BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
           
 
FRANCES OVERHOLSER,      
 
                                          File No. 923661
 
     Claimant,  
 
                                           A P P E A L
 
vs.        
 
                                          D E C I S I O N
 
U.S. WEST COMMUNICATIONS, INC.,
 
           
 
     Employer,  
 
     Self-Insured,   
 
     Defendant.      
 
_________________________________________________________________
 
The record, including the transcript of the hearing before the deputy 
 
and all exhibits admitted into the record, has been reviewed de novo on 
 
appeal.  The decision of the deputy filed November 9, 1994, is affirmed 
 
and is adopted as the final agency action in this case, with the 
 
following additional analysis:
 
 
 
At the time of the original settlement, the defendant employer was 
 
commendably accommodating claimant's condition.  The award contained in 
 
the settlement contemplated claimant's ongoing employment.
 
 
 
Claimant's loss of her job was due to an economic layoff.  She was not 
 
discharged for any reason related to her work injury.  The parties are 
 
in agreement that claimant has not suffered a physical change of 
 
condition.  Claimant urges that she has suffered an economic change of 
 
condition justifying a review-reopening of her award.
 
 
 
Normally, a layoff affects all workers equally and would not constitute 
 
a change of condition.  See Seager v. Armour-Dial, Inc., IV Iowa 
 
Industrial Comm'r Report 313 (App. March 20, 1984).  But for claimant, 
 
the effects of the layoff were greater because she relied on the 
 
accommodation of the employer, something she will now not enjoy when 
 
competing for employment in the job market.
 
 
 
It is true that the defendant employer, by accommodating an injured 
 
worker, is not obligated to guarantee that worker a job regardless of 
 
what later developments affect the employer.  An economic development 
 
requiring a layoff or even a plant closing may force the employer to 
 
layoff or discharge an injured worker who was previously being 
 
accommodated.
 
 
 
When an employer discharges an employee for reasons related to the 
 
injury, that may constitute a basis for an award of industrial 
 
disability, or in the case of review-reopening, a further award of 
 
industrial disability.  However, those facts are not present in this 
 
case.  The record shows the claimant was one of over 70 employees laid 
 
off, and the layoffs were determined by seniority and the union 
 
agreement.  Claimant was not laid off because of her injury.
 
 
 
On the other hand, the original settlement of claimant's injury did 
 
contemplate the fact that claimant was being accommodated by the 
 
employer.  That fact no longer exists.  In effect, defendant was not 
 
required to pay all the disability caused by the original injury at the 
 
time of the settlement, because part of that disability was alleviated 
 
by the accommodation.  Now, the accommodation no longer exists, and 
 
defendant must now pay the remainder of the disability caused by the 
 
original injury, as claimant is now suffering that additional 
 
disability as a result of her layoff status.
 
 
 
Defendant employer is not being penalized for laying off claimant.  It 
 

 
 
 
 
 
 
 
 
 
is recognized that the layoff was an economic necessity and done 
 
according to seniority and not because claimant had been injured.  
 
 
 
Claimant was instead laid off because the accommodation she previously 
 
enjoyed had to be withdrawn.  Even though this was not an intentional 
 
increase of disability on the part of employer, nevertheless it was an 
 
increase of claimant's disability.  Defendant employer enjoyed a 
 
benefit at the time of the settlement because of the accommodation; 
 
that benefit is now gone, and the full amount of the disability 
 
caused by the original injury must now be paid.
 
 
 
Claimant has shown a change of condition.  See Malloy v. Floyd Valley 
 
Packing Co., File Nos. 731149 and 750585 (App. August 26, 1992).
 
Interest pursuant to Iowa Code 85.30 shall begin from the date of this 
 
decision.  See Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 
 
109 (1957); Bird v. T.H.I. Command Hydraulics, Ruling on Adjudication 
 
of Law Points (January 30, 1990).
 
 
 
Claimant and defendant shall share equally the costs of the appeal 
 
including transcription of the hearing.
 
 
 
Signed and filed this ____ day of April, 1995.         
 
                                ________________________________                 
 
                                BYRON K. ORTON           
 
                                INDUSTRIAL COMMISSIONER
 
Copies To:
 
 
 
Mr. Channing L. Dutton
 
Attorney at Law
 
1200 35th St  STE 500
 
West Des Moines  IA  50266
 
 
 
Ms. Sara J. Sersland
 
Attorney at Law
 
1900 Hub Tower
 
699 Walnut
 
Des Moines  IA  50309
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                  1803; 2905
 
                                  Filed April 28, 1995
 
                                  BYRON K. ORTON
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
           
 
FRANCES OVERHOLSER,      
 
                                       File No. 923661
 
     Claimant,  
 
                                         A P P E A L
 
vs.        
 
                                       D E C I S I O N
 
U.S. WEST COMMUNICATIONS, INC.,
 
           
 
     Employer,  
 
     Self-Insured,   
 
     Defendant.      
 
___________________________________________________________
 
1803; 2905
 
Found claimant incurred an additional 30% loss of earning capacity due 
 
to an economic change in her condition or status from the time of her 
 
December 1991 agreement for settlement for an October 1987 work injury. 
 
 The parties agreed claimant still had the same 5% permanent body as a 
 
whole back impairment as she had at the time of the December 1991 
 
settlement, so a change in physical condition was not an issue.
 
Held, employer's accommodation of claimant in 1991 was a big factor in 
 
low industrial disability agreement when claimant now had no job and 
 
employer could not accommodate claimant.  Employer downsized its work 
 
force and claimant had very low seniority.  A layoff that results in 
 
the loss of an employer accommodation that was contemplated at the time 
 
of the original settlement or award constitutes a change of condition.
 
 
         
 
 
 
 
 
 
 
 
 
         
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
--------------------------------------------------------------                        
 
FRANCES OVERHOLSER,  
 
         
 
                                File No. 923661
 
         
 
     Claimant, 
 
         
 
vs.                               R E V I E W - 
 
         
 
U.S. WEST COMMUNICATIONS,      R E O P E N I N G
 
INC.,      
 
         
 
                                D E C I S I O N
 
     Employer, 
 
     Self-Insured,  
 
     Defendant.     
 
---------------------------------------------------------------         
 
                   STATEMENT OF THE CASE
 
         
 
     This case came on for hearing on October 29, 1994, at Des 
 
Moines, Iowa.  This is a proceeding in review-reopening 
 
wherein claimant seeks additional permanent partial 
 
disability benefits as a result of a change in economic 
 
conditions since the last agreement for settlement.  The 
 
record in the proceeding consists of the testimony of the 
 
claimant, Marlene Dotts, Mary Frances Brown, and Jan 
 
Hardcopf-Bickley; joint exhibits 1 through 7; and, 
 
defendants' exhibits A through W.
 
         
 
                  ISSUES
 
         
 

 
         
 
 
 
 
 
 
 
     The issues for resolution are:
 
         
 
     1.  Whether there is a causal connection as to any increased 
 
     disability; and,
 
         
 
     2.  The extent of claimant's increased disability, if any, 
 
     and entitlement to additional disability benefits.
 
         
 
                  FINDINGS OF FACT
 
         
 
     The undersigned deputy, having heard the testimony and 
 
considered all the evidence, finds that:
 
Claimant is a 54-year-old who finished the ninth grade and 
 
has her GED in Arizona and Iowa.  She took a course at Area 
 
11 as a legal secretary in 1971 or 1972 and took an 
 
incomplete in the course.
 
 
 
     At the time of claimant's injury on October 29, 1987, she 
 
was working for Northwestern Bell, which now is U.S.West 
 
Communications, Inc.  The undersigned hereafter, when 
 
applicable, will refer to defendant employer as U.S. West 
 
Communications.
 
         
 
     Claimant worked most of her adult life as a homemaker 
 
raising her children until 1984.  She related her limited 
 
job history and then in August 1984, she 
 
began working for defendant employer.  She related the 
 
particular job she did for defendant employer.  Claimant was 
 
injured on October 29, 1987.  The parties stipulated that 
 
claimant's medical condition is not an issue herein.  In 
 
other words, claimant in December of 1991 settled a work-
 
related back injury in an approval of agreement for 
 
settlement and the parties now have further agreed that 
 
there has been no physical change in claimant's condition 
 
which would warrant any increase in award because of a 
 
physical change.  Claimant had a 5 percent permanent 
 
impairment to her body as a whole and settled for 25 weeks 
 
of permanent partial disability benefits and her physical 
 
condition of her back in that regard is the same now.  
 
         
 

 
         
 
 
 
 
 
 
 
     Claimant is contending there is an economical change.
 
Claimant said she was receiving approximately $340 per week 
 
in 1987 and in December of 1991 when there was a settlement, 
 
she was making $450 per week.
 
 
 
     Claimant contends that at the time of the settlement in 
 
December 1991, she understood that she would still have a 
 
job in the future and that there was no hint of a layoff.
 
It is undisputed as far as the claimant is concerned that 
 
her back injury is the same now as it was back in 1991.  
 
Claimant was laid off in July of 1993.  She contends if 
 
there was no layoff she could still do her job today.  The 
 
claimant seemed to indicate that she was laid off in her 
 
position but no one else was and there was reference to 
 
defendants' exhibit G, page 20.  It appears from the facts 
 
that claimant had a very low seniority and of the apparent 
 
four persons in her category as general clerk, she was the 
 
lowest in seniority and began working in 1984.  The next one 
 
closest to her began work in 1973.
 
 
 
     Claimant testified that she was willing to work and bugged 
 
defendant employer to work.  She said she was willing to go 
 
to other cities in order to work.  Claimant said she had a 
 
choice of either voluntary layoff or involuntary layoff and 
 
that she chose the involuntary layoff which meant that she 
 
would get half of the layoff severance pay but would have 
 
rights to recall.  Claimant indicated it was this rights of 
 
recall that gave her a reason to choose the involuntary 
 
layoff procedure rather than voluntary.
 
 
 
     Claimant testified as to places she applied, a good many of 
 
which were through a list supplied to the claimant or made 
 
available to the claimant by defendant employer.
 
There was considerable testimony concerning claimant's 
 
physical condition now and before and what she can do or 
 
cannot do as to her physical ability.  The undersigned is 
 
         
 

 
         
 
 
 
 
 
 
 
not sure what importance that is in that the only issue 
 
herein as far as any changes in circumstances has to do with 
 
the alleged economic change of conditions and there has been 
 
no indication in the evidence or arguments of counsel that 
 
claimant's physical condition which they agreed is the same 
 
now as it was before as to her back and any body as a whole 
 
permanent impairment has nothing to do with claimant not 
 
obtaining work, making job applications, or being rehired by 
 
the defendant employer.  The undersigned therefore sees no 
 
necessity going into detail as to the medical evidence 
 
herein.  It appears claimant made a considerable number of 
 
contacts or applications for jobs within defendant 
 
employer's place of employment and as shown later by the 
 
employer's testimony there were not really any openings in 
 
most of those areas when she applied.  There is no list in 
 
evidence nor did claimant testify as to the places that she 
 
then applied for jobs, except for a few isolated incidents.  
 
She said she couldn't find her list.
 
 
 
     Marlene Dotts has worked for defendant employer for 24 years 
 
and is the current supervisor.  She described her duties and 
 
also what claimant's duties as a general clerk were.  She 
 
said she knew of the December 1992 layoff letter prior to 
 
the layoff of claimant.  She referred to defendant 
 
employer's exhibit G, page 1, which was a letter relating 
 
the downsizing of a company which is also referred to as a 
 
forced adjustment or a surplus declaration.  She  said the 
 
bargaining agreement determines how the adjustment is to be 
 
done and the particular jobs eliminated.  She indicated 
 
claimant's job was not the only one eliminated as there were 
 
56 others eliminated.  It appears that of all those whose 
 
jobs were eliminated in this adjustment did obtain a 
 
position elsewhere within the organization, whether in the 
 
         
 

 
         
 
 
 
 
 
 
 
local area or having to move, except for the claimant and 
 
she had the lowest position in the company in addition to 
 
the lowest seniority.
 
 
 
     Mary Frances Brown testified she has been with defendant 
 
employer for 30 years as a staff consultant.  She hires and 
 
places workers in job openings and vacancies and when there 
 
are surplus declarations or forced adjustments.  She 
 
indicated there are forms the employees can bring for 
 
requests to be put in other jobs or sign an agreement if 
 
they are accepting the voluntary payment plan.  She 
 
indicated the transfer rights of employees are controlled by 
 
the bargaining agreement and whether claimant could continue 
 
in her job.  She sat down with all the other employees in 
 
December 1992 and told them of their rights and how to 
 
apply.  One's wage schedule and position determines certain 
 
factors as to placement and she indicated claimant was in 
 
wage scale 9, which is the lowest paid job as a general 
 
clerk.  There are actually two positions, 10 and 11, below 
 
her, but there are no openings in this area as they were 
 
also, in total, part of the surplus declaration.  She went 
 
over the many jobs and categories and titles claimant has 
 
applied for that apparently were titles and positions within 
 
the defendant employer, but she indicated that only 10 
 
percent of what claimant applied for actually existed in the 
 
area.  Technically, there were only about 40 jobs that 
 
actually existed and claimant was qualified for less than 50 
 
percent of these.  In other words, there were only about 20 
 
jobs claimant applied for that she was qualified to do.  In 
 
those cases, there were no openings or claimant lacked 
 
experience or was low in seniority.
 
 
 
     She said claimant was eligible for training rights and that 
 
this training could be at any college or technical school 
 
for a 24 month period from the date of the layoff.  Claimant 
 
         
 

 
         
 
 
 
 
 
 
 
did not apply for these but the undersigned can understand 
 
that one who is 54 years of age and with claimant's prior 
 
education or lack thereof would not be a good subject for 
 
college training or sophisticated education.  Ms. Brown 
 
testified that claimant had some indication of possible job 
 
loss in 1991 because there were surplus declarations in her 
 
department as early as 1987.  She referred to defendants' 
 
exhibit H, page 2 and 3.  She acknowledged that not all of 
 
those individuals or positions referred to were laid off as 
 
some were placed in other jobs.  She said the declarations 
 
are by title and that the union is notified of the surplus 
 
and sometimes the company newsletter will make reference to 
 
that.
 
 
 
     On cross-examination, Ms. Brown acknowledged that the 
 
average employee's time of service currently is 17 years.    
 
There is testimony of the number of jobs she applied for in 
 
towns like Ankeny and Cedar Rapids and apparently from the 
 
defendant employer's testimony the jobs didn't exist or 
 
there were no openings.  Defendants' testimony seems to 
 
criticize claimant for applying 
 
for so many jobs when there were no openings and yet it 
 
seems contradictory in that the company seemed to have made 
 
no effort to indicate to the claimant that she was on a wild 
 
goose hunt or, in fact, the company through their actions in 
 
this area led her on such a wild goose hunt.  It would seem 
 
to the undersigned that the company knew there were no jobs 
 
available.  It also appears from defendants' testimony that 
 
claimant was doomed from the start as to hoping to work for 
 
defendant employer for very long.
 
 
 
     Jan Hardcopf-Bickley, a medical and vocational consultant 
 
for the past ten years, testified that she reviewed all the 
 
records, depositions and met with claimant.  She indicated 
 
claimant's skills are still in the sedentary or sedentary-
 
         
 

 
         
 
 
 
 
 
 
 
like category.  She testified as to claimant's transferable 
 
skills and what she thought she could do and things she 
 
didn't think she could do.  She indicated claimant really 
 
wanted a job and she has been attempting to find a job for 
 
claimant but she was only contacted by defendants to work 
 
with claimant on October 17, 1994, and her first interview 
 
with claimant was on Monday, October 24, which was two days 
 
before the hearing.  She said claimant's ability to keep a 
 
job now versus the situation in 1991 is no different.  She 
 
said claimant's record has been good as an employee.  She 
 
said there would be no chance for claimant to get a job 
 
making what she was making in December 1991.  The 
 
undersigned understands this was in the $12 to $13 per hour 
 
range.  Ms. Bickley indicated that claimant would only 
 
likely get a job which starts around $5.50 with the medium 
 
being $7.75 to $8 per hour.  Claimant had testified to the 
 
many fringe benefits she had at U.S. West and there was no 
 
indication that these jobs related by the rehabilitation 
 
consultant or the ranges included any fringe benefits at 
 
all.
 
 
 
     Ms. Bickley indicated that claimant's job seeking skills 
 
needed improvement and based this on the fact that claimant 
 
was unable to locate the list of employers with whom she had 
 
applied for jobs.  Ms. Bickley felt that there needs to be 
 
follow-up when an application is made.  She acknowledged 
 
that claimant being without work for 18 months can affect 
 
her job hunt, particularly at her age.  She indicated it is 
 
harder to find a job if one is unemployed than if one is 
 
already employed and it is hard to explain to a future 
 
employer why one has been off 18 months.
 
 
 
     She acknowledged she contacted defendant employer as to a 
 
job for claimant and to put it bluntly she got the same type 
 
of statistical information or run-around that claimant 
 
         
 

 
         
 
 
 
 
 
 
 
apparently either experienced or indirectly experienced by 
 
chasing all those jobs and titles on a list given to her 
 
when in fact there were no openings.  It is obvious from Ms. 
 
Bickley's testimony that claimant should get out on her own 
 
and not have any hope of being employed or taken back by 
 
defendant employer.
 
         
 
     She did indicate that the repetitive use of claimant's hands 
 
and upper extremities was a problem and there is no question 
 
this has nothing to do with any alleged injury herein but it 
 
is a fact that appears to have some undeterminable effect on 
 
certain jobs claimant might be able to obtain or desire.
 
Michael Makowsky, M.D., testified through his deposition on 
 
October 20, 1994. (Defendants' Exhibit J)  He testified he 
 
reviewed many records of claimant and set out in detail the 
 
various records and reports he reviewed.  He said his 
 
practice is limited to occupational medicine.
 
 
 
     The undersigned does not see the need of going into detail 
 
as the parties agreed at the beginning of this hearing that 
 
claimant's physical condition of her back and any permanent 
 
impairment have not changed since her December 1991 
 
settlement and, therefore, claimant's medical condition, not 
 
being an issue, is not important.  The evidence is clear 
 
that there is no condition or residue from claimant's 
 
December 1991 medical condition that has changed which would 
 
affect claimant's ability to obtain a job or keep a job 
 
versus her condition in December 1991.
 
 
 
     The undersigned does note with interest notwithstanding what 
 
was said above that the March 31, 1993 report of Paul B. 
 
Johnson, M.D., and Thomas W. Bower, L.P.T., shows at that 
 
time when a functional evaluation was being done that 
 
claimant's conduct indicated a submaximal effort and there 
 
was a distinct magnification of symptom exaggeration and 
 
symptom magnification tendencies.  This reflects on 
 
         
 

 
         
 
 
 
 
 
 
 
claimant's credibility and motivation.
 
 
 
     Claimant has the burden to show that she has suffered a 
 
greater industrial disability or a lesser earning capacity 
 
than she had in December 1991, at the time of her 
 
settlement.  The parties agree that there has been no change 
 
physically.  The undersigned will not look behind the 
 
understanding of the parties and their stipulations, 
 
notwithstanding the voluminous amount of medical that the 
 
parties submitted as exhibits, as if they were attempting to 
 
either disprove their stipulation or to support it.  If it 
 
wasn't an issue, the undersigned sees no necessity of such 
 
voluminous medical documents, many of which preceded 
 
December 1991.
 
 
 
     The application for approval of agreement of settlement in 
 
December 1991 is very brief.  From that document, one could 
 
not determine what was anticipated or for sure considered 
 
concerning claimant's job stability.  The undersigned 
 
believes it would be common knowledge that defendant 
 
employer is known as a very stable and large employer.  It 
 
is obviously a good company to work for considering what the 
 
claimant was making when she was working for them and 
 
considering the testimony that the average worker's time of 
 
employment currently with the company is 17 years as shown 
 
by defendants' oral evidence.  It would seem that claimant 
 
would have every reason to believe there would be some 
 
stability in her job.  Likewise, the employer has the right 
 
to downsize its company or make adjustments to aid the 
 
profitability.  There was a union bargaining contract in 
 
existence and that also affects the manner in which certain 
 
surplus declarations or forced adjustments are carried out.  
 
 
 
     There is no excuse for either side to blame the contract for 
 
problems they may have, whether they be problems on 
 
retaining employment or whether it be a manner in which jobs 
 
         
 

 
         
 
 
 
 
 
 
 
are eliminated or transfers or positions are filled.  This 
 
is an agreement by the union on behalf of the workers and 
 
the company and there is no evidence other than the fact it 
 
was agreed to in good faith.  That contract was in existence 
 
at the time of claimant's settlement agreement and a union 
 
contract was in existence at the time of this hearing.  The 
 
current contract, as shown by defendants' exhibit G, was 
 
effective August 16, 1992, but there is no evidence that the 
 
union contract in existence in December 1991 was any 
 
different, at least materially, as far as the terms that are 
 
effective herein.  It appears that the employees' income 
 
would rise periodically and there was testimony that 
 
claimant's income did substantially increase from the 1987 
 
injury until December 1991 and at the time of her layoff.
 
Defendant obviously takes the position that it cannot 
 
accommodate claimant because of the bargaining agreement as 
 
there are no openings or positions for 
 
which claimant is qualified or which due to her seniority 
 
she would be able to take over someone else, particularly 
 
with the downsizing that occurred.  The fact is, claimant 
 
had a condition that affected her earning capacity at the 
 
time of her 1991 settlement for which she believes she 
 
received reasonable compensation.  But, it is also fact that 
 
claimant had a job at which she had no reason to believe it 
 
was going to be eliminated within the next two years.  
 
         
 
     Although the company had the right to eliminate the job, the 
 
fact is with claimant's medical condition it is not easy to 
 
get employment with a new employer and even more so with her 
 
lack of any real education or transferable skills.  It also 
 
appears from the medical that claimant has some impairment 
 
from carpal tunnel or upper extremity cumulative injury and 
 
this also will and can have an effect on claimant's job 
 
opportunities.  That is not an issue herein as to 
 
         
 

 
         
 
 
 
 
 
 
 
compensation for the same but it is a fact that the 
 
undersigned must consider in determining the total effect of 
 
claimant's total medical condition on her ability to find 
 
employment and the extent of any additional loss of earning 
 
capacity that might be attributed to her back condition only 
 
occurring in 1987.
 
 
 
     It appears clear to the undersigned that claimant has not 
 
been refused employment or has not been able to obtain a job 
 
because of her physical condition, and for sure because of 
 
any physical condition in excess or greater than at the time 
 
of her settlement in December 1991.  One big change since 
 
1991 is that we have an employer who cannot and is not able 
 
to now accommodate claimant based on the record we have 
 
herein where in 1991, they were accommodating the claimant 
 
and she was receiving substantial income notwithstanding her 
 
medical condition.  It is no excuse that the union contract 
 
is affecting their ability to accommodate claimant in that 
 
that contract was triggered by the mere fact that the 
 
company decided to downsize or eliminate some of the 
 
positions.  This is a right they had but this is affecting 
 
claimant as to her earning capacity.
 
         
 
     There is testimony that claimant could not expect to make 
 
close to what she was making at defendant employer and, in 
 
fact, she mostly likely would start around $5.50 and no more 
 
than $7.75 to $8.  There is testimony that these positions 
 
would enable her to get certain increase in raises but that 
 
would be true with any company including defendant employer 
 
if she was employed there.
 
         
 
     There is testimony that claimant was offered the job on the 
 
day of her hearing or at least an interview and that she 
 
couldn't go because of the hearing date, and, that the 
 
vocational rehabilitation person who became involved just 
 
within two weeks of this hearing also had some job 
 
         
 

 
         
 
 
 
 
 
 
 
interviews set up for her.  She seemed to indicate these 
 
might be promising.  The fact is the undersigned cannot and 
 
will not speculate and claimant has not been found a job.  
 
Why the defendants waited until less than two weeks before 
 
the hearing to hire a vocational rehabilitation consultant 
 
is unknown.  The undersigned must consider the facts as they 
 
exist as of the date of the hearing.  It is obvious U.S. 
 
         
 
     West will not, cannot and does not intend to take claimant 
 
back.  It appears that any job that the vocational 
 
rehabilitation consultant was talking about would have been 
 
the low end of claimant's anticipated scale that she felt 
 
claimant could earn, which the undersigned believes would 
 
probably start off in the area of $5.50 up to $7.75.
 
         
 
     The undersigned reiterates that he finds claimant was not 
 
rejected as to a job on account of any effects of her back 
 
injury.  The undersigned also believes 
 
that there is a disincentive for claimant to be very active 
 
seeking employment when she is receiving weekly or biweekly 
 
amounts of unemployment.
 
         
 
     The undersigned finds that the fact of claimant being 
 
accommodated by the defendants and having a very good and 
 
substantial job considering her skills and education was or 
 
would have been an important factor in the amount of 
 
settlement claimant agreed to in December of 1991.  
 
 
 
     Accommodations by the employer is one of several factors to 
 
determine the extent of claimant's industrial disability  or 
 
loss of earning capacity.  This seems even more true when 
 
the undersigned sees that claimant agreed to a 5 percent 
 
industrial disability based on a 5 percent impairment to the 
 
body as a whole and had some general restrictions.  It has 
 
become common knowledge and this agency's expertise that it 
 
is not too often that one's industrial disability is the 
 
same as one's body as a whole permanent impairment and it is 
 
         
 

 
         
 
 
 
 
 
 
 
very rarely less.  Impairment is only one of many factors in 
 
determining one's industrial disability or loss of earning 
 
capacity.  Again, the undersigned is not looking behind the 
 
reasonableness of the prior agreement but only wants to 
 
emphasize the fact that agreement based on the evidence in 
 
this case would leave the undersigned to believe the fact 
 
claimant had a very good job and was accommodated by the 
 
employer had to have been a very big factor.  The agreement 
 
does not allude to this factor at all.
 
         
 
     Because the employer is no longer being able to accommodate 
 
the claimant and because of the evidence in this case 
 
concerning claimant's employment probabilities and the facts 
 
that exist at the time of the hearing, the undersigned finds 
 
that claimant has a substantially greater loss of earning 
 
capacity than she had on December 19, 1991.
 
 
 
     Taking into consideration claimant's medical condition has 
 
not changed since her settlement, her age, work experience, 
 
transferable skills, education, her wages at the time of the 
 
agreement, the fact that the employer was accommodating her 
 
and her income possibilities now, the nature of her injury 
 
and location, her motivation, and the company's inability to 
 
give claimant any work, the undersigned finds that claimant 
 
has currently a 35 percent industrial disability which means 
 
that claimant has 30 percent more loss of earning capacity 
 
than she had in December 1991, when she entered into her 
 
settlement.
 
         
 
     The undersigned further finds that this increase in 
 
industrial disability was caused by her October 29, 1987 
 
work injury.  Any benefits would begin from the day of this 
 
decision and interest would accrue therefrom also.
 
         
 
                  CONCLUSIONS OF LAW
 
         
 
                    
 
         
 
     Upon review-reopening, claimant has the burden to show 
 
         
 

 
         
 
 
 
 
 
 
 
a change in condition related to the original injury since 
 
the original award or settlement was made.  The change may 
 
be either economic or physical.  Blacksmith v. All-American, 
 
Inc., 290 N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250 
 
Iowa 787, 96 N.W.2d 321 (1959).  A mere difference of 
 
opinion of experts as to the percentage of disability 
 
arising from an original injury is not sufficient to justify 
 
a different determination on a petition for review-
 
reopening.  Rather, claimant's condition must have worsened 
 
or deteriorated in a manner not contemplated at the time of 
 
the initial award or settlement before an award on review-
 
reopening is appropriate.  Bousfield v. Sisters of Mercy, 
 
249 Iowa 64, 86 N.W.2d 109 (1957).  A failure of a condition 
 
to improve to the extent anticipated originally may also 
 
constitute a change of condition.  Meyers v. Holiday Inn of 
 
Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa Ct. App. 1978).
 
         
 
     Interest accrues on awards of permanent disability in 
 
review-reopening proceedings from a prior award or 
 
settlement from the date of the final agency decision 
 
awarding further review-reopening benefits.  Bousfield v. 
 
Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).
 
         
 
     It is further concluded that:
 
         
 
        As a result of claimant's October 29, 1987 
 
        injury, claimant has an increase in industrial 
 
        disability or loss of earning capacity since 
 
        her settlement in December 1991.  Said 
 
        increase is the result of a substantial change 
 
        in claimant's economical situation and not as 
 
        a result of any physical change.
 
         
 
                                  ORDER
 
         
 
     THEREFORE, it is ordered:
 
         
 
     That defendants shall pay unto claimant one hundred fifty 
 
(150) additional weeks of permanent partial disability 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
benefits at the rate of two hundred seventeen and 03/100 
 
dollars ($217.03) beginning from the date of this decision.
 
         
 
     That defendants shall pay interest on benefits awarded 
 
herein as set forth in Iowa Code section 85.30, from the 
 
date of this decision.
 
         
 
     That defendants shall pay the costs of this action, pursuant 
 
to rule 343 IAC 4.33.
 
         
 
     That defendants shall file an activity report upon payment 
 
of this award as required by this agency, pursuant to rule 
 
343 IAC 3.1.
 
         
 
     Signed and filed this ____ day of November, 1994.
 
         
 
                  
 
         
 
                               ______________________________
 
                               BERNARD J. O'MALLEY
 
                                DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
                  
 
         
 
Copies to:
 
         
 
Mr Channing L Dutton
 
Attorney at Law
 
West Towers Office
 
1200 35th ST  Ste 500
 
West Des Moines IA 50265-5358
 
         
 
Mr George A Carroll
 
Attorney at Law
 
U S West Communications
 
200 S 5th St  Room 1800
 
Minneapolis MN 55483-0001
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                  
 
Ms Sara Sersland
 
Attorney at Law
 
1900 Hub Tower
 
699 Walnut
 
Des Moines IA 50309-3947
 
         
 
                  
 
         
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                      1803; 2905
 
                                      Filed November 9, 1994
 
                                      Bernard J. O'Malley
 
         
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 ------------------------------------------------------------------        
 
 FRANCES OVERHOLSER,  
 
         
 
                                     File No. 923661
 
         
 
     Claimant, 
 
         
 
vs.                                     R E V I E W - 
 
         
 
U.S. WEST COMMUNICATIONS,            R E O P E N I N G
 
INC.,                                 D E C I S I O N
 
         
 
     Employer, 
 
     Self-Insured,  
 
     Defendant.     
 
-------------------------------------------------------------------         
 
1803; 2905
 
         
 
Found claimant incurred an additional 30% loss of earning 
 
capacity due to an economic change in her condition or 
 
status from the time of her December 1991 agreement for 
 
settlement for an October 1987 work injury.  The parties 
 
agreed claimant still had the same 5% permanent body as a 
 
whole back impairment as she had at the time of the December 
 
1991 settlement, so a change in physical condition was not 
 
an issue.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
Held, employer's accommodation of claimant in 1991 was a big 
 
factor in low industrial disability agreement when claimant 
 
now had no job and employer could not accommodate claimant.  
 
Employer downsized its work force and claimant had very low 
 
seniority.
 
         
 
         
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GENE A. NEUBERT, JR.,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 923664
 
            OLAN MILLS PORTRAIT STUDIOS,  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            GREAT AMERICAN INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Gene A. Neubert, Jr., against his employer, 
 
            Olan Mills Portrait Studios, Inc., and its insurance 
 
            carrier, Great American Insurance Company, defendants.  The 
 
            case was heard on February 11, 1991, in Cedar Rapids, Iowa 
 
            at the Linn County Courthouse.  The record consists of the 
 
            testimony of claimant.  The record also consists of the 
 
            testimony of Verlene Nelson, supervisor at Olan Mills.  
 
            Finally, the record consists of the following exhibits:  
 
            joint exhibits A and B; and, defendants' exhibits A-T.
 
            
 
                                      Issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            is entitled to temporary disability/healing period benefits 
 
            or permanent partial disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 29 years old.  He was employed as a 
 
            telephone sales manager by defendant.  He commenced his 
 
            employment on January 17, 1989.  Claimant had experienced 
 
            difficulties with his left knee as early as 1981.  At that 
 
            time, he was struck by a baseball bat and he sustained left 
 
            femur and tibia fractures.  As a result, claimant underwent 
 
            the placement of rods in both the femur and the tibia.  In 
 
            1988, claimant was experiencing difficulties and J. V. 
 
            Nepola removed the hardware from the left femur.
 
            
 
                 Prior to the filing of this claim, claimant had also 
 
            filed a workers' compensation claim against Reintjes of the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            South, Inc.  He alleged an injury to the left leg, both hips 
 
            and low back.  The case was approved as a special case 
 
            settlement by Deputy Industrial Commissioner Helenjean 
 
            Walleser on May 3, 1988.
 
            
 
                 On July 25, 1989, claimant was working at the Indian 
 
            Creek Studio.  Approximately 9:00 a.m., claimant went to the 
 
            bathroom.  He turned on the light and slipped on a wet 
 
            floor.  When he slipped, he hit a garbage can in the back 
 
            area.  Claimant also struck his knee when he fell onto the 
 
            floor.  His left knee kept popping.  Shortly after the 
 
            incident, claimant went to the emergency room at St. Luke's 
 
            Hospital for medical treatment.  Later, claimant complained 
 
            of low back pain.  X-rays were taken but they revealed no 
 
            fractures of the spine or left femur.
 
            
 
                 Claimant continued follow up care with his family 
 
            physician, David E. Kresnicka, M.D.  Physical therapy and 
 
            medications were prescribed.  Dr. Kresnicka referred 
 
            claimant to an orthopedic specialist, William Roberts, M.D.
 
            
 
                 Dr. Roberts examined claimant on August 16, 1989.  Dr. 
 
            Roberts, in his report of August 17, 1989, opined:
 
            
 
                 On examination of his left knee, there is noted to 
 
                 be no effusion.  There is no warmth.  There was 
 
                 some posteromedial joint line tenderness.  There 
 
                 was no pain with varus or valgus stress.  There 
 
                 was no instability of the knee.  McMurray's sign 
 
                 was questionably positive in the region of the 
 
                 posteromedial aspect of the knee.
 
            
 
                 IMPRESSION:  Probable posteromedial capsular 
 
                 strain,                     although posterior 
 
                 horn tear of the medial               meniscus 
 
                 cannot [sic] excluded at this                        
 
                 time.
 
            
 
                 RECOMMENDATIONS:  We will place the patient on 
 
                 Motrin 800 mg. t.i.d. for the next three weeks.  
 
                 He's to perform all activities as tolerated.  I 
 
                 will re-examined him at that time.  If his joint 
 
                 line discomfort persists and his McMurray's sign 
 
                 is positive then we might consider an arthroscopy 
 
                 if his symptoms do not improve.
 
            
 
            (Exhibit JE-100)
 
            
 
                 Later, Dr. Kresnicka referred claimant to J. Marsh, 
 
            M.D., at the University of Iowa Hospitals and Clinics.  Dr. 
 
            Marsh conducted an arthroscopy of the left knee on December 
 
            18, 1989.  Dr. Marsh found no evidence of internal 
 
            derangement of the left knee.  In his report of January 2, 
 
            1990, Dr. Marsh wrote:
 
            
 
                 As you probably know Gene Neubert had arthroscopy 
 
                 of his knee on December 18, 1989.  Examination of 
 
                 the intra-articular structures was completely 
 
                 normal.  Gene is now due for his return visit and 
 
                 at that time I would anticipate suture removal and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 rapid return to full function with respect to his 
 
                 knee.  Other treatment will probably include 
 
                 exercises and anti-inflammatory medication.  I do 
 
                 not expect any long-term disability from this 
 
                 problem.  Therefore, I would anticipate that 
 
                 within two wks. with respect to his knee, Mr. 
 
                 Neubert will have reached maximum medical 
 
                 improvement, and I would anticipate that he would 
 
                 be able to return to work at that time.  I have 
 
                 not evaluated Gene Neubert with respect to his 
 
                 back complaints.
 
            
 
            (Ex. JE-119)
 
            
 
                 Later. Dr. Marsh wrote in his office notes of February 
 
            14, 1990:
 
            
 
                 Gene Neubert is a 29 y/o WM s/p left femoral and 
 
                 tibial Ender rod removal 1Æ yrs.  ago, doing well 
 
                 with that.  He is 2 months s/p left knee 
 
                 arthroscopy for left knee pain of 6 mos. duration.  
 
                 The arthroscopy did not show any abnormalities.  
 
                 Today is his first clinic visit since the 
 
                 arthroscopy and the patient says that his knee is 
 
                 doing a lot better.  He is 100% weight bearing.  
 
                 He is doing exercises to strengthen his leg 
 
                 muscles and is not requiring any pain medication.  
 
                 Today the patient complains of lower back pain.  
 
                 This pain has been present since 7/89.  The pain 
 
                 is worse when standing, sitting, bending forwards 
 
                 or backwards.  It is relieved by laying down and 
 
                 ice packs.  The patient states that it feels like 
 
                 muscles are pulling.  The patient was on Naprosyn 
 
                 for lÆ months by local M.D. and this helped.  The 
 
                 patient has not taken any medication recently due 
 
                 to running out of pills.
 
            
 
                    ....
 
            
 
                 The patient denies any numbness or tingling 
 
                 running down the back of his leg.
 
            
 
                 Examination:  The left lateral tibia is slightly 
 
                 tender to palpation.  The ROM of the knee is 110o 
 
                 flexion , negative 15o extension.  There is no 
 
                 ligamentous laxity on exam.  Strength is 5/5 on 
 
                 the right and 4/5 on the left in the quadriceps, 
 
                 hamstrings, anterior tibialis, gastroc nemeus.  
 
                 There is decreased sensation to pinprick along the 
 
                 left lateral foot, left medial foot, left 
 
                 posterior calf, and left anterior medial thigh.  
 
                 There were no other neurological deficits.  
 
                 Examination of the back reveals flexion to 30o, 
 
                 extension to 15o, and rotation in both directions 
 
                 45o.  Straight leg test is negative.  The patient 
 
                 had 3/4 _____________ signs, twist was positive, 
 
                 head compression was positive, and reverse 
 
                 straight leg was positive.  The patient was 
 
                 overreactive to pain.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Assessment:  1.  Lower back pain of uncertain 
 
                 etiology, most likely mechanical.  2.  3-4 
 
                 incongruent ________ signs.  3.  Sensory loss in 
 
                 nonanatomical distribution in the left leg and 
 
                 thigh.
 
            
 
                 Plan:  Restart Naprosyn 500 mg PO bid 6 refills.  
 
                 Continue Amitriptyline 100 mg PO QHS, takes 
 
                 Naprosyn with food, sent to PT for exercise 
 
                 evaluation.  RTC in 6 wks. and consult Spine team.  
 
                 Encourage activity and limit weight lifting to 15 
 
                 lbs.
 
            
 
            (Ex. JE-120-121)
 
            
 
                 Claimant also complained of back problems subsequent to 
 
            his fall on July 25, 1989.  X-rays of the thoracic spine 
 
            were taken at St. Luke's Hospital.  Elwood E. Stone, M.D., a 
 
            radiologist, provided a report dated July 26, 1989.  In the 
 
            report Dr. Stone opined:
 
            
 
                 No evidence for acute abnormalities are 
 
                 identified.
 
            
 
                 IMPRESSION:  Mild scoliosis, no acute 
 
                 abnormalities.
 
            LUMBOSACRAL SPINE:  No acute abnormalities are 
 
            noted.
 
            IMPRESSION:  Unremarkable lumbar spine.
 
            
 
            (Ex. JE-60)
 
            
 
                 Several days later, Dr. Kresnicka wrote in his note of 
 
            July 31, 1989:
 
            
 
                 The patient slipped on some water in the bathroom 
 
                 at work and fell and struck his low back against 
 
                 the wastepaper can.  It happened on the 25th, in 
 
                 the morning, and since that time he has had 
 
                 extreme pain across the low back in the L2 and L4 
 
                 area; also around the left knee anteriorly.
 
            He has some tenderness to palpation in the upper 
 
            lumbar region and in the paraspinal muscles.  
 
            There is some muscle spasm and tenderness and a 
 
            lack of some of the normal lordosis of the lower 
 
            spine.  Reflexes and sensation appear to be intact 
 
            in both lower extremities.
 
            Contusion to low back slowly improving.
 
            Would continue with the Flexeril that he is using 
 
            as a muscle relaxant, #30, 1 up to t.i.d. and l 
 
            refill and would give him a slip for some PT as at 
 
            Mercy CarePT and use ice massage, electric stem, 
 
            heat or ultrasound to the low back and then 
 
            exercise to low back and legs.  Would also have 
 
            him try some Disalcid, 750 that he has at home for 
 
            pain and swelling, l or 2 three times a day.  
 
            Would recheck prn.  I think he could go back to 
 
            work later in the week.
 
            
 
            (Ex. JE-82-83)
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Claimant engaged in physical therapy for his back.  He 
 
            discontinued the therapy prior to completion of his 
 
            treatment.
 
            
 
                 At the time of the hearing, claimant was not employed.  
 
            As of July 18, 1990, claimant was offered a position as a 
 
            telephone operator position.  Claimant had not returned to 
 
            that position.
 
            
 
                                Conclusions of Law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the work injury is a 
 
            cause of the claimed disability.  A disability may be either 
 
            temporary or permanent.  In the case of a claim for 
 
            temporary disability, the claimant must establish that the 
 
            work injury was a cause of absence from work and lost 
 
            earnings during a period of recovery from the injury.  
 
            Generally, a claim of permanent disability invokes an 
 
            initial determination of whether the work injury was a cause 
 
            of permanent physical impairment or permanent limitation in 
 
            work activity.  However, in some instances, such as a job 
 
            transfer caused by a work injury, permanent disability 
 
            benefits can be awarded without a showing of a causal 
 
            connection to a physical change of condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, 
 
            positive or unequivocal language and the expert opinion may 
 
            be accepted or rejected, in whole or in part, by the trier 
 
            of fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  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 v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient along to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed disabil
 
            ity.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
            preexisting condition, an employee is not entitled to 
 
            recover for the results of a preexisting injury or disease 
 
            but can recover for an aggravation thereof which resulted in 
 
            the disability found to exist.  Olson v. Goodyear Service 
 
            Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).
 
            
 
                 Expert testimony that a condition could be caused by a 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            given injury coupled with additional, non-expert testimony 
 
            that claimant was not afflicted with the same condition 
 
            prior to the injury was sufficient to sustain an award.  
 
            Giere, 259 Iowa 1065, 146 N.W.2d 911 (1966).
 
            
 
                 When the result of an injury is loss to a scheduled 
 
            member, the compensation payable is limited to that set 
 
            forth in the appropriate subdivision of Iowa Code section 
 
            85.34(2).  Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961).
 
            
 
                 "Loss of use" of a member is equivalent to "loss" of 
 
            the member.  Moses v. National Union C.M. Co., 194 Iowa 819, 
 
            184 N.W.2d 746 (1922).
 
            
 
                 To be a preexisting condition, an actual health 
 
            impairment must exist, even if it is dormant.  Blacksmith, 
 
            290 N.W.2d 348, 354 (Iowa 1980).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
 
            (1962).
 
            
 
                 When an aggravation occurs in the performance of an 
 
            employer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment.  
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Our supreme court has stated many times that a claimant 
 
            may recover for a work connected aggravation of a 
 
            preexisting condition.  Almquist v. Shenandoah Nurseries, 
 
            218 Iowa 724, 254 N.W. 35 (1934).  See also Auxier v. 
 
            Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek 
 
            v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
            v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 
 
            N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 
 
            (1960).
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1960), and cases cited.
 
            
 
                 An employee is not entitled to recover for the results 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 
 
            Iowa 613, 106 N.W.2d 591 (1960).  See also Barz, 257 Iowa 
 
            508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 
 
            35 (1934).
 
            
 
                 In the case at hand, claimant has established that he 
 
            sustained a temporary total disability to his back and left 
 
            lower extremity.  He sustained muscle spasms in his back and 
 
            he had decreased range of motion.  Physical therapy was 
 
            prescribed to increase muscle tone.  Claimant participated 
 
            in the physical therapy program.
 
            
 
                 Likewise, the claimant sustained a temporary 
 
            aggravation to the condition of his left lower extremity.  
 
            There is no question claimant had prior injuries to his left 
 
            leg.  He had recovered from those injuries to the point 
 
            where he was able to work.  After his fall on July 25, 1989, 
 
            claimant was temporarily incapacitated.  He used a cane.  He 
 
            experienced pain and patellofemoral crepitance.  He had 
 
            persistent locking of the knee.  Physical therapy was 
 
            prescribed.  As of February 13, 1990, claimant had reached 
 
            maximum medical improvement.  The parties stipulated that 
 
            the relevant period would be from July 25, 1989 to February 
 
            13, 1990, in the event temporary total disability was found.
 
            
 
                 Claimant has not proven that he has sustained any 
 
            permanent disability to either his back or lower left 
 
            extremity as a result of the July 25, 1989 injury.  X-rays 
 
            did not reveal any fractures to the back or leg.  Claimant 
 
            had an unremarkable lumbar spine.  Dr. Roberts opined that 
 
            claimant's "pain threshhold is relatively low in that his 
 
            response to this presumed problem is excessive."  An 
 
            arthroscopy of the left knee revealed no internal 
 
            derangement.  The arthroscopic surgery revealed no new 
 
            injuries.  All intra-articular structures were normal.  
 
            Ernest M. Found, Jr., M.D., found no "permanent long term 
 
            sequelae to his subjective back complaints and assign a 
 
            permanent partial impairment of 0 percent."  (Defendants' 
 
            Ex. T)
 
            
 
                 Since there is a total lack of objective findings, the 
 
            undersigned determines claimant has no permanent partial 
 
            disability.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay temporary total disability 
 
            benefits for the period from July 25, 1989 to February 13, 
 
            1990, a period of twenty-nine point one-four-three (29.143) 
 
            weeks, at the stipulated rate of ninety-three and 22/00 
 
            dollars ($93.22) per week.
 
            
 
                 Defendants shall receive credit for all benefits paid 
 
            and not previously credited.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            required by this division pursuant to rule 343 IAC 3.l.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Richard A. Pundt
 
            Attorney at Law
 
            330 lst St SE
 
            Cedar Rapids  IA  52401
 
            
 
            Mr. Jon K. Swanson
 
            Attorney at Law
 
            900 Des Moines Bldg
 
            Des Moines  IA  50309
 
            
 
            Mr. Robert J. Todd
 
            Attorney at Law
 
            P O Box 1160
 
            Burlington  IA  52601
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed July 30, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GENE A. NEUBERT, JR.,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 923664
 
            OLAN MILLS PORTRAIT STUDIOS,  :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            GREAT AMERICAN INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            It was held that claimant could not meet his burden of proof 
 
            with respect to any permanency.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ELFEGA MENDOZA,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 923666
 
            IBP,                          :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on June 21, 1991, at 
 
            Burlington, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits to a scheduled member as a result of an 
 
            alleged October 28, 1987 injury.  The record in the 
 
            proceeding consists of the testimony of the claimant, 
 
            claimant's husband, Cheryl Schmitt, and Sherri Wilson; and 
 
            joint exhibits A through L.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged injury on October 28, 
 
            1987, arose out of and in the course of her employment;
 
            
 
                 2.  Whether claimant's alleged disability is causally 
 
            connected to her alleged October 28, 1987 work injury;
 
            
 
                 3.  The extent of claimant's permanent disability and 
 
            entitlement to disability benefits, if any.  A scheduled 
 
            member is involved, the dispute being as to whether it is 
 
            claimant's arm or hand; and,
 
            
 
                 4.  The payment of costs.  In particular dispute is the 
 
            payment of $15.50 and $20.00 set out in Part B of the cost 
 
            sheet which were costs incurred by a prior attorney for 
 
            claimant.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant testified through an interpreter.  Claimant 
 
            was born in Mexico and completed the sixth grade in Mexico 
 
            schools.  She is not currently working and has not worked 
 
            anywhere since leaving IBP in February 1988.  Claimant 
 
            worked nine months for defendant employer before she said 
 
            she injured herself on October 28, 1987.  Her first job with 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            defendant involved separating pig intestines without a 
 
            knife.  She used her hands and shoulders for periods of up 
 
            to ten hours per day, six days per week with one-half hour 
 
            lunch and two 15 minute breaks during the day.  Claimant did 
 
            this job for one month and was then changed to a position 
 
            involving shredding intestines and pulling and stuffing the 
 
            intestines onto a pipe or tube and washing the intestine 
 
            out.  This job required the use of her hands.
 
            
 
                 Claimant said her whole right arm hurts.  She said she 
 
            is feeling some symptoms in her left arm, but she is not 
 
            claiming any benefits or injury involving her left arm.  She 
 
            said she was not asked to leave her employment at IBP but 
 
            was put in jobs she was unable to do.
 
            
 
                 Claimant said defendant sent her first to Calvin 
 
            Atwell, M.D., who said there was nothing wrong with her but 
 
            said he commented as to why she doesn't have surgery.  She 
 
            said the company sent her to Anthony D'Angelo, D.O., an 
 
            orthopedic doctor, for an impairment rating.  She indicated 
 
            he suggested surgery.  Claimant indicated she did not want 
 
            surgery because people she knows that were operated on are 
 
            not as good as before the surgery.  Claimant expressed fear 
 
            about surgery.
 
            
 
                 Claimant indicated that currently when she lifts things 
 
            it feels like a tendon or nerve pulls and pain goes all the 
 
            way to her right elbow.  Claimant left her employment with 
 
            defendant on February 17, 1988.  She acknowledged that she 
 
            first saw the company doctor, Dr. Atwell, on April 18, 1989, 
 
            which was after she left defendant.  She indicated Dr. 
 
            Atwell gave a zero rating but she said he did recommend 
 
            surgery.
 
            
 
                 Claimant said Dr. D'Angelo gave her a right hand use 
 
            restriction.  In other words, she wasn't to work with the 
 
            whole right arm as she understood the situation.  She 
 
            related Dr. D'Angelo casted her right wrist up to the middle 
 
            of her elbow area.  She indicated it was treatment for her 
 
            whole arm.
 
            
 
                 Claimant admitted Dr. D'Angelo and R. F. Neiman, M.D., 
 
            recommended surgery and indicated that she would obtain some 
 
            relief for the arm.
 
            
 
                 Claimant said she lost no time from work.  She was put 
 
            on light duty working with a splint for awhile.  She said 
 
            weekly benefits have not been paid but she understands all 
 
            medical bills have been or will be paid by defendant.
 
            
 
                 Claimant's husband testified claimant had no right arm 
 
            problem before working for defendant.  After her October 28, 
 
            1987 injury he indicated claimant was unable to open cans 
 
            with a can opener.  He said if she picks up a glass of 
 
            liquid she will drop it and she can't wash dishes for a long 
 
            time.  He said claimant complains of a total arm to her 
 
            shoulder problem and he has to massage her back to eliminate 
 
            some of the pain.  He acknowledged claimant was in an 
 
            automobile accident which caused some neck, back and 
 
            shoulder problems but he said claimant's symptoms were 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            different from her IBP injury.
 
            
 
                 Defendant's attorney asked Mr. Mendoza if he had a 
 
            workers' compensation tunnel syndrome claim against 
 
            defendant and he said he did.  He said defendant has treated 
 
            him the same as his wife as he has received no benefits 
 
            either.
 
            
 
                 Cheryl Schmitt, defendant's medical department manager 
 
            since January 1990, has been with IBP since November 14, 
 
            1988, and at that time was a staff nurse.  She has been a 
 
            registered nurse since 1976.
 
            
 
                 Ms. Schmitt explained her duties and the keeping of the 
 
            employee's medical card file records.  She said if an 
 
            employee is given restrictions IBP gives a job appropriate 
 
            to the restrictions and the employee is expected to follow 
 
            the restrictions.  She indicated there are jobs at IBP that 
 
            require use of only one hand.
 
            
 
                 Ms. Schmitt indicated claimant's medical card shows 
 
            claimant was provided with such a job and had difficulty 
 
            adhering to the job with one hand.  She said claimant's 
 
            records (Jt. Ex. B1) show claimant was observed on two 
 
            occasions by a nurse using her right hand.  She acknowledged 
 
            Dr. D'Angelo casted claimant's right hand to prevent its 
 
            use.  Ms. Schmitt seemed to infer that these two occasions 
 
            of the job aggravated claimant's condition.
 
            
 
                 Sherri Wilson is defendant's current workers' 
 
            compensation coordinator beginning in September 1986.  Her 
 
            duties include coordinating the care for injured people 
 
            between the plant and corporate level.  She said claimant 
 
            never returned to see her personally after leaving IBP even 
 
            though they are free to do so.  She related she coordinated 
 
            the medical care for the claimant as to various doctors.  
 
            She indicated that Dr. D'Angelo gave claimant a 7 percent 
 
            permanent impairment rating, Dr. Neiman a 3 percent body as 
 
            a whole rating which she indicated was a 5 percent right 
 
            upper extremity impairment, and that Dr. Atwell gave a zero 
 
            rating.  She acknowledged Dr. Atwell is not a neurosurgeon 
 
            or an orthopedic surgeon but is only a general practitioner.  
 
            She admitted that because claimant never saw her personally, 
 
            she isn't saying claimant did something wrong.  She denied 
 
            special arrangements need to be made to see her and yet 
 
            admitted one must be cleared by the guard in order to enter 
 
            the company after they have left the employment.
 
            
 
                 Dr. D'Angelo testified through his deposition on May 1, 
 
            1991, that he first saw claimant on October 7, 1988, upon 
 
            referral from a Dr. Brian Masonholder.  He said that with 
 
            his examination and history taken and with reviews of prior 
 
            studies, claimant's condition was consistent with a carpal 
 
            tunnel on the left and right.
 
            
 
                 On February 1, 1988, he gave claimant a steroid 
 
            injection in the right wrist and applied a cast and claimant 
 
            was to return in two weeks.
 
            
 
                 Dr. D'Angelo opined claimant's carpal tunnel syndrome 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            is causally connected to claimant's work at IBP and further 
 
            opined claimant had a 7 percent impairment to her upper 
 
            extremity (Jt. Ex. L, p. 9).  He indicated claimant's 
 
            prognosis was fairly good.  He recommended surgery on 
 
            several occasions but said claimant declined.  When asked if 
 
            surgical intervention would improve claimant's condition, 
 
            the doctor said most often it does which would affect her 
 
            permanent impairment rating.  He said it might lower that 
 
            rating (Jt. Ex. L, p. 17) but he could not state with any 
 
            degree of medical certainty what amount of rating change 
 
            would occur.  He said an average person who is operated on 
 
            results in symptoms of numbness and tingling going away and 
 
            function of the hand improves (Jt. Ex. L, p. 18).  The 
 
            doctor did not put any restrictions on claimant at the July 
 
            31, 1989 visit as she had quit her job by then, so the issue 
 
            of permanent restrictions did not arise.  He did say, on 
 
            cross-examination, that if claimant was working and based on 
 
            her July 27, 1989 complaints, she would need to be on work 
 
            restrictions if she could not tolerate her symptoms (Jt. Ex. 
 
            L, p. 11).
 
            
 
                 Basically, the doctor indicated that repetitive action 
 
            of pulling, grasping and lifting would aggravate her 
 
            condition.  The doctor affirmed his opinion that his rating 
 
            of claimant was to the right upper extremity (Jt. Ex. 11, p. 
 
            15).  The doctor acknowledged that claimant's grip strength 
 
            and squeeze tests on October 12, 1988 and September 27, 1989 
 
            didn't indicate much change in claimant's right arm (Jt. Ex. 
 
            L, p. 20).
 
            
 
                 Joint Exhibit B21, IBP's employee's record signed by R. 
 
            Stewart, R.N., Joint Exhibit B22, First Report signed by 
 
            Beth Rose, and Joint Exhibit B25, signed by Brian 
 
            Masonholder, M.D., indicate claimant incurred a repetitive 
 
            trauma on October 28, 1987.  Joint Exhibit B21-22 indicates 
 
            claimant was separating guts.
 
            
 
                 Joint Exhibit B27, signed by a doctor whose name is not 
 
            readable, restricted claimant on January 7, 1988, to one 
 
            handed duty with left hand.  It appears from other records, 
 
            particularly Joint Exhibit F5, that this particular doctor 
 
            was Dr. D'Angelo.  This was followed by defendant's nurse on 
 
            January 8, 1988 (Jt. Ex. B28) restricting claimant from 
 
            using her right hand on the job.  On July 6, 1988, Dr. 
 
            D'Angelo's report restricted claimant to "no repetitive use 
 
            bilateral hands and wrists." (Jt. Ex. B30).  It appears this 
 
            restriction still existed on October 12, 1988 (Jt. Ex. B31).
 
            
 
                 There is no contention by the claimant that she is 
 
            seeking benefits for anything other than her right upper 
 
            extremity.  The medical records involving her automobile 
 
            accident affirms her husband's testimony that that accident 
 
            in December in 1988 did not affect the parts of the body 
 
            involved in her alleged October 28, 1987 injury.  Joint 
 
            Exhibit C2 indicates that on February 21, 1989, there 
 
            appears to be nearly complete resolution of any injury from 
 
            her motor vehicle accident.
 
            
 
                 On May 8, 1989, Dr. Atwell, a general and vascular 
 
            surgeon, opined claimant has a zero permanent disability 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            rating.  The undersigned believes the doctor means 
 
            impairment as the deputy industrial commissioner determines 
 
            disability (Jt. Ex. D2).
 
            
 
                 On May 2, 1990, Dr. Neiman, a neurologist, indicated 
 
            historically claimant's right carpal tunnel is work related 
 
            (Jt. Ex. F2).  Although there was no oral evidence of 
 
            claimant being right or left handed, Joint Exhibits E2 and 
 
            F1 indicate claimant is right handed.  On May 24, 1990, Dr. 
 
            Neiman agreed with Dr. D'Angelo as to recommending surgery 
 
            (Jt. Ex. E4).  On June 24, 1990, Dr. Neiman opined claimant 
 
            had a 3 percent permanent partial disability (impairment) of 
 
            the whole person and added that claimant could probably get 
 
            well if she had a decompression on the right median nerve, 
 
            but claimant stated she did not wish to have surgery (Jt. 
 
            Ex. E5).  The undersigned finds the doctor, for workers' 
 
            compensation purposes, should not have converted claimant's 
 
            upper extremity impairment to a body as a whole.  It appears 
 
            from the parties' other evidence and statements and argument 
 
            of counsel that this 3 percent body as a whole is converted 
 
            from 5 percent permanent impairment to an upper extremity.
 
            
 
                 Joint Exhibit F1, dated January 7, 1988, reflects an 
 
            examination of Dr. D'Angelo, which again includes his 
 
            recommendations to claimant to have surgery.  Although he 
 
            could not guarantee that claimant would not have residue 
 
            symptoms, he did not think claimant would be put out of the 
 
            work force if she had surgery.  He assessed claimant as 
 
            having bilateral carpal tunnel syndrome more prevalent on 
 
            the right.  Dr. D'Angelo treated claimant until October 12, 
 
            1988, when he assessed claimant's situation again and 
 
            opined:
 
            
 
                    It is my opinion symptoms are basically 
 
                 unchanged over the last exam.  At this point in 
 
                 time I would assign an impairment rating.  I have 
 
                 nothing further to offer this individual.  I 
 
                 cannot predict if these symptoms will worsen or 
 
                 improve with time.  I cannot state if surgery will 
 
                 effectly [sic] control all of her
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            symptoms, simply halt further progression symptoms 
 
            or provide no relief at all.
 
            
 
            (Jt. Ex. F4)
 
            
 
                 On July 31, 1989, the doctor opined claimant had a 7 
 
            percent impairment to the right upper extremity based on the 
 
            AMA Guides (Jt. Ex. F8).
 
            
 
                 Although there may be questions as to how exactly the 
 
            October 28, 1987 date was picked over other possible dates 
 
            within that time frame, and looking at the medical records, 
 
            it appears that the medical personnel also earmarked this 
 
            October 28, 1987 date as the date of injury.  The 
 
            undersigned finds that claimant did incur an injury which 
 
            arose out of and in the course of her employment on October 
 
            28, 1987 and that the evidence is overwhelming as to this 
 
            finding.  It is further found that the greater weight of 
 
            medical evidence indicates claimant's carpal tunnel and 
 
            right upper extremity condition is causally connected to her 
 
            October 28, 1987 cumulative work injury.  The record is 
 
            overwhelming that claimant's symptoms not only increased 
 
            when she was performing her jobs at defendant, but that when 
 
            she was either removed from those jobs or did something 
 
            different, there would be either relief or the doctors 
 
            ordered her to have duties changed so that her condition 
 
            would not become worse.  There is no other evidence of any 
 
            cause causing claimant's complaints, carpal syndrome and arm 
 
            condition.
 
            
 
                 The parties are disputing whether claimant's injury is 
 
            to her arm or to her hand.  Normally, in a strict carpal 
 
            tunnel situation, and when surgery is performed, it usually 
 
            involves the hand or wrist and this agency has consistently 
 
            held that the wrist is part of the hand.  Claimant has not 
 
            had surgery even though it was recommended by two or more 
 
            doctors, two of them being specialists.   The medical 
 
            exhibits often refer to claimant's arm.  The doctors refer 
 
            to claimant's upper extremity.  There is basically no 
 
            reference to claimant's particular right hand.  Although 
 
            sometimes, rarely, if there is a hand injury, a doctor may 
 
            refer to an upper extremity but usually this is only 
 
            referred to when there is, in fact, an arm or shoulder 
 
            injury.  The undersigned believes the doctors are using the 
 
            word upper extremity because they believe claimant's injury 
 
            affected her arm also.  The undersigned finds that 
 
            claimant's hand and arm were affected by her work-related 
 
            injury of October 28, 1987.
 
            
 
                 Another issue was the extent of claimant's permanent 
 
            disability.  Defendant argues that there is a zero percent, 
 
            5 percent and 7 percent permanent impairment rating and, 
 
            therefore, there should be something similar to a quotient 
 
            rating or adding together all the impairments and dividing 
 
            them by 3.  The undersigned disagrees that this is the 
 
            agency precedent and that this is not the procedure the 
 
            undersigned uses.  The general practitioner, Dr. Atwell, of 
 
            which defendant desires to rely, issued a zero rating.  Two 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            other specialists had ratings of 5 percent and 7 percent.  
 
            The 5 percent was by a neurologist and the 7 percent was by 
 
            an orthopedist.  The undersigned believes that the 
 
            impairment rating of Dr. D'Angelo is the most reliable based 
 
            on the facts of this case and the complaints and condition 
 
            of this claimant.  The undersigned finds that claimant 
 
            incurred a 7 percent permanent impairment to her right upper 
 
            extremity as a result of her October 28, 1987 work-related 
 
            injury.
 
            
 
                 The AMA Guides to which the specialists refer deal with 
 
            factors other than basically loss of use of a scheduled 
 
            member.  The facts are clear that claimant had the loss of 
 
            use of her right upper extremity as late as January 7, 1988 
 
            (Jt. Ex. B27), in which she was to use one hand only, 
 
            namely, her left.  On October 12, 1988 (Jt. Ex. B31), 
 
            claimant was to have no repetitive use of hands and wrists 
 
            because of her bilateral carpal tunnel syndrome diagnosis.  
 
            Claimant quit defendant's place of business on February 17, 
 
            1988.  Her contention being that she was unable to do the 
 
            work.  It seems like defendant was criticizing her as 
 
            possibly aggravating her condition by using, at least on two 
 
            occasions, her right hand and eventually it appears her 
 
            right hand was put in a sling or cast to prevent its use as 
 
            she was attempting to heal from her right carpal tunnel 
 
            syndrome condition.
 
            
 
                 It is understandable to the undersigned that, being 
 
            right handed working in the industry in which claimant was 
 
            working, there is an inclination to use your best or favored 
 
            hand to help you in a job where you are suddenly limited to 
 
            the use of one hand, that one hand being the hand or arm 
 
            that you were normally not relying upon as a favored hand.  
 
            This deputy does not believe claimant should be criticized.  
 
            She obviously was not attempting to hurt herself but was 
 
            trying to do her job.  Defendant contends this was a one 
 
            handed job.  It is obvious from the record that claimant was 
 
            also having problems with the left hand and arm and that 
 
            this one handed duty was increasing the aggravation to that 
 
            hand and arm.
 
            
 
                 There is no evidence that those restrictions were ever 
 
            lifted but it is also evident that since claimant quit, 
 
            there was no further reason to honor that situation as it 
 
            relates to her job.
 
            
 
                 What concerns the undersigned is claimant's refusal to 
 
            have surgery.  The undersigned realizes and it is clear from 
 
            the record that no doctor could guarantee success.  Carpal 
 
            tunnel syndrome surgery is a common surgery and this 
 
            agency's experience has been that there have been failures 
 
            or no improvement.  It has also been this agency's 
 
            experience that this common surgery has brought about a 
 
            successful result or relief or at least has not caused 
 
            increased problems.  The undersigned understands claimant's 
 
            fear of surgery but finds that in this situation the 
 
            claimant's fear of surgery and desire not to have a right 
 
            carpal tunnel surgery has resulted in the ability not to 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            determine for sure the true extent of the loss of use and 
 
            impairment to claimant's right upper extremity.  Claimant 
 
            has control over her body and has made the choice that she 
 
            does not desire surgery.  Likewise, the undersigned must 
 
            proceed on the basis that this may improve her situation and 
 
            result in greater use of her right arm and hand.  There is 
 
            no evidence that the impairment may be lessened but there 
 
            seems to be evidence that there would be on the law of 
 
            averages a greater use of the upper right extremity.
 
            
 
                 The parties stipulated that all medical bills have been 
 
            paid.  The undersigned finds that if, in fact, claimant 
 
            desires to have surgery, that surgery should be paid for by 
 
            defendant and that it would be in the best interest of the 
 
            claimant to seek medical intervention as recommendation by 
 
            two specialists, one a neurologist and the other an 
 
            orthopedic surgeon.
 
            
 
                 The undersigned finds that claimant has a 7 percent 
 
            permanent partial impairment to her right upper extremity 
 
            and that she is entitled to 17.50 weeks of permanent partial 
 
            disability benefits at the rate of $181.20 per week.
 
            
 
                 The parties' last dispute involves costs, particularly 
 
            the $20.00 of Dr. D'Angelo for a medical report and $15.50 
 
            for the Muscatine Health Center.  These were incurred by an 
 
            attorney that claimant had prior to her current attorney.  
 
            The parties did not know exactly if these expenses were for 
 
            copies or in the case of $20.00, an actual medical report.  
 
            As provided by the law, costs can include two medical 
 
            reports.  It is therefore found that the medical report of 
 
            Dr. D'Angelo in the amount of $20.00 should be reimbursed to 
 
            Attorney Robert H. DeKock.  It is further found that the 
 
            $15.50 appears to be costs for copies of records, which 
 
            costs the undersigned finds are the costs of doing business 
 
            and are not reimbursable as costs under the law.  This does 
 
            not mean that the claimant should not reimburse her former 
 
            attorney for his out-of-pocket expenses but that is between 
 
            her and her former attorney.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on October 28, 
 
            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). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 28, 
 
            1987 is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 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.
 
            
 
                 Iowa Code section 85.34(2) provides, in part:
 
            
 
                 For all cases of permanent partial disability 
 
                 compensation shall be paid as follows:
 
            
 
                    ....
 
            
 
                    (m)  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.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a cumulative injury to her right 
 
            upper extremity that arose out of and in the course of her 
 
            employment causing claimant to incur a 7 percent permanent 
 
            partial impairment to her right upper extremity, entitling 
 
            her to 17.50 weeks of permanent disability benefits at the 
 
            rate of $181.20.
 
            
 
                 Claimant has refused to have surgery but that if, in 
 
            fact, she decides to have surgery, the costs of claimant's 
 
            medical bills incurred for the same shall be paid for by 
 
            defendant.
 
            
 
                 Twenty dollars referred to as Part B of claimant's 
 
            affidavit of costs for Dr. D'Angelo's medical report shall 
 
            be paid as part of the costs of this action.
 
            
 
                 The $15.50 for the Muscatine Health Center shall not be 
 
            considered part of the costs in this case.
 
            
 
                 All other costs on claimant's affidavit of costs shall 
 
            be paid as provided in the order herein.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay the claimant seventeen point 
 
            fifty (17.50) weeks of permanent partial disability benefits 
 
            at the stipulated rate of one hundred eight-one and 20/100 
 
            dollars ($181.20) per week beginning July 31, 1989, which is 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            based on the permanent impairment rating of seven percent 
 
            (7%) by Dr. D'Angelo.
 
            
 
                 That defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The record shows that 
 
            defendant has not paid any weekly benefits herein.
 
            
 
                 That defendant shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33, including the interpreter's 
 
            expense.
 
            
 
                 That defendant shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr William J Bribriesco
 
            Attorney at Law
 
            2407 18th St  Ste 202
 
            Bettendorf IA 52722
 
            
 
            Ms Marie L Welsh
 
            Attorney at Law
 
            P O Box 515  Dept #41
 
            Dakota City NE 68731
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1100; 5-1108.50
 
                      1803
 
                      Filed July 3, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ELFEGA MENDOZA,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 923666
 
            IBP,                          :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Found claimant's injury arose out of and in the course of 
 
            claimant's employment.
 
            
 
            5-1108.50
 
            Found claimant's impairment causally connected to claimant's 
 
            work injury.
 
            
 
            1803
 
            Claimant had permanent impairment ratings of 0, 5 and 7 
 
            percent of her right upper extremity.  Found 7 percent 
 
            permanent impairment.  Deputy accepted the orthopedic 
 
            specialist's rating as more accurate under evidence of case.  
 
            Found right arm and not just right hand as scheduled member 
 
            affected based on the doctors' reference to upper extremity 
 
            and not hand.  It appears doctors meant more than the hand.
 
            Claimant was fearful of surgery and refused surgery, but 
 
            doctors would not guarantee successful surgery or opined 
 
            rating if surgery was done.