
            the custodian's time to clean up after the seminar.
 
            The greater weight, and in some cases the entire weight of 
 
            the evidence, shows that:  (1) defendant employer did not 
 
            sponsor or make mandatory claimant's attendance at the 
 
            seminar; (2) defendant employer paid no expenses of any 
 
            kind, including but not limited to dues, travel, lunch, 
 
            registration, tuition and annual or administrative leave 
 
            with pay; (3) it was a Saturday and not a work or school 
 
            day; (4) claimant did not need certification to retain her 
 
            job or position; (5) defendant employer did not control the 
 
            meetings, speakers or topic of the seminar; (6) claimant's 
 
            attendance was voluntary, and on her own time; and (7) 
 
            training at that time was not a condition for a salary 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            increase or promotion.
 
            It seems undisputed that the seminar helped claimant to 
 
            learn new ideas or techinques useful to her in her job, 
 
            thereby making the seminar beneficial to her.  There is some 
 
            indirect benefit to the kids receiving her services through 
 
            defendant employer.  The undersigned finds it is not enough 
 
            that the employer would benefit indirectly from the 
 
            employee's increased knowledge and experience.
 
            The undersigned finds that claimant has failed in her burden 
 
            to show that she incurred an injury on October 31, 1987, 
 
            that arose out of and in the course of her employment.  
 
            Since the claimant has failed in her burden, all other 
 
            issues are moot.
 
            conclusions of law
 
            Claimant has the burden of proving by a preponderance of the 
 
            evidence that she received an injury on October 31, 1987, 
 
            which arose out of and in the course of her employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967). 
 
            An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            When an employee, by undertaking educational or training 
 
            programs, enhances his own proficiency in his work, he does 
 
            in a sense benefit his employer.  On the other hand, self-
 
            improvement is primarily the employee's own concern.  
 
            Obviously the ambitious clerk who is burning the midnight 
 
            oil studying to become an accountant cannot expect workmen's 
 
            comepnsation if his lamp blows up.  In some situations, 
 
            however, it may be found that, either by the contemplation 
 
            of the contrct or by custom, the educational activity is 
 
            part of the employment.
 
            
 
            1A Larson, Workmen's Compensation Law section 27.31(a),
 
            p. 5-380-381.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            It is further concluded that:
 
            Claimant did not incur an injury on October 31, 1987, that 
 
            arose out of and in the course of her employment.
 
            Claimant voluntarilay went to the Marshalltown seminar on 
 
            October 31, 1987.
 
            Defendant employer did not sponsor or control the seminar, 
 
            did not sponsor it nor make attendance mandatory.
 
            October 31, 1987 was a Saturday, a nonwork day, as between 
 
            claimant and defendant employer.
 
            Claimant did not receive pay or annual or administrative 
 
            leave to attend the seminar.
 
            The employer did not pay any expenses of claimant to attend 
 
            this seminar including travel, lunch, dues, registration or 
 
            tuition, and this training was not a condition for a salary 
 
            increase or a promotion.
 
            order
 
            THEREFORE, it is ordered:
 
            That claimant takes nothing from these proceedings.
 
            That the parties shall divide equally the court costs, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Jon B Schuster
 
            Attorney at Law
 
            303 Locust St
 
            Des Moines IA 50309
 
            
 
            Mr Andrew Bracken
 
            Ms Elizabeth Gregg Kennedy
 
            Attorneys at Law
 
            100 Court Ave Ste 600
 
            Des Moines IA 50309
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1100
 
                      Filed June 17, 1991
 
                      Bernard J. O'Malley
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LOWRINE WALKER,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :       File No. 923622
 
            DES MOINES INDEPENDENT   :
 
            COMMUNITY SCHOOL DISTRICT,    :
 
            a/k/a DES MOINES PUBLIC  :
 
            SCHOOLS,  :
 
                      :     A R B I T R A T I O N
 
                 Employer, :
 
                      :        D E C I S I O N
 
            and       :
 
                      :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1100
 
            Found claimant's injury did not arise out of and in the 
 
            course of her employment.
 
            Claimant went to a seminar in Marshalltown, Iowa, and was 
 
            hurt when her chair collapsed.  Claimant's attendance was 
 
            voluntary and the defendant employer paid no expenses of any 
 
            kind.  The seminar was on a Saturday.  Attendance was not 
 
            necessary for salary increase or promotion but the education 
 
            obtained did help claimant better perform her job.