before the iowa industrial commissioner
 
         _________________________________________________________________
 
                     :
 
         REX RHOTEN,      :
 
                     :
 
              Claimant,   :
 
                     :
 
         vs.         :
 
                     :        File No. 923968
 
         PAXTON & VIERLING STEEL CO.,    :
 
                     :          A P P E A L
 
              Employer,   :
 
                     :        D E C I S I O N
 
         and         :
 
                     :
 
         LIBERTY MUTUAL INSURANCE   :
 
         COMPANY,    :
 
                     :
 
              Insurance Carrier,    :
 
              Defendants.      :
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         October 28, 1992 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of February, 1993.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert Laubenthal
 
         Attorney at Law
 
         P.O. Box 249
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. James E. Thorn
 
         Attorney at Law
 
         P.O. Box 398
 
         Council Bluffs, Iowa 51502
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803
 
            Filed February 22, 1993
 
            Byron K. Orton
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            REX RHOTEN,      :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :        File No. 923968
 
            PAXTON & VIERLING STEEL CO.,    :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            LIBERTY MUTUAL INSURANCE   :
 
            COMPANY,    :
 
                        :
 
                 Insurance Carrier,    :
 
                 Defendants.      :
 
            ____________________________________________________________
 
            _____
 
            
 
            1803
 
            This is a non-precedential determination of the amount of 
 
            industrial disability and permanent partial disability 
 
            benefits.  
 
            Claimant age 45, high school education, 27 year career 
 
            employee of employer who performed heavy lifting most of 
 
            that time, injured his back lifting, had a 
 
            semihemilaminectomy performed on his lumbar spine, received 
 
            a 10 percent permanent functional impairment rating, and 
 
            restrictions of (a) no lifting over 25 pounds, (b) no 
 
            repetitive bending or twisting and (c) standing and sitting 
 
            limited to two hours at a time, and was foreclosed from all 
 
            prior employments that he had performed, but had been 
 
            accommodated by employer so that he was promoted to 
 
            supervisor and had not sustained any actual loss of earnings 
 
            was determined to be 20 percent industrially disabled and 
 
            entitled to 100 weeks of permanent partial disability 
 
            benefits.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                      
 
            REX RHOTEN,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 923968
 
            PAXTON & VIERLING STEEL CO.,  
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL INSURANCE 
 
             COMPANY,                     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                                  INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Rex 
 
            Rhoten, claimant, against Paxton & Vierling Steel Co., 
 
            employer and Liberty Mutual Insurance Company, insurance 
 
            carrier, defendants for benefits as a result of an injury 
 
            that occurred on June 16, 1989.  A hearing was held in 
 
            Council Bluffs, Iowa on October 20, 1992, and the case was 
 
            fully submitted at the close of the hearing.  Claimant was 
 
            represented by Robert Laubenthal.  Defendants were 
 
            represented by James E. Thorn.  The record consists of 
 
            testimony of Rex Rhoten, claimant, Lynn Farris, co-employee, 
 
            and joint exhibits 1 through 18.  
 
            
 
                                   ISSUES
 
            
 
                 The sole issue submitted for determination is the 
 
            amount of industrial disability which claimant has 
 
            sustained, if any, and the amount of permanent partial 
 
            disability benefits to which he is entitled, if any.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 It is determined that claimant has sustained a 20 
 
            percent industrial disability to the body as a whole and 
 
            that claimant is entitled to 100 weeks of permanent partial 
 
            disability benefits.  
 
            
 
                 Claimant was 45-years-old at the time of this injury 
 
            and 48-years-old at the time of the hearing.  Thus, this 
 
            injury occurred when claimant was approaching his peak 
 
            earnings in his employment lifetime.  Therefore claimant's 
 
            industrial disability is significantly increased on account 
 
            of his age.  Moreover, at the time of this injury claimant 
 
            was able to work a great deal of overtime and claimant took 
 
            advantage of every single opportunity to perform overtime 
 
            and receive overtime pay.  Becke v. Turner-Busch, Inc., 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            34 (1979).  Walton v. B & H Tank Corp., II Iowa Industrial 
 
            Commissioner Report 426 (1981).  McCoy v. Donaldson Company, 
 
            Inc., file numbers 782670 & 805200 (App. Dec. April 28, 
 
            1989).
 
            
 
                 Claimant has a high school education.  This is the bare 
 
            minimum for finding employment in the competitive labor 
 
            market and also places claimant at a disadvantage with other 
 
            job applicants who either have college degrees, community 
 
            college degrees, one or more years of college training or 
 
            certificates in various employment skills.  
 
            
 
                 Claimant is a hard-working and intelligent individual 
 
            (Transcript, pp. 16, 17 & 19).  He has demonstrated his 
 
            adaptability to learn several skills for employer.  He 
 
            started as a general laborer, became a machine operator and 
 
            learned how to shear, break and roll metal, learned the 
 
            duties of quality control, functioned as a side loader 
 
            operator for 17 years, and at the time of the hearing had 
 
            been promoted to a warehouse supervisor (Tran., pp. 30-35).  
 
            Thus, claimant has demonstrated that he would be an 
 
            excellent candidate for retraining.  Claimant testified that 
 
            employer has three major lines of work endeavor (1) the 
 
            warehouse, (2) the machine shop and (3) the fabrication 
 
            department.  Claimant testified that he has worked in all 
 
            three major endeavors of work provided by employer.  Conrad 
 
            v. Marquette School, Inc., IV Iowa Industrial Commissioner 
 
            Report 74, 89 (1984).
 
            
 
                 Claimant testified that he was in excellent physical 
 
            health at the time of this injury.  He denied and there was 
 
            no medical evidence of any prior serious injuries of any 
 
            kind.  All of his jobs for employer were physically 
 
            demanding and required him to either lift, push, pull, 
 
            shove, or roll pieces of steel weighing anywhere between 10 
 
            pounds and 100 pounds.  These pieces of steel ranged in 
 
            length from 12 feet to 24 feet but most of them were 
 
            approximately 20 feet long.  They ranged in thickness from 
 
            1/8 of an inch to 8 inches.  Claimant admitted to occasional 
 
            back strain prior to this injury which normally did not 
 
            require medical treatment or any loss of time from work 
 
            (Tran., p. 73).  
 
            
 
                 After graduation from high school claimant served in 
 
            the United States Navy for approximately four years.  
 
            Claimant then started to work for employer at age 21 in 
 
            1965.  Claimant is a career employee of employer with an 
 
            excellent employment record (Tran., p. 93).  This employment 
 
            has been his only employment during his entire adult working 
 
            lifetime.  
 
            
 
                 Claimant injured his low back while bending over 
 
            reaching for bars out of stock pans.  He testified that he 
 
            knew he pulled something in his back at that time (Tran., 
 
            pp. 39 & 40).  The injury was reported about two weeks later 
 
            when claimant was no longer able to work due to pain in his 
 
            back and in his legs.  James Faylor, M.D. diagnosed lumbar 
 
            strain and possible disc rupture on July 5, 1989, and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant was taken off work at that time (Exhibit 2).  Dr. 
 
            Faylor referred claimant to Charles Taylon, M.D., an 
 
            orthopedic surgeon, who first saw claimant on July 6, 1989.  
 
            Dr. Taylon found the straight leg raising test was positive 
 
            at 30 degrees bilaterally and was limited by back pain.  He 
 
            ordered a lumbar myelogram and a post myelogram CAT scan 
 
            (Ex. 3).  
 
            
 
                 Claimant was also examined by Frank P. LaMarte, M.D., 
 
            on July 19, 1989, who diagnosed lumbar disc syndrome and 
 
            stated that claimant was a surgical candidate in his opinion 
 
            (Ex. 5, pp. 1 & 2).  On July 26, 1989, Dr. Taylon diagnosed 
 
            a herniated disc at L4-L5 on the right side and performed a 
 
            right L4-5 semihemilaminectomy and discectomy (Ex. 6, pp. 
 
            1-4).  Dr. Taylon found and removed a free fragment of disc 
 
            laying over the L4 vertebral body (Ex. 6, p. 4; Ex. 7).  
 
            
 
                 In October and November of 1989 claimant still 
 
            complained of increasing back and bilateral lower extremity 
 
            pain (Ex. 10 & 11).  Claimant was off work completely from 
 
            July 5, 1989 through November 19, 1989 at which time he 
 
            started back to work four hours a day and three days a week 
 
            (Ex. 11 & 12).  This was increased to nine hours a day three 
 
            days a week on March 5, 1990 (Ex. 13).  On March 20, 1990, 
 
            Dr. Tylon reported that an MRI confirmed only post operative 
 
            changes and that no new nerve compression was visualized 
 
            that could be causing claimant's continuing low back and 
 
            bilateral leg pain (Ex. 14).  Claimant returned to work full 
 
            time on May 20, 1990.  
 
            
 
                 On July 3, 1990, Dr. Taylon reported that claimant had 
 
            sustained a 10 percent permanent impairment to the body as a 
 
            whole.  He was permanently restricted from lifting 25 pounds 
 
            and from repetitive bending or twisting on a permanent 
 
            basis.  He added that standing should be limited to two 
 
            hours at a time with a short rest period (Ex. 17).  Dr. 
 
            Taylon was the primary treating and operating physician and 
 
            his impairment rating and restrictions are not controverted 
 
            by any other medical evidence.
 
            
 
                 On September 15, 1992, James T. Rogers, a certified 
 
            professional counselor, reported that he evaluated claimant 
 
            on August 5, 1992.  After examining the medical evidence and 
 
            interviewing claimant Rogers determined that claimant had 
 
            lost access to approximately 35 percent to all jobs to which 
 
            he had access prior to the injury (Ex. 18).  Rogers further 
 
            estimated that if claimant would lose his present job with 
 
            employer that he would probably most likely be able to earn 
 
            $4.25 per hour to $8 per hour in the competitive employment 
 
            market (Ex. 18, p. 6).
 
            
 
                 However, claimant did return to work for employer in 
 
            the quality control department and another individual was 
 
            assigned to perform any lifting or repetitive work that 
 
            violated Dr. Taylon's restrictions.  Claimant testified that 
 
            nevertheless he still occasionally violated the lifting 
 
            restriction in some degree in order to perform his job and 
 
            when he did so he suffered a recurrence of pain, numbness 
 
            and tingling in his legs as a result of it (Tran., p. 47).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Employer commendably asked claimant what job he could 
 
            perform, in his opinion.  Claimant thought he could perform 
 
            the job of warehouse supervisor and employer promoted him 
 
            from an hourly rate employee to a salaried employee in a 
 
            supervisory capacity where he could work within the 
 
            restrictions placed by Dr. Taylon.  Claimant earns $30,000 
 
            as the warehouse supervisor.  Claimant testified that also 
 
            earned $30,000 as an hourly employee because he never missed 
 
            a single opportunity to work overtime on a daily basis and 
 
            also on Saturdays and Sundays when it was available.  
 
            Claimant contended that he would be earning more money if he 
 
            had the opportunity to work overtime.  This contention, 
 
            however, was not documented nor otherwise proved by a 
 
            preponderance of the evidence.
 
            
 
                 Claimant testified that all employees get a bonus and 
 
            as far as he could determine his bonus remained the same.  
 
            Claimant and his co-employee Farris both testified that 
 
            after the injury employer instituted split shifts with the 
 
            intention of reducing the amount of overtime which the 
 
            employees were receiving.  This program of split shifts was 
 
            partially effective but Farris testified that he still works 
 
            one hour of overtime every day and that it is sometimes 
 
            available on Saturday and Sunday (Tran., p. 26-28).  
 
            Claimant testified that many employees still are able to 
 
            work and receive a large amount of overtime pay.  
 
            
 
                 Farris testified that he has had two raises and 
 
            claimant testified that he had only received one raise 
 
            (Tran., p. 28). Claimant related that some supervisors 
 
            received raises and some were passed over.  When claimant 
 
            was told that he was passed over the owner also asked him 
 
            about his injury and claimant formed the conclusion that he 
 
            was passed over because of the injury (Tran., pp. 87 & 88).  
 
            There is no evidence to support the proposition that 
 
            claimant was passed over for a raise because of this injury 
 
            other than claimant's testimony.  
 
            
 
                 Claimant testified that his job requires a lot of 
 
            walking.  The plant was 70 feet by 1,000 feet and a 65 foot 
 
            by 400 foot addition has been added to it (Tran., p. 48).  
 
            Claimant related that when he walks the length of the plant 
 
            extensively it feels like his legs are going to fall off and 
 
            it causes pain all the way home in the car (Tran., p. 49).  
 
            Claimant commutes to and from work a distance of 
 
            approximately 43 miles.  Claimant further testified that it 
 
            is difficult for him to sit for any extended period of time.  
 
            
 
                 Claimant further testified that he had a flare-up of 
 
            his back pain in the spring of 1992.  When he woke up he 
 
            felt like he could not get out of bed (Tran., p. 86).  
 
            Eventually he went to the doctor that day.  Claimant fears 
 
            that his back will flare-up again to the extent that he 
 
            might not be able to perform his job as warehouse 
 
            supervisor.  At the time of the follow-up MRI in March of 
 
            1990, Dr. Taylon said that surgical intervention could not 
 
            be ruled out, however it was not a major consideration at 
 
            that time (Ex. 14).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Claimant expressed a fear that his job is in jeopardy 
 
            with employer because he knew of other employees who were 
 
            terminated after they became injured.  Farris also knew of 
 
            employees that had been terminated after they were injured 
 
            (Tran., pp. 21-23).  Both men also knew of employees who had 
 
            been injured and were accommodated by employer and were able 
 
            to continue their employment with employer.  Claimant 
 
            testified that he very much appreciated the accommodation 
 
            that employer had made for him and that he was grateful for 
 
            the opportunity to be able to continue to work.
 
            
 
                 It is obvious from Dr. Taylon's restrictions of (1) no 
 
            lifting over 25 pounds and (2) no repetitive bending or 
 
            twisting and (3) that standing and sitting should be limited 
 
            to two hours at a time with a short period of rest, that 
 
            claimant is foreclosed from his prior jobs as a general 
 
            laborer, a machine operator, a quality control tester and a 
 
            side loader operator because all of these jobs required 
 
            heavy physical labor and lifting more than 25 pounds.  Even 
 
            though claimant has not demonstrated an actual loss of 
 
            earnings and employer contends that claimant's job is 
 
            secure, never-the-less, a whole range of jobs in the open 
 
            employment market have been foreclosed to claimant due to 
 
            this injury (Tran., p. 18,20).  Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218, 220 (App. Dec. January 30, 1979).  Rohrberg v. Griffen 
 
            Pipe Products Co., I Iowa Industrial Commissioner Report 282 
 
            (1984).  Prior to this injury claimant had no physical 
 
            limitations whatsoever.  He was capable of heavy labor which 
 
            is defined as lifting more than 100 pounds occasionally and 
 
            as much as 50 pounds repetitively.  Claimant lived a 
 
            vigorous work life picking up the end of parcels of iron or 
 
            steel that weighed as much as 500 pounds.  He routinely 
 
            lifted 50 to 100 pounds (Tran., p. 17).  Claimant worked 12 
 
            and 14 hours a day on many occasions.  Claimant normally 
 
            worked one hour overtime every day and all the Saturday and 
 
            Sunday overtime which was available.  Claimant is now 
 
            limited to light or medium work physically.  His only 
 
            transferable skill would be some management skills.  
 
            
 
                 Rogers testified that claimant could only earn between 
 
            $4 and $8 per hour in the competitive employment market.  If 
 
            he lost his employment with this employer with an annual 
 
            salary of $30,000 this computes out to approximately $15 per 
 
            hour working eight hours a day and 40 hours a week (Tran., 
 
            PP. 53 & 54).  However claimant works more than that.  
 
            Claimant testified that he works approximately 54 hours per 
 
            week.  Using $15 per hour as a base (Tran., p. 15), if 
 
            claimant's hourly rate were reduced to $8 per hour this 
 
            would constitute a $7 per hour loss which calculates out to 
 
            a 46 percent loss of earnings.  Again using $15 per hour as 
 
            a base, if claimant were reemployed at $4 per hour, this 
 
            constitutes an $11 per hour loss and calculates out to a 73 
 
            percent loss of earnings.  Thus, the opportunity that 
 
            employer has afforded the employee to continue to work at 
 
            $30,000 a year materially and substantially reduces 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            claimant's potential loss of earning capacity.  If claimant 
 
            should lose his employment then employer's liability for 
 
            loss of earning capacity would be substantially increased.  
 
            
 
                 If claimant should lose his employment with employer he 
 
            would not be afforded the same accommodation and job 
 
            modification privileges that this employer has extended to 
 
            him.  This employer's job accommodation would not transfer 
 
            the competitive labor market as a whole.  Hartwig v. Bishop 
 
            Implement Company, IV Iowa Industrial Commissioner Report, 
 
            218, 220 (App. Dec. June 28, 1984).  Claimant would not find 
 
            new or different employers as accommodating.  Todd v. 
 
            Department of General Services, Buildings and Grounds, IV 
 
            Industrial Commissioner Report 373 (1983).
 
            
 
                 Wherefore, based upon (1) all of the evidence 
 
            introduced in this case, (2) in particular the foregoing 
 
            evidence, (3) considering all the factors used to determine 
 
            industrial disability, Peterson v. Truck Haven Cafe, Inc., 
 
            vol. 1, no. 3 State of Iowa Industrial Commissioner 
 
            Decisions 654, 658 (App. Dec. February 28, 1985), 
 
            Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa 
 
            Industrial Commissioner Decisions 529 (App. Dec. March 26, 
 
            1985); and (4) applying agency expertise [Iowa 
 
            Administrative Procedure Act 17A.14(5)].  It is determined 
 
            that claimant has sustained a 20 percent industrial 
 
            disability to the body as a whole and is entitled to 100 
 
            weeks of permanent partial disability benefits.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law these conclusions of law are made.
 
            
 
                 That claimant has sustained the burden of proof by a 
 
            preponderance of the evidence that the injury of June 16, 
 
            1989, was the cause of the disability on which he now bases 
 
            claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
            867 (1965).  Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 
 
            N.W.2d 607 (1945).
 
            
 
                 That claimant has sustained a 20 percent industrial 
 
            disability to the body as a whole and is entitled to 100 
 
            weeks of permanent disability benefits.  Iowa Code section 
 
            85.34(2)(u).
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant one hundred (100) weeks 
 
            of permanent partial disability benefits at the stipulated 
 
            rate of three hundred thirty-five and 76/100 dollars 
 
            ($335.76) per week in the total amount of thirty-three 
 
            thousand five hundred seventy-six dollars ($33,576) 
 
            commencing on May 21, 1990, as stipulated to by the parties.  
 
            
 
                 That defendants are entitled to a credit for fifty-two 
 
            (52) weeks of permanent partial disability benefits paid to 
 
            claimant at the rate of three hundred thirty-five and 76/100 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            dollars ($335.76) per week in the total amount of seventeen 
 
            thousand four hundred fifty-nine and 52/100 dollars 
 
            ($17,459.52) which benefits were paid to claimant prior to 
 
            hearing.
 
            
 
                 That all of these benefits are to be paid in a lump 
 
            sum.  
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That the costs of this action including the cost of the 
 
            attendance of the court reporter at hearing and the 
 
            transcript of hearing are charged to defendants pursuant to 
 
            rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.  
 
            Further, that defendants pay to claimant costs in the total 
 
            amount of two hundred sixty-five dollars ($265), which were 
 
            incurred as follows (1) filing fee paid to the industrial 
 
            commissioner sixty-five dollars ($65), (2) fee paid to Dr. 
 
            Taylon's office for medical reports fifty dollars ($50), and 
 
            (3) expert witness fee of James T. Rogers in the amount of 
 
            one hundred fifty dollars ($150) of his total charges in the 
 
            amount of three hundred eighty-five dollars ($385).  
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency.
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert Laubenthal
 
            Attorney at Law
 
            35 Main Place
 
            P.o. Box 249
 
            Council Bluffs, Ia  51502
 
            
 
            Mr. James E. Thorn
 
            Attorney at Law
 
            310 Kanesville Blvd.
 
            P.O. Box 398
 
            Council Bluffs, IA  51502
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                           1803
 
                                           Filed October 28, 1992
 
                                           Walter M. McManus, Jr.  
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            REX RHOTEN,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 923968
 
            PAXTON & VIERLING STEEL CO.,  
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL INSURANCE 
 
             COMPANY,                     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1803
 
            
 
            This is a non-precedential determination of the amount of 
 
            industrial disability and permanent partial disability 
 
            benefits.  
 
            Claimant age 45, high school education, 27 year career 
 
            employee of employer who performed heavy lifting most of 
 
            that time, injured his back lifting, had a 
 
            semihemilaminectomy performed on his lumbar spine, received 
 
            a 10 percent permanent functional impairment rating, and 
 
            restrictions of (a) no lifting over 25 pounds, (b) no 
 
            repetitive bending or twisting and (c) standing and sitting 
 
            limited to two hours at a time, and was foreclosed from all 
 
            prior employments that he had performed, but had been 
 
            accommodated by employer so that he was promoted to 
 
            supervisor and had not sustained any actual loss of earnings 
 
            was determined to be 20 percent industrially disabled and 
 
            entitled to 100 weeks of permanent partial disability 
 
            benefits.
 
            
 
 
 
 
 
 
 
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
NANCY LAING,     
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                 File Nos. 924438/1002210
 
STAFF-TEMPS,     
 
                                      A P P E A L
 
     Employer,   
 
                                    D E C I S I O N
 
and         
 
            
 
LIBERTY MUTUAL INSURANCE   
 
COMPANY,    
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
The record, including the transcript of the hearing before the deputy 
 
and all exhibits admitted into the record, has been reviewed de novo on 
 
appeal.  The decision of the deputy filed October 28, 1994 is affirmed 
 
and is adopted as the final agency action in this case.
 
 
 
Defendants shall pay the costs of the appeal, including the preparation 
 
of the hearing transcript.
 
 
 
Signed and filed this ____ day of February, 1995.      
 
                                ________________________________                 
 
                                BYRON K. ORTON           
 
                                INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Steven C. Jayne
 
Attorney At Law
 
5835 Grand Ave., Ste 201
 
Des Moines, Iowa 50312
 
     
 
Mr. Joseph S. Cortese II
 
Attorney at Law
 
500 Liberty Bldg.
 
Des Moines, Iowa 50309
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                1801; 1802; 1803;                                
 
                                1803.1; 2500
 
                                Filed February 28, 1995
 
                                Byron K. Orton
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
          
 
NANCY LAING,  
 
          
 
     Claimant, 
 
          
 
vs.                               File Nos. 924438
 
                                           1002210
 
STAFF-TEMPS,  
 
                                    A P P E A L
 
     Employer, 
 
                                  D E C I S I O N
 
and       
 
          
 
LIBERTY MUTUAL INSURANCE     
 
COMPANY,  
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
 
 
1801; 1802; 1803; 1803.1; 2500
 
Claimant sustained a bilateral carpal tunnel work injury.  Subsequent 
 
to the work injury, claimant became depressed.  She was treated with 
 
anti-depressants.  Two psychiatrists opined there was a nexus between 
 
her carpal tunnel injury and her depression.  The psychiatrists for 
 
both claimant and defendants opined that prescription medication was 
 
not adequate treatment for claimant.  They opined that the medications 
 
should be coupled with psychotherapy in order to see a vast improvement 
 
in claimant's condition.  Defendants, as of the date of the hearing, 
 
had not provided the psychotherapy, despite the opinion of their 
 
physician.
 
 
 
HELD:  The deputy industrial commissioner bifurcated the issue of 
 
permanency since claimant had not reached maximum medical improvement.  
 
Claimant was entitled to a running award with respect to her award for 
 
weekly benefits.  Benefits were awarded from the date of the hearing 
 
and for the duration of her disability or until such time as it has 
 
been determined that claimant has reached maximum medical improvement.
 
The issue of permanency benefits is bifurcated until a later point in 
 
time.
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         NANCY LAING,                  :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :         File Nos. 924438
 
                                       :                  1002210
 
         STAFF-TEMPS,                  :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         LIBERTY MUTUAL INSURANCE      :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
                            STATEMENT OF THE CASE
 
         
 
              These are proceedings in arbitration upon the petition of 
 
         claimant, Nancy Laing, against her former employer, Staff Temps, 
 
         and its insurance carrier, Liberty Mutual Insurance Company, 
 
         defendants.  The cases were consolidated and they were heard on 
 
         March 10, 1994.  The record consists of the testimony of 
 
         claimant.  The record is also comprised of the testimony of Roger 
 
         Marquardt, vocational rehabilitation expert witness who was 
 
         retained by claimant, and the testimony of Barbara Chaldy, 
 
         vocational rehabilitation expert witness who was retained by 
 
         defendants.  Finally, the record consists of joint exhibits 1-10, 
 
         claimant's exhibits 12-25, and defendants' exhibits A-D.
 
         
 
                                      ISSUES
 
         
 
              The issues to be determined are:  1) whether claimant 
 
         sustained a work-related injury on July 7, 1989 or July 29, 1989; 
 
         2) whether the alleged injury is a cause of permanent disability; 
 
         3) whether claimant is entitled to any healing period benefits as 
 
         a result of her work injury; and 4) whether claimant is entitled 
 
         to any permanent partial disability benefits, and if so, the 
 
         nature and extent of those permanent partial disability benefits.
 
         
 
                        
 
         
 
         
 
         Page   2
 
         
 
         
 
         
 
                               FINDINGS OF FACT 
 
         
 
              The deputy, having heard the testimony and considered all of 
 
         the evidence, finds:
 
         
 
              Claimant is 48 years old.  She is the divorced mother of one 
 
         adult child.  Claimant has had a sporadic work history.  During 
 
         the duration of her marriage claimant was employed outside of the 
 
         home on an intermittent basis.  Most of her jobs were unskilled 
 
         positions.  In 1984 claimant dissolved her marriage and, for 
 
         financial reasons, she again found herself in the work force.
 
         
 
              She commenced her employment with CDS where she was hired to 
 
         sort mail.  Claimant left the employ of CDS because she 
 
         determined she was in "a dead-end job."
 
         
 
              Next, claimant entered a three month training program.  The 
 
         program was sponsored by the Job Training Partnership Act.  She 
 
         successfully completed a course in operating office machines.
 
         
 
              Following her training claimant worked for Ready Temp.  She 
 
         was hired as a temporary office worker for businesses in Des 
 
         Moines.
 
         
 
              In February of 1988, claimant commenced employment with the 
 
         current defendant-employer.  She performed basic clerical duties.  
 
         She worked as a receptionist and performed telephone work.  She 
 
         typed and she operated computers.  She also copied documents 
 
         using office copy machines.
 
         
 
              In February of 1989, claimant was assigned to perform duties 
 
         at Teleconnect.  She was required to process order forms.  The 
 
         processing necessitated continual use of the copier.  In order to 
 
         operate the copier, claimant lifted the lid of the machine with 
 
         her left hand, and she placed the order form on the machine with 
 
         her right hand.  Then claimant copied the document by pressing a 
 
         button with her right hand.  Claimant next lifted the lid of the 
 
         machine with her left hand, and she removed the document with her 
 
         right hand.  Claimant testified, the job required "lots of 
 
         pulling."
 
         
 
              Claimant testified that whenever she operated the copier, 
 
         she began to experience difficulties in both hands, arms, and 
 
         shoulders.  She indicated the symptoms worsened over time.  The 
 
         last day she worked was July 29, 1989.
 
         
 
              Claimant commenced medical treatment with Scott Neff, D.O.  
 
         The medical treatment began in August of 1989.  Dr. Neff 
 
         originally diagnosed claimant as having bilateral medial 
 
         epicondylitis (Joint Exhibit 1, p. 1).  He modified his diagnosis 
 
         to include possible thoracic outlet syndrome (Jt. Ex. 1, p. 3).
 
         
 
              In October of 1989, claimant saw Martin S. Rosenfeld, D.O.  
 
         He diagnosed claimant as having probable bilateral carpal tunnel 
 
         syndrome and probable thoracic outlet syndrome (Claimant's 
 
         Ex. 24).
 
         
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
              Dr. Neff then performed two carpal tunnel releases on the 
 
         right wrist and one carpal tunnel release on the left wrist.
 
         
 
              Several months later, Dr. Neff again modified his diagnosis.  
 
         He opined in his report of January 3, 1990:
 
         
 
              DIAGNOSIS:   1.  Possible thoracic outlet syndrome
 
                      2.  First metacarpal CMC joint                                  
 
         degenerative disease.
 
                      3.  Post traumatic sternoclavicular                             
 
         degenerative disease with abnormal                            
 
         bone scan.
 
                      4.  Acromioclavicular degenerative joint                        
 
         disease, right shoulder.
 
                      5.  Residual right and left carpal tunnel                       
 
         syndromes.
 
         
 
         (Jt. Ex. 1, p. 8)
 
         
 
              Dr. Neff also diagnosed claimant as having myofascial 
 
         soreness around the upper back area (Jt. Ex. 1, p. 8).
 
         
 
              Dr. Neff opined the following relative to the causes of 
 
         claimant's physical condition:
 
         
 
                 I believe that her carpal tunnel syndromes are 
 
              related to repetitive hand and wrist activity, and some 
 
              of this activity is in the workplace, and some of it is 
 
              at home.
 
         
 
                 I do not believe that degenerative changes in her 
 
              sternoclavicular joint, shoulders, or anywhere else 
 
              where it might exist is related to secretarial type 
 
              work.
 
         
 
                 Thoracic outlet syndrome typically occurs in people 
 
              who do repetitive shoulder and upper arm activity at 
 
              and above shoulder height, and I do not believe that 
 
              that has been her work activity, from what I know about 
 
              her previous job.
 
         
 
         (Jt. Ex. 1, p. 10)
 
         
 
              In February of 1990, Dr. Neff issued permanent restrictions 
 
         with respect to claimant's work activities.  The orthopedic 
 
         surgeon then restricted claimant as follows:
 
         
 
              She was having myofascial soreness in her upper back, 
 
              which is a chronic and ongoing and non-work related 
 
              problem, and I recommended that she be seen by Dr. 
 
              Rooney, a rheumatologist.
 
         
 
                 I told her that I did not believe that she needed 
 
              any further orthopaedic surgery, and I would estimate 
 
              that the healing period following carpal tunnel release 
 
              is a period of 8-12 weeks.
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
                 I have recommended that she return to sedentary type 
 
              office work, which did not involve lifting repetitively 
 
              of over 15 pounds, and a rating examination could be 
 
              performed of her carpal tunnel to properly document the 
 
              median nerve function.
 
         
 
                 In my opinion, she has no impairment with reference 
 
              to myofascial soreness in her upper back. 
 
         
 
                 Dr. Alex Matthews felt that this patient did not 
 
              have thoracic outlet syndrome, and consequently, she 
 
              should not have any impairment attributable to thoracic 
 
              outlet.
 
         
 
         (Jt. Ex. 1, p. 13)
 
         
 
              In May of 1990, Dr. Neff opined that an evaluation in Iowa 
 
         City would be advantageous for claimant.  Dr. Neff also opined 
 
         the following relative to claimant's return to work:
 
         
 
                 I would like to make arrangements for her to be seen 
 
              in Iowa City, and I do not believe that she is going to 
 
              be capable of returning to repetitive hand and wrist 
 
              activity, using a keyboard, 10-key, adding machine, and 
 
              so forth.
 
         
 
                 Alternative employment would be recommended.  
 
              Healing period following a revision carpal tunnel with 
 
              neurolysis is a minimum of 12 weeks, and more 
 
              typically, 4-5 months.
 
         
 
         (Jt. Ex. 1, p. 16)
 
         
 
              In July of 1990, Dr. Neff indicated:
 
         
 
                 Her symptoms have continued, and there is no 
 
              likelihood that they will quickly resolve.
 
         
 
                 I do not believe that she is capable of repetitive 
 
              hand and wrist activity, repetitive office work, nor is 
 
              she capable of any type of heavy activity.  She remains 
 
              under my care, and the duration of her symptoms is 
 
              uncertain.
 
         
 
         (Cl. Ex. 18)
 
         
 
              Claimant was also examined at the Mercy Hospital Arthritis 
 
         Center.  Lawrence J. Rettemaier, M.D., indicated the following 
 
         after he conducted an examination of claimant:
 
         
 
              IMPRESSION:
 
         
 
              1) Probable myofascial pain of the upper extremities.  
 
                 The patient has no evidence of systemic inflammatory 
 
                 arthritis or other connective tissue disease.  She 
 
                 does have some historical features and physical 
 
                 findings which may suggest thoracic outlet syndrome 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
                 although this certainly also would not represent a 
 
                 classic case.  Reflex sympathetic dystrophy 
 
                 certainly would be in the differential; however, she 
 
                 lacks the cardinal features of diffuse pain to 
 
                 palpation.  
 
         
 
         (Cl. Ex. 22, p. 3)
 
         
 
              Pursuant to Dr. Neff's request, Thomas W. Bower evaluated 
 
         claimant for purposes of making an impairment rating.  Mr. Bower 
 
         opined there was no permanent impairment (Jt. Ex. 2, p. 1).
 
         
 
              Alexander Matthews, M.D., examined claimant for purposes of 
 
         determining whether claimant had thoracic outlet syndrome.  Dr. 
 
         Matthews opined that claimant did not have the syndrome (Jt. 
 
         Ex. 3).
 
         
 
              Claimant also saw Donna J. Bahls, M.D., a specialist in 
 
         rehabilitation and physical medicine.  Dr. Bahls opined:
 
         
 
                 Assessment #1 - Bilateral arm pain.
 
         
 
                 Assessment #2 - Status post right carpal tunnel 
 
                 surgery times 2 and left carpal tunnel surgery times 
 
                 1.
 
         
 
                 The patient still has some dysesthesia type pain in 
 
              her hands, right greater than left.  The patient is 
 
              willing to try one of the anti-depressants to see if it 
 
              will decrease some of this dysesthesia.  She was given 
 
              a prescription for Doxepin 25 mg tablets to increase 
 
              over 1 week time to 100 mg at HS.  If she does not 
 
              tolerate this medication, she will call....
 
         
 
         (Jt. Ex. 4, p. 2)
 
         
 
              Claimant also sought an evaluation from Dr. Albright at 
 
         University of Iowa Hospitals and Clinics.  Dr. Albright noted in 
 
         his clinical report of July 9, 1990:
 
         
 
                 X-rays done today including flexion extension 
 
              lateral of the cerival [sic] spine and also oblique 
 
              show no significant pathology.  X-rays of her shoulders 
 
              done previously likewise reveal no pathology of 
 
              significance.
 
         
 
                 Impression:  Bilateral upper extremity pain of 
 
              unclear etiology.  It is unlikely that the disabling 
 
              pain which the patient experiences in her hands is 
 
              coming from either shoulder.  She does have evidence of 
 
              some biceps tendonitis on the right and also some 
 
              flexor tendonitis at the insertion of the flexor mass 
 
              into the medial epicondyle.  Of interest, sustained 
 
              flexion of her neck seems to corralate [sic] with the 
 
              discomfort that she has in her hands.  There is, 
 
              however, no evidence of instability or significant 
 
              osteophyte formation on x-ray.
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         (Jt. Ex. 5)
 
         
 
              Dr. Albright again examined claimant in a follow up 
 
         appointment.  The physician assessed claimant's condition as 
 
         follows:
 
         
 
                 Assessment:  Ill-defined bilateral upper extremity 
 
              pain with some suggestive symptoms of pain secondary to 
 
              brachial plexus traction or mild thoracic outlet 
 
              syndrome.
 
         
 
                 Plan:  At this time, patient will [sic] instructed 
 
              in shoulder shrug and rotator cuff strengthening 
 
              exercises.  We would recommend no further diagnostic 
 
              work-up or surgical intervention at this time or in the 
 
              future.
 
         
 
         (Jt. Ex. 5, p. 3)
 
         
 
              In March of 1991 claimant entered the Mercy Pain Clinic for 
 
         chronic pain in the upper extremities.  She was admitted per the 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         recommendation of James Blessman, M.D.  Claimant participated in 
 
         the program for a period of time.  However, she voluntarily 
 
         discontinued her participation in the program prior to its 
 
         completion (Jt. Ex. 7, p. 9).  The basis for claimant's 
 
         termination is that she could not arrive at the program by seven 
 
         o'clock a.m.
 
         
 
              In June of 1991, claimant sought a medical consultation from 
 
         Cynthia Barry, D.O., a family practice physician.  Dr. Barry 
 
         emphasized:
 
         
 
              Because of the chonicity [sic] of her pain, I have 
 
              elected to refrain from the use of narcative [sic] 
 
              analgesics, and employed numerous NSAIDS in attempts to 
 
              provide her with some relief.  I'm sorry to report that 
 
              these attempts have been unsuccessful.
 
         
 
                 As you know, there is a well documented organic 
 
              basis for Nancy's symptomatology.  The diagnostic 
 
              testing which includes an MRI of her spine demonstrated 
 
              degeneration and disease at multiple levels.
 
         
 
         (Jt. Ex. 8)
 
         
 
              Claimant returned to the University of Iowa at a later point 
 
         in time.  John C. VanGilder, M.D., a professor of neurology, 
 
         opined in his report of May 3, 1993:
 
         
 
                 In summary, I think Ms. Laing has carpopedal spasm, 
 
              of which the etiology is unclear.  I do not think she 
 
              has a muscle degenerative disease as she has had 
 
              multiple EMGs in the past and there is no evidence of 
 
              abnormal function at the neuro-muscular junction or in 
 
              recruitment of muscle fibers.  Other etiologies that 
 
              may be responsible for same include hypercalcemia, but 
 
              these have been normal in the past and there is no 
 
              evidence to suggest spinal cord tumor.
 
         
 
         (Jt. Ex. 5, p. 7)
 
         
 
              Claimant desired another opinion.  She was referred to Bruce 
 
         R. Kruger, M.D., of the Mayo Clinic.  Dr. Kruger examined 
 
         claimant for purposes of a neurologic consultation.  He opined 
 
         that:
 
         
 
                 The neurological examination was normal.
 
         
 
                 I thought that what component of her discomfort was 
 
              organic was periarthritic in nature, probably a 
 
              tendinitis or bursitis.  There may be some residual of 
 
              a mild carpal tunnel syndrome on the right, but it 
 
              certainly would not be severe enough to create any 
 
              significant impairment and I did not think that it 
 
              should be treated unless the EMG showed definite 
 
              abnormalities.
 
         
 
                 An EMG was normal.  A rheumatoid factor and 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
              sedimentation rate determinations were normal.  X-rays 
 
              of the right hand and wrist, right shoulder, and right 
 
              elbow were all unremarkable.  We reviewed the MRI of 
 
              the cervical and thoracic spine dated 3-13-91 and felt 
 
              that they showed minimal changes of cervical 
 
              spondylosis with a small bony ridge along the dorsal 
 
              aspect of the C5 interspace.  There was no good 
 
              evidence for disc herniation.  This of course is 
 
              perfectly compatible with her age and is not 
 
              necessarily an indication of anything symptomatic and 
 
              certainly could not be related to her present 
 
              complaints.  There does appear to be a tiny midline 
 
              disc protrusion at what appears to be the T7 level of 
 
              questionable significance.
 
         
 
                 In summary, I have no neurological basis for her 
 
              problems.  This should be reassuring in that we 
 
              certainly find nothing that can't improve with time.
 
         
 
         (Jt. Ex. 9)
 
         
 
              Claimant was next examined by William Koenig, Jr., M.D., a 
 
         psychiatrist.  He opined that claimant suffered from chronic pain 
 
         (Cl. Ex. 12, p. 28).  He also indicated that the chronic pain was 
 
         the result of fibrositis and that the fibrositis was accelerated 
 
         by claimant's duties in the workplace (Cl. Ex. 12, p. 16).  Dr. 
 
         Koenig also opined that her sleep disturbance was the result of 
 
         the fibrositis (Cl. Ex. 12, p. 19).
 
         
 
              In his deposition, Dr. Koenig also opined:
 
         
 
                 A.  Well, I tell all people that it should 
 
              eventually burn out.  In her situation, this has been 
 
              going on long enough that that makes it very difficult 
 
              to say how long she will be troubled and what she will 
 
              and will not be able to do.
 
         
 
                 Q.  So, really, you can't predict if and when the 
 
              disorder will resolve?
 
         
 
                 A.  That is correct.
 
         
 
         (Cl. Ex. 12, p. 25)
 
         
 
              Dr. Koenig recommended claimant for a comprehensive pain 
 
         management program.
 
         
 
              Claimant then sought a psychiatric examination from Hector 
 
         Cavallin, M.D., a board certified psychiatrist.  The evaluation 
 
         occurred on May 14, 1993 and claimant sought a medical 
 
         consultation for her chronic pain.  Dr. Cavallin opined the 
 
         following in his report:
 
         
 
              Her affect was depressed.  The depression is severe 
 
              manifested by chronic fatigue, low self esteem, 
 
              feelings of hopelessness, dysphoria and suicidal 
 
              ideation.  The depression is chronic and has responded 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
              only in a limited way to treatment with medication.  In 
 
              addition to the depression she appears to be quite 
 
              anxious.  She also suffers from a sleep disorder.
 
         
 
                 The patient did suffer from a carpal tunnel syndrome 
 
              in both hands as medically documented.  In spite of 
 
              having surgery three times, the carpal tunnel syndrome 
 
              deteriorated into a chronic pain of her upper 
 
              extremities.  The pain is severe and not responding to 
 
              the usual forms of treatment and eventually led her to 
 
              a major depressive disorder.  The depression was sever 
 
              [sic] to the extent that it restricted her activities 
 
              of daily living and she spends most of the time in bed.  
 
              The depression responded partially to treatment with 
 
              Prozac.  Even though Prozac alleviated her depression 
 
              some, it had no effect on the pain.  She believes that 
 
              the pain is increasing as time goes by.  The prognosis 
 
              is poor and I consider her totally and permanently 
 
              disabled.  In terms of the severity of the impairment, 
 
              she shows a marked restriction of activities of daily 
 
              living, an extreme difficulty in maintaining social 
 
              functioning and any attempt to engage in work like 
 
              activities would result in further deterioration of her 
 
              mental functioning.
 
         
 
         (Cl. Ex. 14, p. 2)
 
         
 
              In response to the opinion of Dr. Cavallin, defendants sent 
 
         claimant to a psychiatrist of their choice.  Defendants then 
 
         referred claimant to James L. Gallagher, M.D., another board 
 
         certified psychiatrist.  Dr. Gallagher examined and evaluated 
 
         claimant on November 6, 1993.  The psychiatric expert opined the 
 
         following in his report of November 9, 1993:
 
         
 
              MMPI-II Findings
 
         
 
                 It was thought that Ms. Laing approached this test 
 
              in a frank and open manner and a valid clinical profile 
 
              of personality functioning was obtained.  Very clearly, 
 
              physical concerns and a depressed mood appeared to be 
 
              the primary problems that emerged.  Her depressed mood 
 
              is accompanied by physical complaints and fatigue.  She 
 
              is clearly concerned about failing physical health and 
 
              has difficulty envisioning a positive future.
 
         
 
                 It was also suggested that Ms. Laing is somewhat 
 
              introverted and tends toward interpersonal avoidance.  
 
              Her shyness may lead to problematic social 
 
              relationships.  She may feel as if her problems are not 
 
              amenable to psychotherapeutic intervention, which may 
 
              explain her reluctance thus far to engage in such a 
 
              process.  In any event, a depressive picture is evident 
 
              and a diagnosis of dysthymic disorder rather than major 
 
              depressive disorder is suggested currently.
 
         
 
              Impression
 
         
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
                 Ms. Laing does appear to have suffered a depressive 
 
              disorder in conjunction with the physical difficulties 
 
              that presented themselves on or after July, 1989.  Her 
 
              symptoms of depression seemed to have worsened as she 
 
              found the corrective surgeries for the carpal tunnel 
 
              difficulties to be apparently ineffective.  
 
              Furthermore, it is not clear that any other 
 
              intervention will be useful and there seems to be no 
 
              clear pathway for "career rehabilitation".  She is 
 
              obviously very concerned about her financial situation 
 
              and seems perplexed about her dependence upon her 
 
              father who has limited resources per her report.
 
         
 
                  ...
 
         
 
                 I also discussed the psychotherapeutic issues with 
 
              Ms. Laing, much as Dianne Alber did sometime ago, and 
 
              hopefully have encouraged her to seek help to deal with 
 
              the number of stressful issues that persist, both 
 
              currently and historically.  She intends to do this of 
 
              her own accord rather than through the assistance of an 
 
              insurance carrier.  This might help to expedite 
 
              improvement in her emotional well-being as she is 
 
              seemingly embittered about a number of issues including 
 
              this worker's compensation process.  Although Ms. Laing 
 
              was hesitant to discuss past emotional events in the 
 
              context of this worker's compensation process, I did 
 
              not think her to be demonstrating any signs of overt 
 
              malingering during this examination.  I do not think 
 
              that a pharmacologic treatment for her depressed mood 
 
              in and of itself is sufficient, however.
 
         
 
         (Defendants' Ex. C, Deposition Ex. 2)
 
         
 
              In his deposition, Dr. Gallagher testified that:
 
         
 
                 She did not overtly have any depressive symptoms, as 
 
              best I could determine, until whatever physically 
 
              occurred to her on the job or during the course of her 
 
              employment; so it was after that, this period of 
 
              employment at Staff-Temps, that the depressive disorder 
 
              became evident.
 
         
 
         (Def. Ex. C, p. 14)
 
         
 
              Under cross-examination, Dr. Gallagher elaborated:
 
         
 
                 Q.  If I follow Joe's question to you about the 
 
              relationship between the depression and her claimed 
 
              occupational duties, if I follow what you are saying, 
 
              to the extent that, for instance, her chronic pain is 
 
              associated with the carpal tunnel syndrome, then so too 
 
              is her dysthymic disorder?
 
         
 
                 A.  Yes, I would think so.
 
         
 
                 Q.  I take it that it would--the same would be true 
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         
 
              with respect to her fibrositis syndrome.  To the extent 
 
              that that is related to her occupation with 
 
              Staff-Temps, so too would be the dysthymic disorder?
 
         
 
                 A.  Well, with the fibrositis and fibromyalgia, I 
 
              think probably nobody really knows what the etiology is 
 
              of that.  It seems to have arisen during this time 
 
              period but that's not my area of expertise, 
 
              fibromyalgia.
 
         
 
                 Q.  Is there any indication in your history or your 
 
              review of the records that the--that she was 
 
              manifesting any depressive manifestation associated 
 
              with depression or dysthymia prior to the onset of 
 
              symptoms involving her arms?
 
         
 
                 A.  No, there was nothing I was able to obtain a 
 
              history to that effect.
 
         
 
         (Def. Ex. C, p. 20, l. 16-p. 21, l. 13)
 
         
 
              Finally, pursuant to defendants' request, claimant was 
 
         examined and evaluated by Jill R. Meilahn, D.O., a specialist in 
 
         physical medicine rehabilitation.  Dr. Meilahn examined claimant 
 
         on one occasion.  The physician testified by deposition.  In her 
 
         deposition, she opined that claimant suffered from primary 
 
         fibromyalgia syndrome with an unknown etiology (Def. Ex. B, 
 
         p. 8).
 
         
 
              As of the date of the hearing, claimant had been unemployed.  
 
         She had not secured employment in any capacity.
 
         
 
                       
 
         
 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
         
 
                          CONCLUSIONS OF LAW
 
         
 
              The party who would suffer loss if an issue were not 
 
         established has the burden of proving that issue by a 
 
         preponderance of the evidence.  Iowa R. App. P. 14(f).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the alleged injury actually occurred and that 
 
         it arose out of and in the course of employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967).  The words 
 
         "arising out of" refer to the cause or source of the injury.  The 
 
         words "in the course of" refer to the time, place and 
 
         circumstances of the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
         415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 
 
         1971).
 
         
 
              A personal injury contemplated by the workers' compensation 
 
         law means an injury, the impairment of health or a disease 
 
         resulting from an injury which comes about, not through the 
 
         natural building up and tearing down of the human body, but 
 
         because of trauma.  The injury must be something which acts 
 
         extraneously to the natural processes of nature and thereby 
 
         impairs the health, interrupts or otherwise destroys or damages a 
 
         part or all of the body.  Although many injuries have a traumatic 
 
         onset, there is no requirement for a special incident or an 
 
         unusual occurrence.  Injuries which result from cumulative trauma 
 
         are compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
         368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 
 
         125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 
 
         158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724, 
 
         254 N.W. 35 (1934).  An occupational disease covered by chapter 
 
         85A is specifically excluded from the definition of personal 
 
         injury.  Iowa Code 85.61(5); Iowa Code 85A.8.
 
         
 
              For purposes of this action, it is determined that claimant 
 
         sustained a work injury on July 29, 1989.  This was the last date 
 
         when claimant was able to work in her capacity as an employee of 
 
         defendant-employer.  Defendants had stipulated that claimant 
 
         sustained a work injury on either July 7, 1989 or else on July 
 
         29, 1989. 
 
         
 
              In file number 924438, claimant alleged she sustained a 
 
         work-related injury on July 7, 1989.  However, this is really the 
 
         same set of circumstances which occurred on the 29th of July.  
 
         Claimant's injury for purposes of compensability is July 29, 
 
         1989. It is the determination of the undersigned that claimant 
 
         takes nothing further from file number 924438.
 
         
 
              The parties have stipulated that claimant's condition is a 
 
         cause of temporary disability.  The period involved is in 
 
         dispute.  Claimant alleges she is entitled to a running award 
 
         from the July 29th date.  Defendants deny claimant is entitled to 
 
         a running award or to any permanency benefits.  
 
         
 
              The issue of permanency need not be addressed at this 
 
         juncture since claimant has not reached maximum medical 
 

 
         
 
         Page  13
 
         
 
         
 
         
 
         
 
         
 
         improvement.  It is quite evident to this deputy industrial 
 
         commissioner that the issue of permanency is not ripe for 
 
         resolution.  Two board certified psychiatrists have testified 
 
         that claimant is suffering from depression as a result of her 
 
         physical injury or injuries which are work related.  Claimant's 
 
         psychiatrist, in his report, related claimant's condition to her 
 
         work injury.  Likewise, defendants' psychiatrist, Dr. Gallagher, 
 
         also testified that claimant's depression was causally connected 
 
         to her work injuries.  Dr. Gallagher testified that claimant is 
 
         in need of additional treatment such as psychotherapy and 
 
         prescribed medication.  Nevertheless, defendants have not 
 
         provided the necessary psychotheraputic treatment to claimant.  
 
         This deputy believes it is highly unlikely that claimant will 
 
         reach maximum medical improvement if she is not afforded the 
 
         proper psychiatric treatment which even defendants' physician has 
 
         recommended.  His recommended treatment is reasonable, given the 
 
         nature of claimant's condition.  Despite the reasonableness of 
 
         the recommended treatment, it has not been offered to claimant.  
 
         
 
              Section 85.34(1) provides that healing period benefits are 
 
         payable to an injured worker who has suffered permanent partial 
 
         disability until (1) the worker has returned to work; (2) the 
 
         worker is medically capable of returning to substantially similar 
 
         employment; or (3) the worker has achieved maximum medical 
 
         recovery.  The healing period can be considered the period during 
 
         which there is a reasonable expectation of improvement of the 
 
         disabling condition.  See Armstrong Tire & Rubber Co. v. Kubli, 
 
         312 N.W.2d 60 (Iowa Ct. App. 1981).  Healing period benefits can 
 
         be interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 405 
 
         (Iowa 1986).
 
         
 
              This deputy is in agreement with claimant.  She is entitled 
 
         to a running award for the period of time she is temporarily 
 
         disabled or until such time as maximum medical improvement can be 
 
         determined.  As of the date of the hearing, there had been no 
 
         indication from either psychiatrist that claimant had attained 
 
         maximum medical improvement.  In fact, the evidence is quite the 
 
         contrary.  Dr. Gallagher recommends a course of treatment which 
 
         he maintains will assist claimant in improving her depressed 
 
         condition.  Defendants are obligated to provide the proper 
 
         medical/psychiatric care to claimant so long as the medical 
 
         treatment is reasonable and necessary.  Such reasonable and 
 
         necessary medical treatment is provided in section 85.27 of the 
 
         Iowa Code.  Defendants must comply and provide the requisite 
 
         treatment.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendants shall provide to claimant reasonable and 
 
         necessary medical care, including psychiatric care as provided in 
 
         section 95.27 of the Iowa Code.
 
         
 
              Defendants shall also provide to claimant weekly benefits in 
 
         the form of a running award from the date of claimant's injury 
 
         and for the duration of her disability or until such time as it 
 

 
         
 
         Page  14
 
         
 
         
 
         
 
         
 
         
 
         is determined that claimant has reached maximum medical 
 
         improvement, and the weekly benefits shall be paid at the 
 
         stipulated weekly benefit rate of $142.13 per week.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year 
 
         pursuant to section 85.30, Iowa Code as amended.
 
         
 
              Defendants shall receive credit for all benefits previously 
 
         paid.
 
         
 
              Costs are taxed to defendants pursuant to rule 343 IAC 4.33.
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division and pursuant to rule 343 IAC 3.1.
 
         
 
         
 
         
 
              Signed and filed this ____ day of October, 1994.
 
         
 
         
 
         
 
                                       ______________________________               
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Steven C. Jayne
 
         Attorney at Law
 
         5835 Grand Ave  STE 201
 
         Des Moines  IA  50312
 
         
 
         Mr. Joseph S. Cortese, II
 
         Attorney at Law
 
         500 Liberty Bldg
 
         Des Moines  IA  50309
 
         
 
 
         
 
 
 
 
 
 
 
 
 
                                               1801; 1802; 1803;                   
 
                                               1803.1; 2500
 
                                               Filed October 28, 1994
 
                                               MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         NANCY LAING,   
 
                   
 
              Claimant, 
 
                   
 
         vs.                             File Nos. 924438
 
                                                  1002210
 
         STAFF-TEMPS,   
 
                                        A R B I T R A T I O N
 
              Employer, 
 
                                          D E C I S I O N
 
         and       
 
                   
 
         LIBERTY MUTUAL INSURANCE 
 
         COMPANY,  
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         1801; 1802; 1803; 1803.1; 2500
 
         Claimant sustained a bilateral carpal tunnel work injury.  
 
         Subsequent to the work injury, claimant became depressed.  She 
 
         was treated with anti-depressants.  Two psychiatrists opined 
 
         there was a nexus between her carpal tunnel injury and her 
 
         depression.  The psychiatrists for both claimant and defendants 
 
         opined that prescription medication was not adequate treatment 
 
         for claimant.  They opined that the medications should be coupled 
 
         with psychotherapy in order to see a vast improvement in 
 
         claimant's condition.  Defendants, as of the date of the hearing, 
 
         had not provided the psychotherapy, despite the opinion of their 
 
         physician.
 
         HELD:  The deputy industrial commissioner bifurcated the issue of 
 
         permanency since claimant had not reached maximum medical 
 
         improvement.  Claimant was entitled to a running award with 
 
         respect to her award for weekly benefits.  Benefits were awarded 
 
         from the date of the hearing and for the duration of her 
 
         disability or until such time as it has been determined that 
 
         claimant has reached maximum medical improvement.
 
         The issue of permanency benefits is bifurcated until a later 
 
         point in time.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                BEFORE THE IOWA INDUSTRIAL COMMISSIONER          
 
 
 
MARVIN R FERGUSON,   
 
 
 
     Claimant,                       File Nos. 961258 & 924495
 
         
 
vs.                                    A R B I T R A T I O N
 
         
 
FARMLAND FOODS, INC.,                     D E C I S I O N
 
         
 
     Self-Insured,  
 
     Employer,       
 
         
 
and        
 
         
 
SECOND INJURY FUND OF IOWA,    
 
         
 
      Defendants.    
 
-----------------------------------------------------------------         
 
                  STATEMENT OF THE CASE
 
         
 
This decision concerns claims against the Second Injury 
 
Fund of Iowa made based upon an injury to claimant's right 
 
hand that occurred on July 19, 1989 and a bilateral injury 
 
to both of claimant's hands that occurred on or about April 
 
         
 

 
         
 
 
 
 
 
 
 
30, 1990.  Claimant has settled cases against the employer 
 
using agreements for settlement.  In file number 912575 a 
 
settlement was approved on March 18, 1994.  Under the terms 
 
of that settlement claimant was paid 9.5 weeks of 
 
compensation for permanent partial disability representing a 
 
5 percent disability of his left hand which resulted from an 
 
injury of November 15, 1988.  On March 18, 1994 a settlement 
 
was approved in file number 924495 wherein claimant was 
 
awarded 9.5 weeks of permanent partial disability 
 
compensation representing a 5 percent disability of his 
 
right hand that resulted from an injury of July 19, 1989.  
 
         
 
In file number 961258 claimant was awarded 50 weeks of 
 
compensation for an injury of April 30, 1990 representing a 
 
10 percent permanent partial disability of the body as a 
 
whole pursuant to Iowa Code section 85.34(2)(s).  That 
 
settlement was also approved on March 18, 1994.  The 
 
settlement was made using a full commutation.  
 
         
 
The issues for determination are whether claimant has a 
 
prior loss that would entitle him to receive benefits from 
 
the Second Injury Fund of Iowa.  The other issue is to 
 
determine the claimant's entitlement, if any.  The Second 
 
Injury Fund contends that it is not bound by settlements 
 
which are approved by this agency.  The Fund contends that 
 
claimant had no disability from either of his carpal tunnel 
 
syndrome conditions or surgeries and that the claimant's 
 
failure to return to work on April 30, 1990 was not a 
 
qualifying loss because it resulted from rheumatoid 
 
arthritis.
 
         
 
The record consists of testimony from Marvin R. 
 
Ferguson and jointly offered exhibits 1 through 157.  
 
Official notice was taken of the settlements that are 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
previously mentioned in this decision.
 
         
 
                  FINDINGS OF FACT
 
         
 
Marvin R. Ferguson is a 54-year-old man who completed 
 
the eighth grade at age 15 but did not receive a diploma.  
 
He never served in the armed forces.  Claimant's work 
 
history includes highway construction and the packing house 
 
industry.  Since 1964 his work has primarily been in the 
 
packing house industry although on two occasions he worked 
 
briefly on highway construction projects.  
 
         
 
In 1980 claimant was diagnosed with rheumatoid 
 
arthritis.  (Exhibit 43)  Since that date the condition and 
 
waxed and waned.  A number of treatment modalities have been 
 
employed.  He has had multiple surgeries for the condition.  
 
Over the years he has had complaints and symptoms in many 
 
different parts of his body including his hands and feet.  
 
         
 
In approximately 1978 Marvin commenced employment with 
 
Farmland Foods.  He worked on the loading dock then moved to 
 
the sausage room where he operated machines for 
 
approximately three and one-half years.  From 1982 through 
 
1988 Marvin worked in the night shift doing cleanup of the 
 
kill floor.  In 1988 he moved to the day shift and obtained 
 
a job assembling boxes.  In late 1988 or early 1989 he 
 
developed pain in his hands.  He came under the care of 
 
Thomas P. Ferlic, M.D., an orthopedic surgeon, who was 
 
familiar with claimant as a result of having previously 
 
participated in the care of his rheumatoid arthritis.  
 
         
 
Carpal tunnel syndrome in claimant's left hand was diagnosed 
 
and on March 31, 1989 surgery was performed.  (Ex. 31, pages 
 
8, 11)  Dr. Ferlic opined that there was a causal 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
relationship between claimant's employment in the packing 
 
house and the left carpal tunnel syndrome.  (Ex. 31, p. 10)  
 
         
 
Dr. Ferlic also opined that claimant has a 5 percent 
 
permanent partial impairment of the left hand as a result of 
 
the carpal tunnel syndrome.  (Ex. 31, pp. 11-12)
 
         
 
After recovering from the carpal tunnel surgery 
 
claimant returned to work.  He again made boxes for a time 
 
but then moved to a sausage link job.  At that point he 
 
began having trouble with his right hand.  On August 8, 1989 
 
claimant saw Thomas Ferlic with symptoms of carpal tunnel 
 
syndrome in his right hand.  (Ex. 31, p. 12)  Dr. Ferlic 
 
performed carpal tunnel release surgery on August 14, 1989.  
 
         
 
Dr. Ferlic opined that the carpal tunnel condition in 
 
claimant's right hand was caused by his work in the packing 
 
house and that it has left claimant with a 5 percent 
 
permanent partial impairment of the right hand.  (Ex. 31, 
 
pp. 13-14)  
 
         
 
Claimant returned to work following the right carpal 
 
tunnel surgery but Dr. Ferlic restricted him to a cleanup 
 
position.  He permanently disqualified from working on a 
 
line.  (Ex. 20)  
 
         
 
Claimant performed cleanup work until late April 1990.  
 
He found that he was unable to perform the work due to the 
 
condition of his hands.  He received warnings concerning 
 
inadequate work performance.  His last day of work was April 
 
30, 1990 (or perhaps May 1, 1990).  
 
         
 
After leaving work claimant underwent surgery 
 
consisting of a trigger finger release and removal of a mass 
 
from his right wrist.  Dr. Ferlic's note of May 8, 1990 
 
         
 

 
         
 
 
 
 
 
 
 
indicates that the pathology report was consistent with 
 
rheumatoid arthritis.  (Ex. 1, p. 11)  Dr. Ferlic 
 
subsequently reported that he 
 
felt strongly that claimant should not return to any type of 
 
employment in a packing house.  (Ex. 1, p. 12)  Claimant has 
 
no permanent disability resulting from the trigger finger 
 
condition.  (Ex. 26)  In December 1990 Dr. Ferlic allowed 
 
claimant to return to restricted work with restrictions that 
 
included no lifting of greater than ten pounds, no use of a 
 
high pressure hose and no repetitive grasping.  (Ex. 27)  
 
         
 
The employer did not allow claimant to return to work with 
 
those restrictions.  He has not since returned to work 
 
anywhere although he has made an employment search as part 
 
of his qualification for unemployment benefits.  (Ex. 153, 
 
pp. 7-18)
 
         
 
The record shows beyond any doubt that Marvin R. 
 
Ferguson is totally disabled.  (Ex. 19, p. 4)  He applied 
 
for vocational rehabilitation assistance but his file was 
 
closed because he was considered to be handicapped too 
 
severely to benefit from the services.  (Ex. 154)  He has 
 
been awarded social security disability benefits.  (Ex. 156)  
 
Dr. Ferlic considers him to be totally disabled.  (Exs. 28-
 
30)  Dennis W. Crabb, M.D., has also characterized claimant 
 
as being incapable of performing gainful employment.  (Ex. 
 
42)  
 
         
 
Dr. Ferlic expressed the opinion that claimant had a 15 
 
percent permanent impairment of each foot as a result of 
 
bilateral bunionectomy surgery performed in 1985.  (Ex. 31, 
 
p. 7)  Dr. Ferlic also opined that by December 1990 claimant 
 
had a 15 percent permanent impairment of each hand.  He 
 
stated that the progression of the disability had occurred 
 
         
 

 
         
 
 
 
 
 
 
 
subsequent to the surgery.  He stated that part of the 
 
worsening was due to his underlying arthritic disease.  He 
 
also felt that claimant's work activity had contributed to 
 
the worsening in the sense that it exacerbated the rate at 
 
which he worsened.  (Ex. 31, pp. 16-18)  He felt that the 
 
worsening was work related in the sense that the symptoms 
 
had worsened during the time that the claimant had been 
 
working.  Dr. Ferlic gave no description with regard to the 
 
mechanism of further injury that he felt had occurred after 
 
claimant's return to work following the carpal tunnel 
 
surgeries.  It is noted that claimant had worked on the 
 
cleanup for several years without any problems with his 
 
hands prior to the time he moved to the box making job.  
 
         
 
William R. Palmer, M.D., claimant's rheumatologist, 
 
reported:
 
         
 
There is no doubt in my mind that Mr. 
 
Ferguson's carpal tunnel symptoms and 
 
tenosynovitis have been definitely aggravated by 
 
his work.  Though it is true that carpal tunnel 
 
symptoms and tenosynovitis are frequently seen in 
 
patients with rheumatoid arthritis, it is my 
 
sincere opinion that the severity of these 
 
conditions as exhibits by Mr. Ferguson can be 
 
explained by the effects of his occupation 
 
superimposed upon his rheumatoid arthritis.  (Ex. 
 
86)  
 
         
 
Dr. Ferlic addressed the issue of causation as follows:  
 
"And, my thought on Mr. Ferguson is that his rheumatologic 
 
condition could have caused it, but they're seen often 
 
enough in packinghouse [sic] workers that I, that I can say 
 
         
 

 
         
 
 
 
 
 
 
 
that this exacerbated his condition, made it worse."  (Ex. 
 
31, p. 30)  According to Dr. Ferlic trigger fingers and 
 
carpal tunnel syndrome are common in packing house workers 
 
who do not have rheumatoid disease.  It is that connection 
 
that seems to be the principle basis for Dr. Ferlic's 
 
opinion concerning causation.  (Ex. 31, p. 24)
 
         
 
Dr. Ferlic generally did not give claimant specific 
 
work restrictions attributable to his carpal tunnel syndrome 
 
condition.  He did so intentionally so that claimant could 
 
arrange some type of employment with the employer that would 
 
not bother his condition.  (Ex. 31, p. 27)  It is noted that 
 
Dr. Ferlic did permanently remove claimant from line work.  
 
(Ex. 20)  
 
         
 
The record of this case does not contain any expert 
 
opinion evidence on the issue of apportioning the claimant's 
 
carpal tunnel syndrome condition between the rheumatoid 
 
disease and the work activity.  There is no opinion in the 
 
record apportioning claimant's current state of total 
 
disability between that produced by the carpal tunnel 
 
syndrome condition and that attributable to the rheumatoid 
 
arthritis condition.  When the record is viewed as a whole, 
 
however, it is apparent that the rheumatoid arthritis is the 
 
principle disabling component.
 
         
 
The assessment of this case as made by Dr. Ferlic is 
 
accepted as being correct with regard to his opinions of 
 
causation and extent of disabilities.  The only exception, 
 
however, is that a close reading of the evidence shows that 
 
the cleanup work performed after claimant's return to work 
 
in October 1989 was considered by Dr. Ferlic to be causally 
 
related to the work simply because claimant was working at 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
the time the condition worsened.  (Ex. 31, p. 17)  
 
         
 
The settlements that have been entered into are fully 
 
supported by the evidence which is in the record of this 
 
case.  
 
         
 
                 CONCLUSIONS OF LAW
 
         
 
Section 85.64 governs Second Injury Fund liability.  
 
Before liability of the Fund is triggered, three 
 
requirements must be met.  First, the employee must have 
 
lost or lost the use of a hand, arm, foot, leg or eye.  
 
         
 
Second, the employee must sustain a loss or loss of use of 
 
another specified member or organ through a compensable 
 
injury.  Third, permanent disability must exist as to both 
 
the initial injury and the second injury.  
 
         
 
The Second Injury Fund Act exists to encourage the 
 
hiring of handicapped persons by making a current employer 
 
responsible only for the amount of disability related to an 
 
injury occurring while that employer employed the 
 
handicapped individual as if the individual had had no 
 
preexisting disability.  See Anderson v. Second Injury 
 
Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa 
 
Workers' Compensation-Law and Practice, section 17-1.
 
         
 
The Fund is responsible for the industrial disability 
 
present after the second injury that exceeds the disability 
 
attributable to the first and second injuries.  Section 
 
85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 
 
467 (Iowa 1990); Second Injury Fund v. Neelans, 436 
 
N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal 
 
Co., 274 N.W.2d 300 (Iowa 1970).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
Apportionment of disability between a preexisting 
 
condition and an injury is proper only when some 
 
ascertainable portion of the ultimate industrial disability 
 
existed independently before an employment-related 
 
aggravation of disability occurred.  Bearce v. FMC Corp., 
 
465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. 
 
Sumner, 353 N.W.2d 407 (Iowa 1984).  Hence, where employment 
 
is maintained and earnings are not reduced on account of a 
 
preexisting condition, that condition may not have produced 
 
any apportionable loss of earning capacity.  
 
Bearce, 465 N.W.2d at 531.  
 
 
 
Likewise, to be apportionable, the preexisting disability 
 
must not be the result of another injury with the same 
 
employer for which compensation was not paid.  Tussing v. 
 
George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990).
 
         
 
The burden of showing that disability is attributable 
 
to a preexisting condition is placed upon the defendant.  
 
Where evidence to establish a proper apportionment is 
 
absent, the defendant is responsible for the entire 
 
disability that exists.  Bearce, 465 N.W.2d at 536-37; 
 
Sumner, 353 N.W.2d at 410-11.
 
         
 
Industrial disability or loss of earning capacity is a 
 
concept that is quite similar to impairment of earning 
 
capacity, an element of damage in a tort case.  Impairment 
 
of physical capacity creates an inference of lessened 
 
earning capacity.  The basic element to be determined, 
 
however, is the reduction in value of the general earning 
 
capacity of the person, rather than the loss of wages or 
 
earnings in a specific occupation.  Post-injury earnings 
 
create a presumption of earning capacity.  The earnings are 
 
         
 

 
         
 
 
 
 
 
 
 
not synonymous with earning capacity and the presumption may 
 
be rebutted by evidence showing the earnings to be an 
 
unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
(Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
(Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison 
 
County, Thirty-fourth Biennial Report of the Industrial 
 
Commissioner 218 (1979); 2 Larson Workmen's Compensation 
 
Law, sections 57.21 and 57.31.
 
         
 
The Second Injury Fund argues that it is not bound by 
 
the settlements and commutation because they were not a 
 
party to the settlements.  Any settlement must be approved 
 
by the industrial commissioner to be enforceable.  (Iowa 
 
Code sections 86.27, 86.13, 85.35, and 85.47)  The function 
 
of the industrial commissioner when reviewing settlements 
 
for purposes of approval is to insure that there is a 
 
factual basis to support the settlement that has been agreed 
 
upon by the parties and to insure that the settlement is in 
 
accord with the law.  (There would be no other purpose for 
 
requiring the industrial commissioner to approve 
 
settlements.)  Once a settlement is approved it has the same 
 
force and effect as a decision entered in a contested case 
 
proceeding.  It has previously been held by this agency that 
 
the Second Injury Fund is bound by the stipulation regarding 
 
rate of compensation as part of a settlement that has been 
 
approved.  Klebs v. Johnsrud Transport, Inc., file number 
 
918569 (App. Dec. 1994).  The situation is similar to 
 
applying the doctrine of preclusion to one who was not a 
 
party at the time the original adjudication occurred.  A 
 
reading of the Second Injury Fund statute seems to indicate 
 
that the Fund does not become involved until the dispute 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
between the employer and employee has been resolved.  It 
 
would be very inefficient from a standpoint of 
 
administrative burden and cost if the Fund had to be 
 
involved in every case at every point to insure that its 
 
interests were protected in the event a claim was later made 
 
against the Fund.  Normally it would be expected that the 
 
interests of the employer would not be in conflict with the 
 
interests of the Fund.  Accordingly, the system of having 
 
settlements approved by the industrial 
 
commissioner provides an ample safeguard to protect the 
 
interest of the Fund.  A settlement between the employer and 
 
employee is presumptively valid and binding upon the Second 
 
Injury Fund of Iowa.  The binding nature is not, however, 
 
absolute.  Whenever there is evidence of fraud, collusion or 
 
mistake, the Second Injury Fund may raise the issue and 
 
introduce such evidence as it deems appropriate in order to 
 
guard against the possibility of unfair prejudice to the 
 
Fund.  It serves no useful purpose, however, to litigate or 
 
re-litigate issues which have previously been adjudicated 
 
and which are supported by substantial evidence.  
 
         
 
It is therefore concluded that the three settlements 
 
shown in the record of this proceeding are valid and binding 
 
upon the Second Injury Fund of Iowa since no evidence has 
 
been introduced showing any of the settlements to have been 
 
tainted by fraud, collusion, deceit, mistake of fact or 
 
error of law.  It is recognized that in disputed cases the 
 
facts may be viewed in varying ways which could give 
 
differing results depending upon where weight is given and 
 
what inferences are made.  Great deference should be given 
 
to those facts which are established by the agreement 
 
between the employer and employee when conflicting evidence 
 
exits.  When such occurs and the settlement is approved by 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
the industrial commissioner the mere fact that a difference 
 
result could be reasonably reached does not constitute a 
 
basis for reopening the issue so long as it appears as 
 
though the result provided by the settlement was made in 
 
good faith by the parties.  Hoffman v. Second Injury Fund 
 
of Iowa, file numbers 831136, 869798 (Arb. Dec. Aug. 10, 
 
1990); Madsen v. Wilson Foods Corp., file numbers 695235, 
 
808301 (Arb. Dec. Jan. 23, 1991).
 
         
 
In view of the lack of expert opinion evidence on the 
 
issue of apportionment it would seem that the claimant is 
 
legally entitled, as a matter of law, to an award of 
 
permanent total disability.  Such is not, however, the case 
 
since the disability attributable to the rheumatoid 
 
arthritis is so apparent.  To be certain, claimant has 
 
problems with his hands.  Those problems would not, however, 
 
be totally disabling were it not for the interaction of the 
 
rheumatoid arthritis condition.  Progressive conditions such 
 
as rheumatoid arthritis provide a particular dilemma when 
 
determining disability benefit entitlements.  To be certain, 
 
the rheumatoid disease is not work related.  The normal 
 
rules dealing with aggravation of a preexisting condition 
 
and apportionment can cause an employer to be liable for 
 
paying for benefits for disability attributable to a 
 
rheumatoid condition.  That is especially true in a case 
 
such as this where the defense has failed to introduce 
 
expert opinion evidence on the issue of apportionment.  It 
 
is noted that the work restrictions recommended by Dr. 
 
Ferlic in December 1990 would not normally render a person 
 
totally disabled.  When the evidence is viewed as a whole it 
 
becomes apparent that the physicians are finding claimant to 
 
be totally disabled primarily on the basis of his rheumatoid 
 
arthritis, with lesser importance on his carpal tunnel 
 
         
 

 
         
 
 
 
 
 
 
 
syndrome condition.  It is therefore determined that Marvin 
 
R. Ferguson has a 35 percent permanent partial disability as 
 
a result of his carpal tunnel syndrome injuries.  It is 
 
further determined that the disability is manifested with 
 
the injury date of April 30, 1990, file number 961258.  
 
         
 
Prior to that time the claimant had returned to work and 
 
worked virtually without activity restrictions.  Exhibit 157 
 
shows his earnings to have not changed appreciably following 
 
the carpal tunnel syndrome surgeries in comparison to what 
 
the earnings had been previously.  
 
         
 
Thirty-five percent permanent partial disability 
 
entitles the claimant to 175 weeks of compensation.  File 
 
number 961258 establishes the rate of compensation to be 
 
$261.56.  The compensable value of the claimant's 
 
preexisting 15 percent impairment of each foot is 45 weeks.  
 
         
 
The compensable value of the preexisting 5 percent permanent 
 
partial disability of each hand is 19 weeks.  The 
 
compensable value of the preexisting disability is therefore 
 
64 weeks.  The employer's liability for the injury of April 
 
30, 1990 is 50 weeks.  A total of 114 weeks is therefore to 
 
be deducted from the entitlement of 175 weeks.  The Second 
 
Injury Fund of Iowa is therefore liable to pay claimant 61 
 
weeks of compensation at the rate of $261.56 per week.  That 
 
amount computes to $15,955.16.  The time for payment of the 
 
employer's benefits is long past and the remaining liability 
 
of the Fund is fully accrued, past due and owing.  
 
         
 
When deciding this case it is apparent that regardless 
 
of whether April 30, 1990 is considered to a different 
 
injury or whether the date of July 19, 1989 was to be 
 
considered the date of injury, the outcome would be the 
 
same.  The record would support a finding that claimant's 
 
         
 

 
         
 
 
 
 
 
 
 
return to work in October 1989 and his inability to continue 
 
working is evidence of the disability that resulted from the 
 
carpal tunnel injury.  The view of the evidence that is 
 
supported by the settlement entered into by the parties for 
 
the April 30, 1990 injury is the view that is adopted when 
 
determining this case.
 
         
 
                  ORDER
 
         
 
IT IS THEREFORE ORDERED that the Second Injury Fund of 
 
Iowa pay Marvin R. Ferguson sixty-one (61) weeks of 
 
compensation for permanent partial disability at the rate of 
 
two hundred sixty-one and 56/100 dollars ($261.56).  The 
 
entire amount thereof is past due and owing and shall be 
 
paid in a lump sum in the amount of fifteen thousand nine 
 
hundred fifty-five and 16/100 dollars ($15,955.16).  All of 
 
the foregoing payment is payable under file number 961258 
 
attributable to the injury date of April 30, 1990.  No 
 
recovery is payable in file number 924495.
 
         
 
It is further ordered that the costs of this proceeding 
 
are assessed against the Second Injury Fund of Iowa.
 
         
 
Signed and filed this __________ day of May, 1995.
 
         
 
                  
 
         
 
                                        ______________________________
 
                                        MICHAEL G. TRIER
 
                                        DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
Copies to:
 
         
 
Mr. James Thorn
 
Attorney at Law
 
310 Kanesville Blvd
 
PO Box 398
 
Council Bluffs, IA  51502-0398
 
         
 
Ms. Judith Ann Higgs
 
Attorney at Law
 
701 Pierce St, STE 200
 
PO Box 3086
 
Sioux City, Iowa  51102
 
         
 
Ms. Shirley Steffe
 
Assistant Attorney General
 
Hoover State Office Bldg
 
Des Moines, IA  50319
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                  2906 3301 3203 1404 1803 1806 
 
                                  1808 2209 2206
 
                                  Filed May 1, 1995
 
                                  Michael G. Trier
 
         
 
                  
 
               BEFORE THE IOWA INDUSTRIAL COMMISSIONER          
 
 
 
MARVIN R FERGUSON,   
 
         
 
     Claimant,                      File Nos. 961258 & 924495
 
         
 
vs.                                   A R B I T R A T I O N
 
         
 
FARMLAND FOODS, INC.,                    D E C I S I O N
 
         
 
     Self-Insured,  
 
     Employer,       
 
         
 
and        
 
         
 
SECOND INJURY FUND OF IOWA,    
 
         
 
     Defendants.    
 
----------------------------------------------------------------                  
 
         
 
2906 3301 3203 1404
 
         
 
Settlement between employee and employer that is approved by 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
industrial commissioner is presumptively valid and binding 
 
on Second Injury Fund; but presumption may be avoided if 
 
Fund carries burden of proving fraud, collusion, deceit, 
 
mistake of fact or error of law.  Second Injury Fund statute 
 
does not contemplate relitigating entire case whenever claim 
 
is made against the Fund.
 
         
 
1803 1806 1808 2209 2206
 
         
 
Claimant with severely disabling rheumatoid arthritis 
 
(preexisting condition) and resulting loss of use of fact, 
 
held entitled to 35 percent of permanent partial disability 
 
from bilateral carpal tunnel injury.  The combination caused 
 
him to become unemployable and totally disabled.  Prior 
 
losses and employer's liability off set 114 weeks; Fund 
 
liable for 61 weeks.
 
         
 
Disability from rheumatoid arthritis apportioned without 
 
expert medical evidence because its role was so apparent and 
 
severe in causing the total disability.
 
         
 
         
 
         
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JERRY BIEZUNS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 924582
 
            HARKER'S INC.,                :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INSURANCE,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Jerry 
 
            Biezuns, claimant, against Harker's Inc., employer, and 
 
            National Union Fire Insurance Company, insurance carrier, 
 
            for benefits as the result of an injury which occurred on 
 
            June 12, 1989.  A hearing was held in Sioux City, Iowa, on 
 
            August 26, 1992, and the case was fully submitted at the 
 
            close of the hearing.  Claimant was represented by Robert J. 
 
            Dull.  Defendants were represented by Rita C. Grimm.  The 
 
            record consists of the testimony of Jerry Biezuns, claimant; 
 
            claimant's exhibits A through V and employer's exhibits 1 
 
            through 5.  
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability;
 
            
 
                 Whether claimant is entitled to temporary or permanent 
 
            disability benefits, and, if so, the extent of benefits to 
 
            which he is entitled; and
 
            
 
                 Whether claimant is entitled to medical benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                                CAUSAL CONNECTION
 
            
 
                 It is determined that claimant sustained an injury on 
 
            June 12, 1989, which arose out of and in the course of 
 
            employment with employer and that the injury was the cause 
 
            of temporary and permanent disability.
 
            
 
                 Claimant worked for employer for approximately ten 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            years from 1979 to 1989.  His last job was described as 
 
            supervisor of the wash bay.  This job required claimant to 
 
            wash, clean up, service, and perform light maintenance on 
 
            employer's vehicles.  Claimant testified that the job 
 
            required him to use a high pressure washing hose almost 
 
            every hour of the day.  He also used pails and scrub 
 
            brushes.  
 
            
 
                 Claimant testified that in approximately 1984 or 1985 
 
            he began to experience weakness in his right arm.  Claimant 
 
            related that he was not able to hold the pressure hose as 
 
            long as it was required to do the job.  He said that he 
 
            experienced weakness, numbness and no feeling in his right 
 
            arm and hand.  Claimant said that it was necessary to shake 
 
            his arms in order to use them.  Eventually, he saw his 
 
            family physician, Thomas L. Duncan, M.D., on June 12, 1989.  
 
            
 
                 On June 12, 1989, Dr. Duncan recorded that claimant was 
 
            an employee of Harker's who washed trucks for the last nine 
 
            years and used a high pressure hose in his right hand.  He 
 
            suspected ulnar neuropathy and ordered nerve conduction 
 
            studies (exhibit J, page 1).
 
            
 
                 An electromyography and electrodiagnosis performed on 
 
            July 3, 1989, disclosed that the right median sensory 
 
            conduction across the right wrist was in the lower range of 
 
            normal.  Ulnar motor and sensory conductions around the 
 
            elbow were in the lower range of normal.  The neurologist, 
 
            D. Nitz, M.D., stated that both of these areas may be 
 
            developing early entrapment (defendants' ex. 1, p. 2).
 
            
 
                 Dr. Duncan wrote to claimant on July 8, 1989, that 
 
            these studies disclosed nerve pressure in the right wrist 
 
            and about the elbow (claimant's ex. A).  The doctor 
 
            explained to claimant on July 18, 1989, that the nerve 
 
            conduction velocity studies showed evidence of ulnar nerve 
 
            entrapment.  The doctor suggested a change in job duties for 
 
            three to four weeks and claimant was given a slip placing 
 
            him on light duty for three to four weeks (ex. B; ex. J, p. 
 
            1).
 
            
 
                 Claimant was taken off work entirely from July 24, 1989 
 
            (ex. C) through July 30, 1989 (ex. D), a period of seven 
 
            days or one week. 
 
            
 
                 Claimant testified that his light duty consisted of 
 
            working on motors in the shop in the same building, sweeping 
 
            floors and picking up things such as 80-pound engine heads.  
 
            Claimant averred that his so-called light duty work was, in 
 
            fact, repetitive work and that it was also heavy work.  He 
 
            contended that it was not light at all.  
 
            
 
                 Five days later, on August 4, 1989, claimant quit his 
 
            job with employer and started a new job with the city of Le 
 
            Mars as a laborer.  For one or two months, he simply 
 
            followed other employees around and studied and learned the 
 
            duties involved in his new job.  He read meters, performed 
 
            maintenance, mowed, trimmed, serviced pickup trucks, and 
 
            observed storage tanks which required climbing ladders to 
 
            look into the tanks.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
                 Claimant testified that during the period of light duty 
 
            with employer and during the first one or two months with 
 
            the city of Le Mars that his right upper extremity symptoms 
 
            subsided.  When he began regular duties for the city of Le 
 
            Mars, his right upper extremity symptoms became worse again 
 
            and got back to the same point it was at when he quit his 
 
            job with employer.  Dr. Duncan confirmed on July 28, 1989, 
 
            that claimant's peripheral ulnar neuropathy symptomatology 
 
            improved with being off work after June 24, 1989 (ex. J; 
 
            def. ex. 2).  Also on July 28, 1989, Dr. Duncan stated that 
 
            claimant was to avoid the high pressure hose and repetitive 
 
            motions with his right arm (ex. D).
 
            
 
                 On October 7, 1989, Dr. Duncan summarized claimant's 
 
            course of treatment.  He noted that light duty improved 
 
            claimant's condition, but that upon regular duty he would 
 
            probably experience recurrent symptomatology.  He 
 
            recommended that claimant consider a surgical release of the 
 
            entrapped areas, but first should consider a change in his 
 
            work duties (ex. E).  Thus it would appear that claimant 
 
            followed his physicians recommendations when he changed jobs 
 
            on August 4, 1989, before electing surgery, which was 
 
            eventually performed on January 30, 1992.
 
            
 
                 On October 19, 1989, Dr. Duncan wrote, "It is my 
 
            opinion that his Ulnar Neuropathy is directly related to his 
 
            employment at Harkers and that he suffers an approximately 
 
            33% disability in arm function as a result of his 
 
            neuropathy.  This is based on the American Medical 
 
            Association's guide to evaluation of impairment." (ex. F).  
 
            
 
                 Claimant testified and the record verifies, that 
 
            claimant saw Richard P. Murphy, M.D., an orthopedic surgeon, 
 
            for an independent medical examination on January 4, 1990, 
 
            which was requested by the insurance carrier.  Dr. Murphy 
 
            recorded that claimant initially noticed numbness and 
 
            tingling in the ring and little finger on the right hand 
 
            that was markedly increased by the use of the water gun used 
 
            to wash trucks for Harker's Inc.  The doctor added that 
 
            these symptoms would awaken claimant from a sound sleep at 
 
            night.  His physical examination revealed a positive Tinel's 
 
            sign and decreased sensation in the ulnar nerve distribution 
 
            with weakness of the ulnar innervated muscles.  Dr. Murphy 
 
            diagnosed (1) ulnar nerve compression, right elbow 
 
            antecubital fossa and (2) possible right median nerve 
 
            compression at the wrist (exs. G & H).
 
            
 
                 A second electromyography and electrodiagnosis 
 
            performed at the Marian Health Center by Dr. Nitz on April 
 
            2, 1990, reported no evidence of slowing around the elbow or 
 
            across the wrist.  EMG's of ulnar supplied muscles were 
 
            normal.  Right median sensory conductions were normal (ex. 
 
            3; ex. K).  Dr. Duncan reported on April 25, 1990, that the 
 
            favorable electromyography and nerve conduction studies were 
 
            good news and obviated surgery at that time, he nevertheless 
 
            stated that claimant's job duties were limited because of 
 
            his condition and that he would develop recurrent 
 
            symptomatology if he were exposed to the same job duties 
 
            again (ex. L).  On July 24, 1990, Dr. Murphy requested to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            see claimant again after he saw the results of the April 2, 
 
            1990, nerve conduction test (ex. M).
 
            
 
                 There are no records of medical treatment after he saw 
 
            Dr. Duncan on April 25, 1990, for over a year until claimant 
 
            saw Dr. Murphy on May 17, 1991.  Thus, the insurance carrier 
 
            did not comply with Dr. Murphy's request of July 24, 1990, 
 
            that he re-evaluate claimant at that time.
 
            
 
                 When claimant did see Dr. Murphy on May 17, 1991, 
 
            claimant complained of persistent right hand weakness, 
 
            increased tingling of the fingers and also pain with 
 
            pressure on the right elbow.  Dr. Murphy confirmed that 
 
            claimant sustained a symptomatic increase since his previous 
 
            examination on January 4, 1990.  Dr. Murphy recommended 
 
            still another EMG and nerve conduction test in Omaha and 
 
            that if it should show significant damage to the nerve, he 
 
            may require surgery (ex. R).  Apparently, Dr. Murphy's 
 
            recommendation was not followed by the insurance carrier 
 
            because there is no evidence of another EMG and nerve 
 
            conduction study based on Dr. Murphy's recommendation.
 
            
 
                 Dr. Duncan saw claimant on July 16, 1991, and recalled 
 
            that he first saw claimant in June of 1989 when claimant 
 
            presented with symptoms of ulnar neuropathy which he thought 
 
            were directly related to his employment at Harker's and the 
 
            use of a high pressure hose.  He said claimant had a 
 
            significant ulnar neuropathy and needed surgery.  He added 
 
            that he was appalled that the surgery had been delayed 
 
            because of a dispute between employers and insurance 
 
            carriers.  Dr. Duncan concluded by stating that this process 
 
            of denial of fault is leading to further deterioration of 
 
            claimant's condition (ex. N).  
 
            
 
                 Dr. Murphy, defendants' own choice of medical examiner 
 
            and evaluator wrote to the attorney for defendants, on July 
 
            1, 1991, as follows:  
 
            
 
                    In response to your letter to us of June 20, 
 
                 1991, in regard to your denial that Mr. Biezuns' 
 
                 ulnar nerve injury is related to his work at 
 
                 Harker's, Inc., I disagree.  It appears to me that 
 
                 it is clearly related to his job duties as an 
 
                 employee at Harker's when he utilized a high 
 
                 pressure hose.
 
            
 
                    This is well documented by Thomas Duncan, M.D., 
 
                 in numerous examinations of Mr. Biezuns in 1989 
 
                 and verified by a positive nerve conduction delay 
 
                 of the ulnar nerve at the elbow on July 3, 1989.  
 
                 The patient has had symptoms throughout (1989 to 
 
                 May of 1991) consistent with ulnar nerve injury, 
 
                 and has had two positive nerve tests by different 
 
                 examiners, both consistent with ulnar nerve injury 
 
                 at the elbow.  I am also aware of normal nerve 
 
                 conduction performed by Dr. Nitz on April 2, 1990; 
 
                 however, it is not unusual for nerve conduction 
 
                 testing to vary from examiner to examiner and from 
 
                 time to time.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                    Thus, it remains my opinion that the patient 
 
                 has definite evidence of ulnar nerve injury both 
 
                 clinically and electrically, dating back to his 
 
                 work at Harker's, Inc., and I have advised Mr. 
 
                 Biezuns that by not having the surgery he may be 
 
                 doing further damage to the ulnar nerve.
 
            
 
            (claimant's exhibit O)
 
            
 
                 Dr. Duncan wrote on December 31, 1991, that he had 
 
            examined Dr. Murphy's letter of July 1, 1991, and that he 
 
            concurred with Dr. Murphy's comments.  Dr. Duncan concluded 
 
            by stating, "Dr. Murphy is of the same opinion I am that the 
 
            injury is related to his work at Harker's and that further 
 
            denial of Mr. Biezuns' claim is potentially causing more 
 
            disability for Jerry." (ex. P). 
 
            
 
                 On the same date, December 31, 1991, Dr. Murphy wrote 
 
            to defendants' attorney that the work which claimant had 
 
            been performing from his initial examination on January 4, 
 
            1990, until his second examination on May 30, 1991, did 
 
            indeed contribute to his ulnar nerve injury.  Dr. Murphy 
 
            continued by stating that it was a sad commentary on the 
 
            state of affairs of the workmens' compensation system that 
 
            while various insurance companies and attorneys are deciding 
 
            on who is responsible for claimant's injury, that the injury 
 
            continues to progress resulting in further permanent 
 
            impairment.  Dr. Murphy stated in this letter of December 
 
            31, 1989, that he recommended surgery back on May 30, 1991 
 
            (ex. 5).  However, there is no office note or letter from 
 
            Dr. Murphy on that date in evidence.    
 
            
 
                 In summary, Dr. Murphy recommended surgery on May 30, 
 
            1991 (ex. 5).  He further stated the need for surgery was 
 
            clearly related to claimant's job duties for this employer 
 
            when he utilized a high pressure hose.  Dr. Murphy 
 
            unequivocally told defendants' counsel that he disagreed 
 
            with her denial of this claim (ex. O).  Dr. Murphy was the 
 
            physician retained by defendants to perform an independent 
 
            medical examination on their behalf.  Thus, defendants 
 
            refused to respect the opinion of their own independent 
 
            evaluator and refused to follow his advice.  
 
            
 
                 Dr. Duncan, claimant's family physician, clearly 
 
            recommended surgery on July 17, 1991, after conservative 
 
            treatment and a change of jobs did not relieve the condition 
 
            which he stated was caused by claimant's employment with 
 
            this employer arising out of the use of the water pressure 
 
            hose (ex. N).
 
            
 
                 Claimant testified that in May or June of 1991, Dr. 
 
            Duncan interpreted Dr. Murphy's opinion and concurred in it.  
 
            Claimant said that Dr. Duncan told him to consider surgery; 
 
            otherwise, he could suffer damage to his arm for life.  
 
            Claimant related that Dr. Duncan recommended that claimant 
 
            see Timothy M. Zoellner, M.D., in Sioux Falls, South Dakota.  
 
            Claimant testified that he also preferred to see a doctor 
 
            closer to home.
 
            
 
                 Dr. Zoellner recorded that he first saw claimant on 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            July 23, 1991, and diagnosed compression of the ulnar nerve 
 
            at the elbow (ex. W, p. 2).  On January 13, 1992, Dr. 
 
            Zoellner recorded that the latest EMG and nerve conductions 
 
            did suggest cubital tunnel.  On January 30, 1992, Dr. 
 
            Zoellner performed a right ulnar nerve transposition, right 
 
            elbow (ex. W, p. 1).  
 
            
 
                 Claimant did not testify as to how long he was off work 
 
            or when he went back to work after the surgery.
 
            
 
                 On February 10, 1992, Dr. Zoellner said claimant should 
 
            not work (ex. W, p. 1).  On February 24, 1992, he considered 
 
            returning claimant to work on light duty in two weeks (ex. 
 
            Q, p. 2).  On March 6, 1992, he reported that claimant had 
 
            excellent motor function and full range of motion of the 
 
            elbow but still had some numbness in his small finger.  
 
            
 
                 Claimant continued to see Dr. Zoellner on March 27, 
 
            1992, April 17, 1992, and July 14, 1992, with continued 
 
            complaints of numbness in his small finger and joint 
 
            stiffness in his elbow, wrist and hand, as well as 
 
            paresthesias and hypersensitivity in the hypothenar eminence 
 
            in the wrist.  On July 14, 1992, Dr. Zoellner diagnosed 
 
            possible nerve compression at the wrist and ordered a repeat 
 
            EMG and nerve conduction study to assess this (ex. Q, p. 2).
 
            
 
                 On August 18, 1992, Dr. Zoellner recorded that claimant 
 
            complained of persistent paresthesias in his right forearm, 
 
            wrist and hand, which was confirmed by his own examination 
 
            even though the EMG and nerve conductions were essentially 
 
            normal.  He concluded that claimant may be having some 
 
            regenerative phenomena or persistent residual mild scarring.  
 
            He declined to give a permanent impairment rating for ulnar 
 
            nerve entrapment and release with mild residual paresthesias 
 
            until his follow-up examination in two or three months (ex. 
 
            W, p. 2).  The date of the hearing was August 26, 1992.
 
            
 
                 Claimant saw Joel T. Cotton, M.D., a neurologist in 
 
            Omaha on July 17, 1992 at the request of defendants.  
 
            Claimant complained of some partial loss of sensation in the 
 
            fourth and fifth fingers of the right hand, some discomfort 
 
            in the right elbow and impaired grip strength in the right 
 
            palm over the site of the original numbness.  Dr. Cotton's 
 
            examination found normal strength in the right arm 
 
            proximally and distally and specifically in all innervated 
 
            muscles in the right hand.  He did verify diminished 
 
            sensation in the fourth and fifth fingers of the right hand.  
 
            His clinical impression was a mild loss of sensation in the 
 
            fourth and fifth fingers of the right hand in the 
 
            distribution of the ulnar nerve and he judged that this 
 
            abnormality was mild.  He found no loss of strength, 
 
            dexterity or atrophy in the muscles of the right hand 
 
            innervated by the ulnar nerve.  He found no additional 
 
            evidence of physical injury to the claimant's right upper 
 
            extremity, shoulder or neck.  Dr. Cotton assessed a 5 
 
            percent permanent impairment of the right upper extremity as 
 
            a result of his previous right ulnar neuropathy based upon 
 
            the Guides to the Evaluation of Permanent Impairment, 3d ed. 
 
            revised, table 14, page 46 (ex. 4, pp. 1-3).  Dr. Cotton 
 
            contended that Dr. Duncan's assessment of a 33 percent 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            permanent impairment back on October 19, 1989, was invalid 
 
            because it was not based upon irreversible damage which had 
 
            failed to respond to treatment at that time (ex. 4, p. 3).
 
            
 
                 Dr. Cotton remarked that claimant's symptoms subsided 
 
            when he ceased to work for employer and this was verified by 
 
            claimant's testimony and the EMG comparisons between July 3, 
 
            1989 and April 2, 1990.  Dr. Cotton, like Dr. Duncan and Dr. 
 
            Murphy, concluded that claimant's employment for the city of 
 
            Le Mars caused him material and significant aggravation of 
 
            the preexisting condition which occurred during his 
 
            employment for this employer.  He further concluded that 
 
            employment for the city of Le Mars was a material and 
 
            significant factor in necessitating the right ulnar 
 
            transposition performed on January 30, 1992 (ex. 4, p. 4).
 
            
 
                 Based upon the foregoing evidence, it is determined 
 
            that the work performed by claimant for employer, in 
 
            particular, the use of the water pressure gun, was a primary 
 
            cause of claimant's injury to his right arm and hand.  Both 
 
            Dr. Duncan and Dr. Murphy stated that claimant's employment 
 
            for this employer, using the water pressure gun, was the 
 
            cause of the injury to claimant's right arm and hand.  Dr. 
 
            Zoellner proceeded on the same history and suggested no 
 
            other cause for claimant's injury.  Dr. Cotton also 
 
            proceeded on the same history and suggested no other cause 
 
            for the injury to claimant's right arm and hand.  Claimant 
 
            testified that he felt that the use of the water pressure 
 
            gun was the cause of this injury because he first detected a 
 
            problem when he was unable to hold the gun as long as it was 
 
            required in order to perform his job.  The evidence is 
 
            overwhelming that the use of the water pressure gun was (1) 
 
            the cause of the injury to claimant's right arm and hand, 
 
            (2) the corrective surgery that was performed and (3) the 
 
            residual permanent disability in his right hand. 
 
            
 
                 Defendants assert that claimant's continued employment 
 
            with the city of Le Mars further injured claimant's right 
 
            arm and hand.  Dr. Duncan, Dr. Murphy and Dr. Cotton all 
 
            concur in this proposition.  Nevertheless, the overwhelming 
 
            weight of the evidence establishes that this injury to the 
 
            right arm and hand originated during claimant's nine years 
 
            of employment with employer and more specifically, during 
 
            the last four or five years and sometime after 1984 and 
 
            1985, from using the water pressure gun.  
 
            
 
                 Claimant's employment with this employer need not be 
 
            the sole cause of his injury, impairment and disability.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result.  It only needs to be one cause; it does 
 
            not have to be the only cause.  Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980).  In view of the medical 
 
            evidence provided by Dr. Duncan and Dr. Murphy, it can 
 
            safely be stated that there is apparent to the rational 
 
            mind, upon consideration of all the circumstances, that 
 
            there is a causal connection between the conditions under 
 
            which the work was required to be performed and the 
 
            resulting injury.  Burt v. John Deere Waterloo Tractor 
 
            Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  Causal 
 
            connection is primarily in the realm of the expert witness 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            and both Dr. Duncan and Dr. Murphy, the former being 
 
            claimant's family physician and the latter being defendants' 
 
            examiner and evaluator, unequivocally found that claimant's 
 
            use of the water pressure gun while working for this 
 
            employer was the cause of this injury and resulting 
 
            disability.  Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967); Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
            
 
                 The injury is directly traceable to claimant's 
 
            employment activities with this employer.  Langford v. 
 
            Kellar Excavating and Grading, Inc., 191 N.W.2d 667 (Iowa 
 
            1971). 
 
            
 
                 Moreover, if defendants desire an apportionment of the 
 
            disability, the burden of proof is upon the defendants to 
 
            show how much of the disability is to be pro-rated to the 
 
            second employer.  Varied Enterprises v. Sumner, 353 N.W.2d 
 
            407 (Iowa 1984); Becker v. D & E Distributing Co., 247 
 
            N.W.2d 727, 731 (Iowa 1976); rule 14(f)(5) Iowa Rules of 
 
            Appellate Procedure.  Defendants have not demonstrated what 
 
            portion, if any, of claimant's disability is identifiable 
 
            and independently attributable to his subsequent work for 
 
            the city of Le Mars.  Bearce v. FMC Corporation, 465 N.W.2d 
 
            531 (Ia. App. 1991); Tussing v. George A. Hormel and Co., 
 
            417 N.W.2d 457 (Iowa 1990); Becker v. D & E Easy 
 
            Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976)
 
            
 
                 Moreover, defendants should not be permitted to deny 
 
            claimant workers' compensation medical benefits and weekly 
 
            benefits for a protracted period of time in contravention of 
 
            claimant's family physician and the advice of their own 
 
            selected medical examiner during which time claimant's 
 
            condition worsens, and then benefit from the denial of the 
 
            benefits to which claimant was rightfully entitled.  Based 
 
            upon the strong, clear, unequivocal and forceful testimony 
 
            of both Dr. Duncan and Dr. Murphy, it is not possible to say 
 
            there was a legitimate dispute on causation.  Juste v. 
 
            HyGrade Food Products Corp., IV Iowa Industrial Commissioner 
 
            Reports, 190 (App. Dec. 1984).  Nor can it be said that 
 
            claimant's entitlement to benefits was fairly debatable.  
 
            Saydel v. University of Iowa Physical Plant, file number 
 
            818849 (App. Dec. 1989); Stanley v. Wilson Foods, file 
 
            number 753405 (App. Dec. 1990); Heidt v. Linn Photo Co., 
 
            file number 916737 (App. Dec. 1992).
 
            
 
                 Wherefore, it is determined that the injury of June 12, 
 
            1989, was the cause of both temporary and permanent 
 
            disability.
 
            
 
                       ENTITLEMENT-TEMPORARY DISABILITY         
 
            
 
                 It is determined that claimant is entitled to two 
 
            periods of  temporary disability benefits.  The first period 
 
            is for one week and the second period is for 5.143 weeks, a 
 
            total of 6.143 weeks.  
 
            
 
                 During the first period, Dr. Duncan took claimant off 
 
            work completely on July 24, 1989 (ex. C) and did not return 
 
            him to work light duty until July 31, 1989 (ex. D).  This is 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            a period of seven days and claimant is entitled to one week 
 
            of temporary disability benefits.
 
            
 
                 During the second period, Dr. Zoellner performed 
 
            surgery on January 30, 1992 (ex. W, p. 2) and claimant was 
 
            off work through March 6, 1992 (ex. Q, p. 2).  Furthermore, 
 
            the parties stipulated in the prehearing report that 
 
            although entitlement cannot be stipulated, that claimant was 
 
            off work during this period of time.  This period of time is 
 
            five weeks and one day and claimant is entitled to 5.143 
 
            weeks of temporary disability benefits. This period of time 
 
            is supported by the evidence summarized above.    Therefore, 
 
            one week added to 5.143 weeks equals 6.143 weeks of 
 
            temporary disability benefits to which claimant is entitled.
 
            
 
                       ENTITLEMENT-PERMANENT DISABILITY            
 
            
 
                 It is determined that claimant is entitled to 12.5 
 
            weeks of permanent partial disability benefits based upon a 
 
            5 percent permanent impairment to the right upper extremity 
 
            (.05 times 250 equals 12.5).  
 
            
 
                 Dr. Duncan's evaluation of 33 percent disability of the 
 
            right arm determined on October 19, 1989, preceded the 
 
            surgery.  Furthermore, even though he states it is based 
 
            upon the American Medical Association's Guides to the 
 
            Evaluation of Permanent Impairment, he did not further 
 
            explain where he found this percentage rating in the Guides.  
 
            Moreover, the Guides rate impairment, not disability.  Dr. 
 
            Duncan's report gives no reliable guidance on the degree of 
 
            "impairment," nor did he say the "disability" was permanent.
 
            
 
                 Dr. Cotton's five percent permanent impairment 
 
            evaluation was made on July 20, 1992, after the surgery was 
 
            performed and shortly before the hearing.  Dr. Cotton 
 
            specified that he found his rating on page 46, table 14, of 
 
            the Guides to the Evaluation of Permanent Impairment, 3d ed. 
 
            revised.
 
            
 
                 Dr. Zoellner refused to give a rating for the reason 
 
            that the symptoms were still changing and may be reoccurring 
 
            and, therefore, he felt a permanency rating at this time was 
 
            premature (ex. Q; ex. W, p. 2).
 
            
 
                 Wherefore, the best evidence and the only evidence in 
 
            the record of the amount of permanent impairment to 
 
            claimant's arm is the permanent impairment rating of Dr. 
 
            Cotton in the amount of 5 percent of the right upper 
 
            extremity which entitles claimant to 12.5 weeks of permanent 
 
            partial disability benefits.
 
            
 
                                 MEDICAL EXPENSES
 
            
 
                 Claimant submitted $2,643.50 in medical expenses.  An 
 
            itemized list of medical expenses is attached to the 
 
            prehearing report and reads as follows: (1) Midwest 
 
            Anesthesiology Services $400 (ex. F); (2) Sioux Falls 
 
            Surgical Center $850 (ex. T); (3) Sioux Falls Physical 
 
            Therapy Center $158.50 (ex. U); (4) Orthopedic and Sports 
 
            Medicine Clinic, P.C. $1235 (ex. V).  These expenses total 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            $2,643.50.  
 
            
 
                 Defendants dispute that these expenses are causally 
 
            connected to the injury of June 12, 1989.  
 
            
 
                 It is determined from the evidence summarized above 
 
            that the injury was the cause of the surgery on January 30, 
 
            1982, and was the cause of the expenses for the surgical 
 
            facility, the surgeon, the anesthesiologist, and the 
 
            subsequent physical therapy.  Dr. Duncan, Dr. Murphy and Dr. 
 
            Zoellner, all three, recommended surgery for this injury.  
 
            Surgery requires a surgical facility, a surgeon, anesthesia, 
 
            and in this case, the physical therapy was recommended by 
 
            the treating surgeon. 
 
            
 
                 Defendants have disputed that these expenses were for 
 
            reasonable and necessary medical treatment caused by the 
 
            injury of June 12, 1989.  
 
            
 
                 It is determined that the expenses of a surgical 
 
            facility, a surgeon, anesthesia, and the physical therapy 
 
            subsequent to surgery recommended by the treating surgeon 
 
            are reasonable and necessary expenses caused by the injury 
 
            of June 12, 1989.  Surgery was recommended by three doctors 
 
            and these are the normal surgical and post surgical 
 
            expenses.
 
            
 
                 The defendants dispute the reasonableness of the 
 
            charges itemized above.
 
            
 
                 Claimant's entitlement to medical expenses pursuant to 
 
            Iowa Code section 85.27 was designated as a hearing issue on 
 
            the hearing assignment order.  It was the determination of 
 
            this agency that designating Iowa Code section 85.27 as a 
 
            hearing issue on the hearing assignment and designating that 
 
            the reasonableness of the medical charges are a disputed 
 
            issue on the prehearing report and order approving the same 
 
            is sufficient to place the reasonableness of the medical 
 
            fees in issue.  McClellon v. Iowa Southern Utilities, file 
 
            number 894090 (App. Dec. 1992).  That decision further 
 
            restated the policy and precedent of this agency that when 
 
            the reasonableness of medical fees are disputed, that the 
 
            claimant bears the burden of proving that the medical fees 
 
            are reasonable.  Anderson v. High Rise Construction 
 
            Specialists, Inc., file number 850096 (App. Dec. 1990).
 
            
 
                 The McClellon case further determined that it is not 
 
            defendants burden to show that the medical expenses were not 
 
            reasonable; but rather it is claimant's burden to prove that 
 
            the medical charges are reasonable.  Furthermore, in order 
 
            for claimant to prevail on the issue of reasonableness of 
 
            medical bills, claimant must produce some evidence which 
 
            proves that the bills are reasonable.
 
            
 
                 McClellon further determined that (1) payment of the 
 
            bills by claimant is not evidence that the bills are 
 
            reasonable; (2) that the good reputation of a medical 
 
            facility is not sufficient evidence to support a finding 
 
            that the medical charges are reasonable; (3) that there is 
 
            no inference that the medical treatment administered by a 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            licensed or board certified physician is reasonable; and (4) 
 
            that agency expertise and experience in numerous other cases 
 
            is not sufficient to support a finding that the medical 
 
            charges are reasonable.
 
            
 
                 In this case, as in the McClellon case, claimant failed 
 
            to introduce any evidence to establish that the fees were 
 
            reasonable.  
 
            
 
                 The Anderson and McClellon rule was moderated slightly 
 
            in the case of Schneider v. Prairie Contractors, Inc., file 
 
            number 869747 (App. Dec. 1992) where it was held that 
 
            payment of the medical fees by claimant can constitute 
 
            evidence of the reasonableness and in the absence of 
 
            contrary evidence this is sufficient to carry the claimant's 
 
            burden of proof on this issue.  The Schneider decision 
 
            states that the McClellon decision is overruled on this 
 
            limited ground.  However, in this case, there was no 
 
            evidence that claimant paid these medical expenses and fees.  
 
            Midwest Anesthesiology Services appears to be totally unpaid 
 
            (ex. S).  An unknown insurance carrier paid $536 of the $850 
 
            charge of the Sioux Falls Surgical Center (ex. T).  Aetna 
 
            Insurance paid $27.20 on the physical therapy bill and 
 
            claimant himself paid $20 of it, but the bulk of the bill 
 
            remains unpaid (ex. U).  Apparently, large portions of the 
 
            Orthopedic and Sports Medicine bill have been paid or are 
 
            expected to be paid because the bill only shows $179 due 
 
            from their total charges of $1235.  Thus, it would appear 
 
            that payment was either made or expected to be received from 
 
            an insurance carrier because the bill shows that three 
 
            claims were filed.  Claims are not usually filed against 
 
            individuals.  Rather, individuals are billed.  Thus, it 
 
            would appear that claimant cannot fall within the limited 
 
            exception to the Anderson and McClellon rule provided by the 
 
            Schneider case. 
 
            
 
                 The claimant also makes a claim for travel expenses for 
 
            five trips from his home in Le Mars to Sioux Falls, a 180 
 
            mile trip in the amount of $229.50.  In can be determined 
 
            from the evidence that claimant made trips to Sioux Falls to 
 
            see Dr. Zoellner on January 23, 1991, January 13, 1992, 
 
            January 30, 1992, February 10, 1992, February 24, 1992, 
 
            March 6, 1992, March 27, 1992, April 17, 1992, July 14, 
 
            1992, and February 10, 1992.  This constitutes ten trips to 
 
            Sioux Falls to see Dr. Zoellner.  Official notice is taken 
 
            of the fact that it is approximately 90 miles to Sioux 
 
            Falls, South Dakota, from Le Mars, Iowa, and that round trip 
 
            mileage would be approximately 180 miles and that claimant 
 
            is entitled to at least five trips from Le Mars to Sioux 
 
            Falls and back.  Five times 180 miles equals 900 miles.  The 
 
            allowable mileage rate is 21 cents per mile.  This gives 
 
            claimant an entitlement to $189 for five round trips to 
 
            Sioux Falls, South Dakota.  
 
            
 
                 Wherefore, it is determined that claimant is entitled 
 
            to $189 medical mileage.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            principles of law, these conclusions of law are made:
 
            
 
                 That the injury of June 12, 1989, was the cause of both 
 
            temporary and permanent disability.  Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. 
 
            Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant is entitled to the full seven days or one 
 
            week of temporary disability benefits from July 24, 1989 
 
            through July 30, 1989, because this injury resulted in 
 
            permanent partial disability.  Iowa Code sections 85.32 and 
 
            85.33(1).
 
            
 
                 That claimant is entitled to five weeks and one day of 
 
            healing period benefits from the date of the surgery on 
 
            January 30, 1992 through March 6, 1992, which is a period 
 
            that the parties stipulated that the claimant was off work 
 
            and which period is supported by the medical evidence.  Iowa 
 
            Code section 85.34(1).
 
            
 
                 That claimant is entitled to 12.5 weeks of permanent 
 
            partial disability benefits based upon a five percent 
 
            permanent impairment to his right arm.  Iowa Code section 
 
            85.34(2)(m).
 
            
 
                 That the injury was the cause of the expenses incurred 
 
            for a surgical facility, a surgeon, anesthesiology, and the 
 
            physical therapy subsequent to surgery ordered by the 
 
            treating surgeon and that this treatment was reasonable 
 
            treatment for the injury of June 12, 1989.  Iowa Code 
 
            section 85.27.
 
            
 
                 That claimant did not prove the reasonableness of the 
 
            charges of the medical providers and, therefore, claimant is 
 
            not entitled to recover these medical expenses.  Anderson v. 
 
            High Rise Construction Specialists, Inc., file number 850096 
 
            (App. Dec. 1990); McClellon v. Iowa Southern Utilities, file 
 
            number 894090 (App. Dec. 1992); Schneider v. Prairie 
 
            Contractors, Inc., file number 869747 (App. Dec. 1992).
 
            
 
                 That claimant did prove the reasonableness of five 
 
            round trips to Sioux Falls, South Dakota, and back and is 
 
            entitled to $189 in medical mileage.  Iowa Code section 
 
            85.27.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant one week of healing 
 
            period benefits for the period from July 24, 1989 through 
 
            July 30, 1989, and five point one four three (5.143) weeks 
 
            of healing period benefits for the period from January 30, 
 
            1992 through March 6, 1992, a total of six point one four 
 
            three (6.143) weeks of healing period benefits at the 
 
            stipulated rate of two hundred seventy-one and 70/100 
 
            dollars ($271.70) per week in the total amount of one 
 
            thousand six hundred sixty-nine and 05/100 dollars 
 
            ($1,669.05) commencing on July 24, 1989, for one week and 
 
            interrupted by the period when claimant worked, but 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            commencing again on January 30, 1992.
 
            
 
                 That defendants pay to claimant twelve point five 
 
            (12.5) weeks of permanent partial disability benefits at the 
 
            stipulated rate of two hundred seventy-one and 70/100 
 
            dollars ($271.70) per week based upon a five (5) percent 
 
            permanent impairment to the right arm in the total amount of 
 
            three thousand three hundred  ninety-six and 25/100 dollars 
 
            ($3,396.25) commencing on March 7, 1992.
 
            
 
                 That defendants are entitled to a credit for three (3) 
 
            days of workers' compensation benefits paid to claimant 
 
            prior to hearing which is computed at point four two nine 
 
            (.429) weeks times the rate used at that time of two hundred 
 
            sixty-two and 12/100 dollars ($262.12) in the total amount 
 
            of one hundred twelve and 45/100 dollars ($112.45).
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That defendants pay claimant medical mileage in the 
 
            amount of one hundred eighty-nine dollars ($189).  
 
            
 
                 That the costs of this action are charged to defendants 
 
            pursuant to Iowa Code section 86.40 and rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            Mr. Robert J. Dull
 
            Attorney at Law
 
            38 1st Ave NW
 
            Le Mars, Iowa  51031
 
            
 
            Ms. Rita C. Grimm
 
            Mr. Thomas Plaza
 
            Attorneys at Law
 
            PO Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                          51108.50, 51401, 51402.40, 
 
                                          52209, 51802, 51803, 1402.60, 
 
                                          2501, 2700, 1806
 
                                          Filed September 16, 1992
 
                                          Walter R. McManus, Jr.
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JERRY BIEZUNS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 924582
 
            HARKER'S INC.,                :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE INSURANCE,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51108.50, 51401, 51402.40, 52209
 
            It was determined that the injury was the cause of temporary 
 
            and permanent disability based upon the testimony of 
 
            claimant's family physician and also defendant's choice of 
 
            two physicians.
 
            
 
            51802
 
            Claimant was awarded healing period benefits for the time 
 
            off work.
 
            
 
            51803
 
            Claimant awarded five percent permanent impairment of the 
 
            right arm based upon defendant's second physician and 
 
            independent evaluator.  There were several defects in the 
 
            thirty-three percent rating of claimant's family physician.
 
            
 
            1402.60, 2501, 2700
 
            It was determined that claimant's medical expenses were 
 
            caused by this injury and that the treatment of ulnar nerve 
 
            surgery was reasonable but claimant could not be awarded his 
 
            medical expenses because defendants disputed the 
 
            reasonableness of the charges and claimant presented no 
 
            evidence, other than the bills themselves, to prove that the 
 
            charges were reasonable.  Anderson, McClellon, and Schneider 
 
            which sets agency policy clearly prohibited claimant's 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            entitlement to an award for these expenses.
 
            
 
            1806  
 
            The evidence was clear and unequivocal that this injury was 
 
            the primary cause of the surgery and permanent disability.  
 
            Defendants submitted evidence that the subsequent employment 
 
            contributed to the surgery and disability but no 
 
            apportionment could be made could be made because defendants 
 
            submitted no evidence of what proportion was attributable to 
 
            the second job.  Bearce, Tussing, and Becker.