BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                                             
 
 S. RICHARD PREWITT,
 
 
 
      Claimant,
 
 
 
 vs.                                          FILE NO. 931128
 
                                                                                           :File Nos. 931128/876688
 
 FIRESTONE TIRE AND RUBBER                     A P P E A L
 
 COMPANY,                                                                                  óA P P E A L
 
                                             D E C I S I O N
 
      Employer,                                                                            .D E C I S I O N
 
 
 
 CIGNA INSURANCE COMPANIES,    
 
 
 
      Insurance Carrier,      
 
      Defendants.
 
                                  
 
 
 
 The record, including the transcript of the hearing before the 
 
 deputy and all exhibits admitted into the record, has been 
 
 reviewed de novo on appeal.
 
 
 
                              ISSUES
 
 
 
The issues on appeal are:
 
 
 
 Whether claimant proved that the injury of September 30, 1987 was 
 
 the cause of a permanent disability to the body as a whole.
 
 
 
 Whether claimant proved that the iniury of September 8, 1988 was 
 
 the cause of a permanent disability to the right arm or hand.
 
 
 
                         FINDINGS OF FACT
 
 
 
      Claimant worked for Firestone off and on since 1984. Claimant 
 
 was working as a tire builder trainee at the time of the first 
 
 work injury in this case. Tire building is one of the most 
 
 important and highest paying production jobs at Firestone. Tire 
 
 builders earned from $9.80 per hour to over $21.00 per hour 
 
 according to management and union officials testifying in this 
 
 case. Claimant was earning $9.83 as a trainee at the time of the 
 
 injury.
 

 
 
 
 
 
 
 
 PREWITT v. FIRESTONE TIRE AND RUBBER CO. 
 
 Page 2
 
 
 
 
 
 
 
      Tire builder trainees are closely monitored by management and 
 
 the union at Firestone. Performance records are kept on each 
 
 trainee. Whether a trainee attains journeyman's status or what is 
 
 called "made out" status or whether he or she will be dropped from 
 
 the training program is a decision made jointly between the union 
 
 and management. Due to work restrictions imposed after the first 
 
 injury, claimant was unable to continue in the training program 
 
 and was transferred to a forklift operator job. Claimant's 
 
 supervisor testified at hearing that due to claimant's lack of 
 
 ability, he would not have successfully completed his training and 
 
 achieved journeyman's status as a tire builder in the supervisor's 
 
 opinion. The union president testified that he and his stewards 
 
 closely monitored all trainees and that he personally reviewed the 
 
 evaluation records of claimant. It was the president's opinion 
 
 that claimant would be a tire builder today had the shoulder 
 
 injury not occurred.
 
 
 
 On or about September 30, 1987, claimant injured himself while 
 
 pushing on tire plies. Claimant received immediate medical 
 
 treatment in the form of medication and restricted duty. When 
 
 claimant failed to improve, claimant was referred to a board 
 
 certified orthopedic surgeon, Scott Neff, D.O., in November 1987. 
 
 Dr. Neff diagnosed a shoulder impingement and ultimately treated 
 
 claimant with a surgical decompression of the right shoulder and 
 
 excision of the distal clavicle in the shoulder. Following 
 
 surgery, claimant underwent extensive physical therapy and work 
 
 hardening. Claimant returned to light duty work at Firestone in 
 
 April 1988.
 
 
 
 Dr. Neff indicated that claimant had a full range of motion and 
 
 normal strength in his shoulder following surgery for the 
 
 September 30, 1987 injury. His opinion was corroborated by Thomas 
 
 W. Bower, L.P.T. (Joint exhibit 6) He also indicated that 
 
 claimant's impairment was not related to the body as a whole. He 
 
 found that there were no tears of the rotator cuff. Dr. Neff also 
 
 found that claimant has degenerative disease in the cervical spine 
 
 which did not have any direct relationship to his work activity. 
 
 Dr. Neff rated claimant as having a five percent impairment of the 
 
 upper extremity. (Joint Ex. 5)
 
 
 
 Claimant was evaluated by Martin S. Rosenfeld, D.O. Dr. Rosenfeld 
 
 indicated that claimant lacked a few degrees of abduction of the 
 
 right shoulder and had pain with abduction and flexion. He 
 
 causally related claimant's impairments to his work injuries. Dr. 
 
 Rosenfeld rated claimant as having ten percent impairment of the 
 
 right upper extremity. He appears to attribute five of the total 
 
 ten percent impairment to loss of motion and other problems of the 
 
 shoulder. (Joint Ex. 10)
 
 
 
 The opinions of Dr. Neff will be given the greater weight of 
 
 evidence in this case. He was claimant's treating physician and
 

 
 
 
 
 
 
 
 PREWITT v. FIRESTONE TIRE AND RUBBER CO. 
 
 Page 3
 
 
 
 
 
 
 
 had numerous opportunities to examine claimant over a period of 
 
 time. Dr. Rosenfeld's opinions, those of evaluating physician, 
 
 will be given little weight. His opinions on causal connection are 
 
 not well explained. He specifically did not acknowledge claimant's 
 
 degenerative condition and how, if at all, his opinions on causal 
 
 connection were affected by that condition.
 
 
 
      Claimant~s disability resulting from the September 30, 1987 
 
 injury is a disability to the arm as a scheduled member. It 
 
 appears that Dr. Neff and Dr. Rosenfeld agree that the impairment 
 
 to claimant's arm is five percent.
 
 
 
 Claimant failed to show that any back or neck pain was work 
 
 related. Neither Dr. Neff nor a referring neurosurgeon, S. Randy 
 
 Winston, M.D., could find evidence of cervical injury or its work 
 
 relatedness. Claimant has degenerative disc disease of the spine.
 
 
 
 On or about September 8, 1988, claimant suffered another injury to 
 
 the right arm. This injury is unrelated to the previous injury. 
 
 During the summer of 1988, claimant began to notice numbness and 
 
 tingling of the fingers of his right hand. This condition was 
 
 diagnosed by Dr. Neff at the time as carpal tunnel syndrome due to 
 
 repetitive use of his hands in his work at Firestone. The date of 
 
 injury is when claimant left work to receive surglcal 
 
 decompression of this condition.
 
 
 
 It was the view of Dr. Neff that claimant had no impairment of the 
 
 right hand and wrist as a result of the carpal tunnel syndrome and 
 
 resulting surgery. (Ex. 14, pp. 17-18) Claimant testified that he 
 
 did not have any difficulty moving his fingers or his hand. He 
 
 also testified that his biggest problem was the palm of his hand. 
 
 (Tr., p. 50) Dr. Rosenfeld testified that it was difficult to say 
 
 whether his impairment rating was to the arm or hand. Dr. 
 
 Rosenfeld also testified that claimant's testimony correlated with 
 
 his examination. (Tr., pp. 85-86) It should be noted that joint 
 
 exhibit 9 is a copy of a letter by Scott E. Harmon, P.T., and that 
 
 a portion of that exhibit is unreadable and can be given no 
 
 weight.
 
 
 
 Given claimant's testimony and Dr. Rosenfeld's apparent acceptance 
 
 of it, it is difficult to say what was the basis of Dr. 
 
 Rosenfeld's opinion on permanency and rating of impairment. Dr. 
 
 Neff's opinion as treating physician should be given weight. There 
 
 is no reliable contrary opinion. His opinion is corroborated by 
 
 claimant's own testimony. Claimant does not have a permanent 
 
 disability as a result of his September 8, 1988 injury.
 

 
 
 
 
 
 
 
 PREWITT v. FIRESTONE TIRE AND RUBBER CO. 
 
 Page 4
 
 
 
 
 
 
 
                        CONCLUSIONS OF LAW
 
 
 
      The claimant has the burden of proving by a preponderance of 
 
 the evidence that the injury is a proximate cause of the 
 
 disability on which the claim is based. A cause is proximate if it 
 
 is a substantial factor in bringing about the result; it need not 
 
 be the only cause. A preponderance of the evidence exists when the 
 
 causal connection is probable rather than merely possible. 
 
 Blacksmith v. All-American Inc., 290 N.W.2d 348 (Iowa 1980); 
 
 Holmes v. Bruce Motor Freiqht, Inc., 215 N.W.2d 296 (Iowa 1974).
 
 
 
 The question of causal connection is essentially within the domain 
 
 of expert testimony. The expert medical evidence must be 
 
 considered with all other evidence introduced bearing on the 
 
 causal connection between the injury and the disability. The 
 
 weight to be given to any expert opinion is determined by the 
 
 finder of fact and may be affected by the accuracy of the facts 
 
 relied upon by the expert as well as other surrounding 
 
 circumstances. The expert opinion may be accepted or rejected, in 
 
 whole or in part. Sondaq v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); 
 
 Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
 
 
 An injury to a scheduled member may, because of after effects or 
 
 compensatory change, result in permanent impairment of the body as 
 
 a whole. Such impairment may in turn be the basis for a rating of 
 
 industrial disability. It is the anatomical situs of the permanent 
 
 injury or impairment which determines whether the schedules in 
 
 Iowa Code section 85.34(2)(a)-(t) are applied. Lauhoff Grain v. 
 
 McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, 
 
 Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber Co., 233 
 
 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores Co., 222 Iowa 
 
 272, 268 N.W. 598 (1936).
 
 
 
 To the extent the decision of Thomas v. Broadlawns Medical Center, 
 
 (Appeal Decision October 31, 1990, File nos. 812401, 716036) is 
 
 inconsistent with this decision, Thomas is overruled.
 
 
 
 When disability is found in the shoulder, a body as a whole 
 
 situation may exist. Alm v. Morris Barick Cattle Co., 240 Iowa 
 
 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar Mayer & Co., II 
 
 Iowa Industrial Commissioner Report 281 (App. 1982), a torn 
 
 rotator cuff was found to cause disability to the body as a whole.
 
 
 
 In this case claimant has proved a permanent disability to his 
 
 right arm as a result of the work injury on September 30, 1987. He 
 
 did not prove that the impairment or the disability extended into 
 
 the body as a whole. The treating physician, Dr.
 

 
 
 
 
 
 
 
 PREWITT v. FIRESTONE TIRE AND RUBBER CO. 
 
 Page 5
 
 
 
 
 
 
 
 Neff, whose opinion is relied upon, indicated that claimant had 
 
 normal range of motion and strength in his shoulder. Claimant has 
 
 proved an entitlement to a five percent disability to the right 
 
 arm.
 
 
 
      Claimant has not proved a permanent disability as a result of 
 
 the work injury of September 8, 1988. Dr. Neff, whose opinion is 
 
 again relied upon, indicated that claimant had no permanent 
 
 impairment of the hand. This opinion was corroborated by 
 
 claimant's own testimony. Claimant has not proved entitlement to 
 
 benefits for the September 8, 1988 injury.
 
 
 
 WHEREFORE, the decision of the deputy is affirmed in part and 
 
 reversed in part.
 
 
 
                              ORDER
 
 
 
      THEREFORE, it is ordered:
 
 
 
 That defendants are to pay unto claimant twelve point five (12.5) 
 
 weeks of permanent partial disability benefits at the rate of two 
 
 hundred eighty-two and 58/100 dollars ($282.58) per week from 
 
 April 19, 1988 for the September 30, 1987 injury.
 
 
 
 That claimant shall take nothing further from these proceedings 
 
 for the September 8, 1988 injury.
 
 
 
 That defendants shall pay accrued weekly benefits in a lump sum.
 
 
 
 That defendants shall pay interest on unpaid weekly benefits 
 
 awarded herein as set forth in Iowa Code section 85.30.
 
 
 
 That defendants are to be given credit for benefits previously 
 
 paid.
 
 
 
 That defendants shall pay the costs of this matter including the 
 
 transcription of the hearing and reimbursement to claimant for any 
 
 filing fee paid in this matter.
 
 
 
 That defendants shall file claim activity reports as required by 
 
 this agency pursuant to rule 343 IAC 3.1(2).
 
 
 
 Signed and filed this 12th day of August, 1992.
 
 
 

 
 
 
 
 
 
 
 PREWITT v. FIRESTONE TIRE AND RUBBER CO.
 
 Page 6
 
 
 
 
 
 
 
 
 
             
 
 
 
 
 
                                        BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
 
 
 
 
 Copies To:
 
 
 
 Mr. Robert W. Pratt
 
 Attorney at Law
 
 6959 University Ave.
 
 Des Moines, Iowa 50311
 
 
 
 Ms. Valerie A. Fandel
 
 Attorney at Law
 
 2700 Grand Ave., Ste 111
 
 Des Moines, Iowa 50312
 
 
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            S. RICHARD PREWITT,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 931128/876688
 
            FIRESTONE TIRE AND RUBBER     :
 
            COMPANY,                      :          A P P E A L
 
                                          :          
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANIES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.
 
            
 
                                      ISSUES
 
            
 
                 The issues on appeal are:
 
            
 
                 Whether claimant proved that the injury of September 
 
            30, 1987 was the cause of a permanent disability to the body 
 
            as a whole.
 
            
 
                 Whether claimant proved that the injury of September 8, 
 
            1988 was the cause of a permanent disability to the right 
 
            arm or hand.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Claimant worked for Firestone off and on since 1984.  
 
            Claimant was working as a tire builder trainee at the time 
 
            of the first work injury in this case.  Tire building is one 
 
            of the most important and highest paying production jobs at 
 
            Firestone.  Tire builders earned from $9.80 per hour to over 
 
            $21.00 per hour according to management and union officials 
 
            testifying in this case.  Claimant was earning $9.83 as a 
 
            trainee at the time of the injury.
 
            
 
                 Tire builder trainees are closely monitored by 
 
            management and the union at Firestone.  Performance records 
 
            are kept on each trainee.  Whether a trainee attains 
 
            journeyman's status or what is called "made out" status or 
 
            whether he or she will be dropped from the training program 
 
            is a decision made jointly between the union and management.  
 
            Due to work restrictions imposed after the first injury, 
 
            claimant was unable to continue in the training program and 
 
            was transferred to a forklift operator job.  Claimant's 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            supervisor testified at hearing that due to claimant's lack 
 
            of ability, he would not have successfully completed his 
 
            training and achieved journeyman's status as a tire builder 
 
            in the supervisor's opinion.  The union president testified 
 
            that he and his stewards closely monitored all trainees and 
 
            that he personally reviewed the evaluation records of 
 
            claimant.  It was the president's opinion that claimant 
 
            would be a tire builder today had the shoulder injury not 
 
            occurred.
 
            
 
                 On or about September 30, 1987, claimant injured 
 
            himself while pushing on tire plies.  Claimant received 
 
            immediate medical treatment in the form of medication and 
 
            restricted duty.  When claimant failed to improve, claimant 
 
            was referred to a board certified orthopedic surgeon, Scott 
 
            Neff, D.O., in November 1987.  Dr. Neff diagnosed a shoulder 
 
            impingement and ultimately treated claimant with a surgical 
 
            decompression of the right shoulder and excision of the 
 
            distal clavicle in the shoulder.  Following surgery, 
 
            claimant underwent extensive physical therapy and work 
 
            hardening.  Claimant returned to light duty work at 
 
            Firestone in April 1988.
 
            
 
                 Dr. Neff indicated that claimant had a full range of 
 
            motion and normal strength in his shoulder following surgery 
 
            for the September 30, 1987 injury.  His opinion was 
 
            corroborated by Thomas W. Bower, L.P.T.  (Joint exhibit 6)  
 
            He also indicated that claimant's impairment was not related 
 
            to the body as a whole.  He found that there were no tears 
 
            of the rotator cuff.  Dr. Neff also found that claimant has 
 
            degenerative disease in the cervical spine which did not 
 
            have any direct relationship to his work activity.  Dr. Neff 
 
            rated claimant as having a five percent impairment of the 
 
            upper extremity.  (Joint Ex. 5)
 
            
 
                 Claimant was evaluated by Martin S. Rosenfeld, D.O.  
 
            Dr. Rosenfeld indicated that claimant lacked a few degrees 
 
            of abduction of the right shoulder and had pain with 
 
            abduction and flexion.  He causally related claimant's 
 
            impairments to his work injuries.  Dr. Rosenfeld rated 
 
            claimant as having ten percent impairment of the right upper 
 
            extremity.  He appears to attribute five of the total ten 
 
            percent impairment to loss of motion and other problems of 
 
            the shoulder.  (Joint Ex. 10)
 
            
 
                 The opinions of Dr. Neff will be given the greater 
 
            weight of evidence in this case.  He was claimant's treating 
 
            physician and had numerous opportunities to examine claimant 
 
            over a period of time.  Dr. Rosenfeld's opinions, those of 
 
            evaluating physician, will be given little weight.  His 
 
            opinions on causal connection are not well explained.  He 
 
            specifically did not acknowledge claimant's degenerative 
 
            condition and how, if at all, his opinions on causal 
 
            connection were affected by that condition. 
 
            
 
                 Claimant's disability resulting from the September 30, 
 
            1987 injury is a disability to the arm as a scheduled 
 
            member.  It appears that Dr. Neff and Dr. Rosenfeld agree 
 
            that the impairment to claimant's arm is five percent.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant failed to show that any back or neck pain was 
 
            work related.  Neither Dr. Neff nor a referring 
 
            neurosurgeon, S. Randy Winston, M.D., could find evidence of 
 
            cervical injury or its work relatedness.  Claimant has 
 
            degenerative disc disease of the spine.
 
            
 
                 On or about September 8, 1988, claimant suffered 
 
            another injury to the right arm.  This injury is unrelated 
 
            to the previous injury.  During the summer of 1988, claimant 
 
            began to notice numbness and tingling of the fingers of his 
 
            right hand.  This condition was diagnosed by Dr. Neff at the 
 
            time as carpal tunnel syndrome due to repetitive use of his 
 
            hands in his work at Firestone.  The date of injury is when 
 
            claimant left work to receive surgical decompression of this 
 
            condition.
 
            
 
                 It was the view of Dr. Neff that claimant had no 
 
            impairment of the right hand and wrist as a result of the 
 
            carpal tunnel syndrome and resulting surgery.  (Ex. 14, pp. 
 
            17-18)  Claimant testified that he did not have any 
 
            difficulty moving his fingers or his hand.  He also 
 
            testified that his biggest problem was the palm of his hand.  
 
            (Tr., p. 50)  Dr. Rosenfeld testified that it was difficult 
 
            to say whether his impairment rating was to the arm or hand.  
 
            Dr. Rosenfeld also testified that claimant's testimony 
 
            correlated with his examination.  (Tr., pp. 85-86)  It 
 
            should be noted that joint exhibit 9 is a copy of a letter 
 
            by Scott E. Harmon, P.T., and that a portion of that exhibit 
 
            is unreadable and can be given no weight.
 
            
 
                 Given claimant's testimony and Dr. Rosenfeld's apparent 
 
            acceptance of it, it is difficult to say what was the basis 
 
            of Dr. Rosenfeld's opinion on permanency and rating of 
 
            impairment.  Dr. Neff's opinion as treating physician should 
 
            be given weight.  There is no reliable contrary opinion.  
 
            His opinion is corroborated by claimant's own testimony.  
 
            Claimant does not have a permanent disability as a result of 
 
            his September 8, 1988 injury.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects or compensatory change, result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn be the basis for a rating of industrial disability.  It 
 
            is the anatomical situs of the permanent injury or 
 
            impairment which determines whether the schedules in Iowa 
 
            Code section 85.34(2)(a)-(t) are applied.  Lauhoff Grain v. 
 
            McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. 
 
            Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 To the extent the decision of Thomas v. Broadlawns 
 
            Medical Center, (Appeal Decision October 31, 1990, File nos. 
 
            812401, 716036) is inconsistent with this decision, Thomas 
 
            is overruled.
 
            
 
                 When disability is found in the shoulder, a body as a 
 
            whole situation may exist.  Alm v. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949).  In Nazarenus v. Oscar 
 
            Mayer & Co., II Iowa Industrial Commissioner Report 281 
 
            (App. 1982), a torn rotator cuff was found to cause 
 
            disability to the body as a whole.
 
            
 
                 In this case claimant has proved a permanent disability 
 
            to his right arm as a result of the work injury on September 
 
            30, 1987.  He did not prove that the impairment or the 
 
            disability extended into the body as a whole.  The treating 
 
            physician, Dr. Neff, whose opinion is relied upon, indicated 
 
            that claimant had normal range of motion and strength in his 
 
            shoulder.  Claimant has proved an entitlement to a five 
 
            percent disability to the right arm.
 
            
 
                 Claimant has not proved a permanent disability as a 
 
            result of the work injury of September 8, 1988.  Dr. Neff, 
 
            whose opinion is again relied upon, indicated that claimant 
 
            had no permanent impairment of the hand.  This opinion was 
 
            corroborated by claimant's own testimony.  Claimant has not 
 
            proved entitlement to benefits for the September 8, 1988 
 
            injury.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed in 
 
            part and reversed in part.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants are to pay unto claimant twelve point 
 
            five (12.5) weeks of permanent partial disability benefits 
 
            at the rate of two hundred eighty-two and 58/100 dollars 
 
            ($282.58) per week from April 19, 1988 for the September 
 
            30, 1987 injury.
 
            
 
                 That claimant shall take nothing further from these 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            proceedings for the September 8, 1988 injury.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 That defendants shall pay interest on unpaid weekly 
 
            benefits awarded herein as set forth in Iowa Code section 
 
            85.30.
 
            
 
                 That defendants are to be given credit for benefits 
 
            previously paid.
 
            
 
                 That defendants shall pay the costs of this matter 
 
            including the transcription of the hearing and reimbursement 
 
            to claimant for any filing fee paid in this matter.  
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                      ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Ave.
 
            Des Moines, Iowa 50311
 
            
 
            Ms. Valerie A. Fandel
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
 
 
 
 
 
 
 
 
 
 
                                         5-1402.40, 5-1803, 5-1803.1
 
                                         Filed August 12, 1992
 
                                         Byron K. Orton
 
                              
 
 
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 S. RICHARD PREWITT,
 
 
 
      Claimant,
 
                               
 
 vs.
 
                                           File Nos. 931128/876688
 
 FIRESTONE TIRE AND RUBBER
 
  COMPANY,                                      A P P E A L
 
 
 
      Employer,                               D E C I S I O N
 
 
 
 and
 
 
 
 CIGNA INSURANCE COMPANIES,
 
 
 
      Insurance Carrier, 
 
      Defendants.
 
      
 
      
 
 5-1402.40: 5-1803
 
 
 
 Treating doctor's opinions were corroborated for one injury by 
 
 physical therapist and for the second injury by claimant's own 
 
 testimony. Treating doctor's opinions were accepted over 
 
 evaluating doctor who saw claimant only once. Claimant proved 
 
 permanent disability of the arm from first injury but did not 
 
 prove permanent disability from the second injury. The second 
 
 injury was carpal tunnel syndrome.
 
 
 
 5-1803.1
 
 
 
 Treating doctor opinion was accepted. It was the treating doctor's 
 
 opinion that claimant had full range of motion and strength of the 
 
 shoulder following work injury and surgery. Evaluating doctor 
 
 whose opinion was not accepted indicated a limited impairment of 
 
 the shoulder. The situs of the impairment determines the nature of 
 
 the disability. Thomas v. Broadlawns Medical Center, (file nos. 
 
 812401, 716036, Appeal Decision, October 31, 1990) was overruled 
 
 to the extent it was inconsistent with this case and other case 
 
 law.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                         5-1402.40, 5-1803, 5-1803.1
 
                                         Filed July 30, 1992
 
                                         Byron K. Orton
 
            
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            S. RICHARD PREWITT,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 931128/876688
 
            FIRESTONE TIRE AND RUBBER     :
 
            COMPANY,                      :          A P P E A L
 
                                          :          
 
                 Employer,                :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANIES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1402.40; 5-1803
 
            Treating doctor's opinions were corroborated for one injury 
 
            by physical therapist and for the second injury by 
 
            claimant's own testimony.  Treating doctor's opinions were 
 
            accepted over evaluating doctor who saw claimant only once.  
 
            Claimant proved permanent disability of the arm from first 
 
            injury but did not prove permanent disability from the 
 
            second injury.  The second injury was carpal tunnel 
 
            syndrome.
 
            
 
            5-1803.1
 
            Treating doctor opinion was accepted.  It was the treating 
 
            doctor's opinion that claimant had full range of motion and 
 
            strength of the shoulder following work injury and surgery.  
 
            Evaluating doctor whose opinion was not accepted indicated a 
 
            limited impairment of the shoulder.  The situs of the 
 
            impairment determines the nature of the disability.  Thomas 
 
            v. Broadlawns Medical Center, (file nos. 812401, 716036, 
 
            appeal decision, October 31, 1990) was overruled to the 
 
            extent it was inconsistent with this case and other case 
 
            law.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SOLOMON RICHARD PREWITT,      :
 
                                          :
 
                 Claimant,                :
 
                                          :    File Nos. 931128 & 876688
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            FIRESTONE TIRE AND RUBBER     :
 
            COMPANY,                      :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANIES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by S. 
 
            Richard Prewitt, claimant, against Firestone Tire & Rubber 
 
            Company, employer (hereinafter referred to as Firestone), 
 
            and Cigna Insurance Companies, defendants, for workers' com
 
            pensation benefits as a result of alleged injuries on 
 
            September 30, 1987 and September 8, 1988.  On February 4, 
 
            1991, a hearing was held on claimant's petition and the mat
 
            ter was considered fully submitted at the close of this 
 
            hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  Oral testimony and written exhibits were received 
 
            during the hearing from the parties.  The exhibits received 
 
            into the evidence are listed in the prehearing report.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  Claimant received the alleged injuries which arose 
 
            out of and in the course of his employment with Firestone.
 
            
 
                 2.  Claimant's entitlement to temporary total disabil
 
            ity or healing period benefits extends from February 9, 1988 
 
            through March 18, 1988 for the September 30, 1987 injury and 
 
            from September 8, 1988 through October 5, 1988 for the 
 
            September 8, 1988 injury.
 
            
 
                 3.  If the injury of September 8, 1988 is found to have 
 
            caused permanent disability, the type of disability is a 
 
            scheduled member disability to either the right hand or arm.
 
            
 
                 4.  If permanent disability benefits are awarded, they 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            shall begin as of April 19, 1988 for the September 30, 1987 
 
            injury and October 6, 1988 for the September 8, 1988 injury.
 
            
 
                 5.  Claimant's rate of weekly compensation shall be 
 
            $282.58 for the September 30, 1987 injury and $346.10 for 
 
            the September 8, 1988 injury.
 
            
 
                 6.  All requested medical benefits have been or will be 
 
            paid by defendants.
 
            
 
                                      issue
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding is the extent of claimant's entitle
 
            ment to permanent disability benefits for each injury.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants place claimant's credibility at issue as to the 
 
            nature and extent of the injury and disability.  From his 
 
            demeanor while testifying, claimant is found credible.  Many 
 
            of the following facts are based upon claimant's credible 
 
            testimony.
 
            
 
                 Claimant worked for Firestone off and on since 1984.  
 
            Claimant was working as a tire builder trainee at the time 
 
            of the first work injury in this case.  Tire building is one 
 
            of the most important and highest paying production jobs at 
 
            Firestone.  Tire builders earned from $9.80 per hour to over 
 
            $21.00 per hour according to management and union officials 
 
            testifying in this case.  Claimant was earning $9.83 as a 
 
            trainee at the time of the injury.
 
            
 
                 Tire builder trainees are closely monitored by manage
 
            ment and the union at Firestone.  Performance records are 
 
            kept on each trainee.  Whether a trainee attains journey
 
            man's status or what is called "made out" status or whether 
 
            he or she will be dropped from the training program is a 
 
            decision made jointly between the union and management.  Due 
 
            to work restrictions imposed after the first injury, 
 
            claimant was unable to continue in the training program and 
 
            was transferred to a fork lift operator job.  Claimant's 
 
            supervisor testified at hearing that due to claimant's lack 
 
            of ability, he would not have successfully completed his 
 
            training and achieved journeyman's status as a tire builder 
 
            in the supervisor's opinion.  The union president testified 
 
            that he and his stewards closely monitored all trainees and 
 
            that he personally reviewed the evaluation records of 
 
            claimant.  It was the president's opinion that claimant 
 
            would be a tire builder today had the shoulder injury not 
 
            occurred.  Regardless of whether or not claimant would have 
 
            remained in the training program, claimant certainly has 
 
            lost the opportunity to become a tire builder and has lost 
 
            the opportunity to enlist the union support in pursuit of 
 
            this status.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 On or about September 30, 1987, claimant injured his 
 
            right shoulder while pushing on tire plies.  Claimant 
 
            received immediate medical treatment in the form of medica
 
            tion and restricted duty.  When claimant failed to improve, 
 
            claimant was referred to a board certified orthopedic sur
 
            geon, Scott Neff, D.O., in November 1987.  Dr. Neff diag
 
            nosed a shoulder impingement and ultimately treated claimant 
 
            with a surgical decompression of the right shoulder and 
 
            excision of the distal clavicle in the shoulder.  Following 
 
            surgery, claimant underwent extensive physical therapy and 
 
            work hardening.  Claimant returned to light duty work at 
 
            Firestone in April 1988.
 
            
 
                 Due to permanent work restrictions imposed by his 
 
            physicians, claimant was compelled to bid on another job in 
 
            January 1989.  Claimant currently works in this job as a 
 
            fork lift truck operator.
 
            
 
                 The injury of September 30, 1987, was a cause of a 2-3 
 
            percent permanent partial impairment to the body as a whole.  
 
            After his return to work, claimant continued on light duty 
 
            until January 1989 when Dr. Neff imposed permanent restric
 
            tions against heavy, repetitive work above shoulder level 
 
            and directed that claimant leave tire building for the fork 
 
            lift job.  Despite an opinion from his licensed physical 
 
            therapist that claimant had no impairment, Dr. Neff opined 
 
            that due to the surgery, claimant suffered a five percent 
 
            permanent partial impairment to the arm as a result of the 
 
            injury.  Dr. Neff causally related his treatment, the 
 
            surgery, the permanent partial impairment of the work injury 
 
            to claimant's work at Firestone.  Dr. Neff's views on causal 
 
            connection are uncontroverted.  This injury, combined with 
 
            claimant's repetitive work at Firestone, was superimposed 
 
            upon a degenerative condition of the shoulder and resulted 
 
            in claimant's treatment and impairment.  It is found that 
 
            the injury and permanent disability extended beyond the arm 
 
            and into the body as a whole.  The surgery and impingement 
 
            decompression involves the surgical repair of and removal of 
 
            bone and tendon tissue in the shoulder beyond the arm bone.  
 
            Viewing the shoulder joint as a ball and socket joint, the 
 
            tissue removed in the surgery in part forms the socket of 
 
            the shoulder joint.  The percentage impairment finding was 
 
            based upon the views of Dr. Neff who converted the arm 
 
            impairment rating to the body as a whole.  There were con
 
            trary views in the record but Dr. Neff was the primary 
 
            treating orthopedic surgeon.
 
            
 
                 Claimant failed to show that any back or neck pain was 
 
            work related.  Neither Dr. Neff nor a referring neurosur
 
            geon, S. Wilson, M.D., could find evidence of cervical 
 
            injury or its work relatedness.  Claimant has degenerative 
 
            disc disease of the spine.
 
            
 
                 On or about September 8, 1988, claimant suffered 
 
            another injury to the right arm.  This injury is unrelated 
 
            to the previous shoulder injury.  During the summer of 1988, 
 
            claimant began to notice numbness and tingling of the fin
 
            gers of his right hand.  This condition was diagnosed by Dr. 
 
            Neff at the time as carpal tunnel syndrome due to repetitive 
 
            use of his hands in his work at Firestone.  The date of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            injury is when claimant left work to receive surgical decom
 
            pression of this condition.
 
            
 
                 The injury of September 8, 1988, is a cause of a four 
 
            percent permanent partial impairment to the right arm.  This 
 
            finding is made despite the view of Dr. Neff that claimant 
 
            had no impairment.  The finding is based upon the views of 
 
            another board certified orthopedic surgeon, Martin 
 
            Rosenfeld, D.O.  Dr. Rosenfeld's views were more convincing 
 
            than the views of Dr. Neff because Dr. Neff failed to rate 
 
            claimant's impairment based upon a loss of grip strength and 
 
            continuing pain.  This deputy commissioner can understand a 
 
            failure to rate subjective pain but an objective loss of 
 
            grip strength is measurable and certainly does result in a 
 
            loss of use of an extremity.  The finding that the injury 
 
            extended into the arm rather than being limited to the hand 
 
            was made because the carpal tunnel syndrome involved the 
 
            carpal tunnel and structures within that portion of the body 
 
            which extends beyond the hand and into the wrist or arm.
 
            
 
                 As a result of the work shoulder injury of September 
 
            30, 1987, claimant has suffered a 25 percent loss of earning 
 
            capacity.  The medical condition before the work injury was 
 
            excellent and claimant had no functional impairments or 
 
            ascertainable disabilities.  Claimant was fully able to per
 
            form physical tasks involving heavy or repetitive lifting 
 
            and use of his arms and shoulders.  This finding does not 
 
            take into account any loss of earning capacity as a result 
 
            of the carpal tunnel syndrome.  Claimant suffered no loss of 
 
            earning capacity as a result of the carpal tunnel syndrome 
 
            as he returned to the same job he was performing before this 
 
            syndrome occurred.
 
            
 
                 Due to the physical limitations imposed as a result of 
 
            the shoulder injury, claimant's medical condition prevents 
 
            him from any opportunity to qualify as a tire builder.  
 
            Claimant is permanently limited in his ability to find other 
 
            heavy production work.  Claimant is 42 years of age and has 
 
            a high school education.  Claimant's past employment outside 
 
            of Firestone primarily consists of heavy construction and 
 
            heavy oil rig work, the type of work he can no longer per
 
            form.  On the other hand, claimant's employer has accommo
 
            dated for his disability.  Claimant is currently earning 
 
            over $13 an hour in his fork lift operator job.  This job 
 
            appears to be suitable to the disability and as stable as 
 
            any other job at Firestone.  Claimant is currently perform
 
            ing well in this job.
 
            
 
                                conclusions of law
 
            
 
                 It was found that the shoulder condition was an injury 
 
            to the body as a whole rather than limited to the arm and it 
 
            was further found that the carpal tunnel syndrome was an 
 
            injury to the arm rather than to the hand.  Admittedly, 
 
            there is a conceptual problem in determining whether a dis
 
            ability should be measured functionally or industrially or 
 
            in determining which functional schedule should be used when 
 
            a major body joint is involved.  A shoulder injury can be a 
 
            loss of an arm or a loss of use to a body as a whole.  A 
 
            wrist injury can be an injury to the hand or an injury to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the arm.
 
            However, it has been held by the Iowa Supreme Court that the 
 
            determination as to which schedule to use in Iowa Code 
 
            section 85.34 is an analysis of the anatomical situs of the 
 
            permanent injury, not the situs of the disability or 
 
            impairment.  Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 
 
            1986); Blacksmith v. All-American, Inc., 290 N.W.2d 348 
 
            (Iowa 1980); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 
 
            N.W.2d 569 (1943).  Finally, it is well established in Iowa 
 
            that a shoulder injury is an injury to the body as a whole 
 
            and not to the arm.  Lauhoff, 395 N.W.2d 834 (Iowa 1986); 
 
            Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 
 
            161 (1949); Nazarenus v. Oscar Mayer & Co., II Iowa Indus. 
 
            Comm'r Rpt 281 (Appeal Decision 1982); Godwin v. Hicklin 
 
            G.M. Power, II Iowa Indus. Comm'r Rpt 170 (Appeal Decision 
 
            1981).
 
            
 
                 With reference to the September 30, 1987 injury, the 
 
            claimant has shown that the work injury was a cause of a 
 
            permanent physical impairment or limitation upon activity 
 
            involving the body as a whole.  The degree of permanent dis
 
            ability must be measured pursuant to Iowa Code section 
 
            85.34(2)(u).  However, unlike scheduled member disabilities, 
 
            the degree of disability under this provision is not mea
 
            sured solely by the extent of a functional impairment or 
 
            loss of use of a body member.  A disability to the body as a 
 
            whole or an "industrial disability" is a loss of earning 
 
            capacity resulting from the work injury.  Diederich v. 
 
            Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 
 
            (1935).  A physical impairment or restriction on work 
 
            activity may or may not result in such a loss of earning 
 
            capacity.  The extent to which a work injury and a resulting 
 
            medical condition has resulted in an industrial disability 
 
            is determined from examination of several factors.  These 
 
            factors include the employee's medical condition prior to 
 
            the injury, immediately after the injury and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  Olson v. Goodyear Service 
 
            Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  
 
            See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
            February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant has 
 
            suffered a 25 percent loss of earning capacity as a result 
 
            of the work injury of September 30, 1987.  Based upon such a 
 
            factual finding, claimant is entitled as a matter of law to 
 
            125 weeks of permanent partial disability benefits under 
 
            Iowa Code section 85.34(2)(u) which is 25 percent of 500 
 
            weeks, the maximum allowable number of weeks for an injury 
 
            to the body as a whole in that subsection.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 With reference to the September 8, 1988 injury, perma
 
            nent partial disability benefits are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability.  Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); 
 
            Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
            Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 
 
            1983).  When the result of an injury is loss to a scheduled 
 
            member, the compensation payable is limited to that set 
 
            forth in the appropriate subdivision of Code section 
 
            85.34(2).  Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961).  "Loss of use" of a member is equivalent 
 
            to 'loss' of the member.  Moses v. National Union C.M. Co., 
 
            194 Iowa 819, 184 N.W. 746 (1922).  Pursuant to Code section 
 
            85.34(2)(u) the industrial commissioner may equitably pro
 
            rate compensation payable in those cases wherein the loss is 
 
            something less than that provided for in the schedule.  
 
            Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a four percent permanent partial impairment or four 
 
            percent loss of use to his arm as a result of the work 
 
            injury of September 8, 1988.  Based upon such a finding, 
 
            claimant is entitled as a matter of law to 10 weeks of per
 
            manent partial disability benefits under Iowa Code section 
 
            85.34(2)(m) which is four percent of 250 weeks, the maximum 
 
            allowable number of weeks for an injury to the arm in that 
 
            subsection.
 
            
 
                                      order
 
            
 
                 1.  For the September 30, 1987 injury, defendants shall 
 
            pay to claimant one hundred twenty-five (125) weeks of per
 
            manent partial disability benefits at the rate of two hun
 
            dred eighty-two and 58/l00 dollars ($282.58) per week from 
 
            April 19, 1988.
 
            
 
                 2.  For the September 8, 1988 injury, defendants shall 
 
            pay ten (10) weeks of permanent partial disability benefits 
 
            at the rate of three hundred forty-six and 10/l00 dollars 
 
            ($346.10) per week from October 6, 1988.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            permanent partial disability benefits previously paid.
 
            
 
                 4.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 5.  Defendants shall pay the cost of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines  IA  50311
 
            
 
            Ms. Valerie A. Fandel
 
            Attorney at Law
 
            Terrace Center  STE 111
 
            2700 Grand
 
            Des Moines  IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803
 
                           Filed April 29, 1991
 
                           LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            SOLOMON RICHARD PREWITT,      :
 
                                          :
 
                 Claimant,                :
 
                                          :    File Nos. 931128 & 876688
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            FIRESTONE TIRE AND RUBBER     :
 
            COMPANY,                      :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANIES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803 - Nonprecedential
 
            Extent of permanent disability benefits.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         _________________________________________________________________
 
                                       :
 
         MARY DURHAM,                  :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 931130
 
         MASON & HANGER-SILAS MASON,   :
 
                                       :        A P P E A L
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         THE TRAVELERS 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.
 
         
 
                                      issues
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              I.  Did the deputy err in ruling that claimant 
 
              sustained an injury arising out of and in the course of 
 
              her employment that was causally connected to her 
 
              current disability?
 
         
 
              II.  Did the deputy err in awarding the claimant 
 
              permanent partial disability benefits equal to eighteen 
 
              per cent [sic] (18%) of the left arm?
 
         
 
              III.  Did the deputy err in awarding the claimant 
 
              section 85.27 medical expenses?
 
         
 
              IV.  Did the deputy err in ruling that claimant's claim 
 
              was not barred by the statute of limitations?
 
         
 
                                 findings of fact
 
         The findings of fact contained in the proposed agency decision 
 
         filed May 24, 1991 are adopted as final agency action.
 
         
 
                       
 
         
 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         conclusions of law
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed May 24, 1991 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.  Segments designated by brackets ([ ]) indicate 
 
         language that is in addition to the language of the proposed 
 
         agency decision.
 
         
 
              The first issue to address is whether claimant has timely 
 
         filed her complaint pursuant to section 85.26.
 
         
 
              In cases involving the cumulative injury rule, the Supreme 
 
         Court has determined that an injury occurs when an employee, 
 
         because of pain or physical inability, can no longer work.  
 
         McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 
 
         1985).
 
         
 
              The cumulative injury rule applies when disability develops 
 
         gradually or as a result of repeated trauma.  The compensable 
 
         injury is held to occur at the later time.  McKeever, supra.
 
         
 
              In the case at hand, claimant, on the face of the petition, 
 
         alleged an injury date of July 1, 1987.  There is no indication 
 
         that on that date, claimant was unable to work because of pain or 
 
         physical inability.  Nor is there any evidence that claimant 
 
         sought medical attention on that date.
 
         
 
              Claimant did receive medical treatment from Dr. Heber on 
 
         July 29, 1987.  At that time, claimant complained that her wrist 
 
         problems were the result of her duties at work.  Dr. Heber 
 
         testified she probably did tell claimant the carpal tunnel 
 
         syndrome was work related.  Dr. Heber treated claimant 
 
         conservatively through March of 1988.  She saw claimant on 29 
 
         separate occasions.
 
         
 
              [It is acknowledged claimant did not miss any work time due 
 
         to her alleged work injury.  It is also acknowledged that no 
 
         weekly benefits were paid to claimant for her alleged injury.  
 
         Under the discovery rule, claimant's time for filing her petition 
 
         for benefits under Iowa Code section 85.26 did not begin to run 
 
         until she knew her injury was both serious and work related.  Orr 
 
         v. Lewis Central School District, 298 N.W.2d 256 (Iowa 1980).
 
         
 
              Claimant's treating chiropractor opined there was permanency 
 
         and calculated an impairment rating on September 14, 1990.  
 
         Claimant filed her petition within two years of this date.  
 
         However, claimant was advised that her condition was work related 
 
         in July of 1987.  Claimant was clearly on notice that her 
 
         condition was work related at that point.  Her symptoms would 
 
         indicate to a reasonable person that the condition was serious.  
 
         Claimant was required under Iowa Code section 85.26 to file her 
 
         action for benefits within two years of learning that her 
 
         condition was both serious and work related.  Claimant's petition 
 
         was not filed until January 1990, which is more than two years 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         from July 1987, when claimant's doctor advised that her condition 
 
         was work related.  Claimant has failed to comply with Iowa Code 
 
         section 85.26.
 
         
 
              To use the point in time when claimant's doctor advised that 
 
         her condition was permanent and assigned a rating of impairment 
 
         as the date of injury would create an illogical dichotomy of 
 
         limitations periods between actions for injuries that result in 
 
         permanency and actions for injuries that result in temporary 
 
         disability only.  It would also not provide a clear demarcation 
 
         in cases with multiple ratings of impairment.  In addition, 
 
         claimants could determine their own periods of limitations by 
 
         prolonging the obtaining of a rating of impairment.  The better 
 
         rule, and the one suggested by Orr, is to utilize the point in 
 
         time when claimant knew or should have known that her condition 
 
         was work related.  In this case, that point in time was July of 
 
         1987.]
 
         
 
              WHEREFORE, the decision of the deputy is reversed.
 
         
 
                                      order
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall take nothing from these proceedings.
 
         
 
              Signed and filed this ____ day of February, 1993.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Rd, Box 1087
 
         Keokuk, IA  52632
 
         
 
         Ms. Vicki L. Seeck
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         111 East Third St.
 
         Davenport, IA  52801
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         5-1803; 2402
 
         Filed February 26, 1993
 
         Byron K. Orton
 
         MAM
 
         
 
                     before the iowa industrial commissioner
 
         _________________________________________________________________
 
                                       :
 
         MARY DURHAM,                  :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 931130
 
         MASON & HANGER-SILAS MASON,   :
 
                                       :        A P P E A L
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         THE TRAVELERS INSURANCE       :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         _________________________________________________________________
 
         
 
         5-1803
 
         Claimant sustained an 18 percent impairment to the left upper 
 
         extremity as a result of a cumulative trauma.
 
         
 
         2402
 
         Claimant suffered a cumulative injury.  However, claimant was 
 
         never compelled to leave work.  Held that claimant's date of 
 
         injury, for purposes of the statute of limitations under section 
 
         85.26, was the date on which her doctor advised that her  
 
         condition was work related.  Claimant failed to bring her action 
 
         within two years of this date.  Reversed deputy's determination 
 
         that two years began to run from later date when her doctor 
 
         advised that her condition was permanent and assigned a rating of 
 
         impairment.  Cases on discovery rule indicate that controlling 
 
         point in time is when the claimant was on notice she had suffered 
 
         a work related injury, not a later point when the exact extent of 
 
         the injury was known.  To use the rating of impairment as the 
 
         date of injury would create an illogical dichotomy of limitations 
 
         periods between actions for injuries that result in permanency 
 
         and actions for injuries that result in temporary disability 
 
         only.  It would also not provide a clear demarcation in cases 
 
         with multiple ratings of impairment, and would allow claimants to 
 
         extend their statute of limitations by delaying the obtaining of 
 
         a rating of impairment.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY DURHAM,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 931130
 
            MASON & HANGER-SILAS MASON,   :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Mary Durham, against her employer, Mason & 
 
            Hanger-Silas Mason Company, Inc., and its insurance carrier, 
 
            The Travelers Insurance Company, defendants.  The case was 
 
            heard on April 3, 1991, in Burlington, Iowa at the Des 
 
            Moines County Courthouse.  The record consists of the 
 
            testimony of claimant.  The record also consists of the 
 
            testimony of Dick Garnjobst.  Additionally, the record 
 
            consists of joint exhibits 1-9.  Also, at the hearing, it 
 
            was requested that the undersigned take official notice of 
 
            the file.  Such notice was taken.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            received an injury which arose out of and in the course of 
 
            employment; 2) whether there is a causal relationship 
 
            between the alleged injury and the disability; 3) whether 
 
            claimant is entitled to temporary disability/healing period 
 
            benefits or permanent partial disability benefits; 4) 
 
            whether claimant is entitled to medical benefits pursuant to 
 
            section 85.27; and 5) whether claimant's claim was timely 
 
            filed.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 Claimant is 60 years old.  She commenced her employment 
 
            with defendant-employer in March of 1966.  In 1983 or 1984, 
 
            claimant started stenciling shells.  She was required to 
 
            roll and weigh 100 pound shells and to use her left hand and 
 
            thumb to hold the stencil in place.  Claimant testified she 
 
            rolled approximately 100 to 300 shells per day using her 
 
            left arm and hand.  Claimant held this job for nearly two 
 
            years.
 
            
 
                 In 1985, claimant switched positions.  She was required 
 
            to place a shell on the loader.  This necessitated picking 
 
            up the shell with the left hand and removing the shell with 
 
            the right hand.  Claimant lifted more than 8 tons per day.
 
            
 
                 In 1987-1988, claimant was either stenciling shells or 
 
            mixing mines, both repetitive type jobs.
 
            
 
                 As of November 7, 1986, claimant sought medical 
 
            treatment from the field hospital located on site.  She 
 
            indicated to hospital personnel that she believed her 
 
            present job aggravated her condition.  Whirlpool therapy was 
 
            prescribed.  Claimant was not removed from work.  She 
 
            continued treatment with the field hospital through May 5, 
 
            1987.
 
            
 
                 Claimant treated with Honey Lou Heber, D.C., on July 
 
            29, 1987.  Dr. Heber treated claimant 29 times.  She 
 
            diagnosed claimant as having carpal tunnel accompanied by 
 
            radial tunnel of the left wrist.  She also diagnosed 
 
            claimant as having decreased disc space of C-5, C-6 and C-7.  
 
            Dr. Heber calculated a 16 percent impairment to the left 
 
            upper extremity.  Claimant testified she missed three days 
 
            of work due to her left upper extremity.
 
            
 
                 Claimant was also examined by Thomas A. Rexroth, D.C.  
 
            Dr. Rexroth diagnosed claimant's condition as:
 
            
 
                 X-RAYS:
 
            
 
                 X-rays showed a cervical kyphosis, osteoarthritic 
 
                 changes from C5 through C6.  There was also a L5 
 
                 retrolisthesis and severe degeneration of the L5 
 
                 disc with arthritis.  Wrist x-rays were not taken 
 
                 because they were previously taken and were found 
 
                 to be negative.
 
            
 
                 IMPRESSIONS:
 
            
 
                 Carpal tunnel syndrome with cervical segmental 
 
                 dysfunction and carpal capsulitis.
 
            
 
                 Claimant was also examined by Mitchell H. Paul, D.O., 
 
            on February 21, 1991.  Dr. Mitchell rated claimant as 
 
            follows:
 
            
 
                 February 28,1991
 
            
 
                 IMPAIRMENT RATING REGARDING MARY DURHAM
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Complete diagnostic study done with objective 
 
                 findings in Occupational Therapy outpatient done 
 
                 on 2/21/91.
 
            
 
                 Review of results as well as prior clinical 
 
                 evaluation of patient suggests she has a grade 2 
 
                 motor strength evaluation which represesnts [sic] 
 
                 approximately 20% weakness or 20% of the total 
 
                 loss.  She is at approximately 30% for total loss 
 
                 of range of motion based on a total of 50% for 
 
                 complete ankylosis.  The patient is approximately 
 
                 60% deficient in range of motion of the 
 
                 metacarpal/carpal joint in relationship to 
 
                 contralateral side.
 
            
 
                 Averaging these two instabilities together we get 
 
                 approximately 25% impairment of the thumb which 
 
                 equals 11% of the hand which is 10% of the upper 
 
                 extremity which represents approximately 6% of the 
 
                 whole person.
 
            
 
                 If additionally we take into account the carpal 
 
                 tunnel by itself we find that the patient's rating 
 
                 for impairment due to pain and for the loss of 
 
                 sensation would be a grade 3, (which is decreased 
 
                 sensation with or without pain which interferes 
 
                 with activities) and multiply that by a median 
 
                 nerve below the mid forearm with a complete 
 
                 maximum deficit being 40%, so 30% of 40% is 
 
                 approximately 12%.  That would represent 12% to 
 
                 the upper extremity which is 7% of the whole 
 
                 person.  Using combined values chart, combine 6 
 
                 and 7 and come up with a total value of 10 leaving 
 
                 us with a 10% total impairment of the whole person 
 
                 as a result of combined basilar thumb arthritis 
 
                 and carpal tunnel syndrome of the involved 
 
                 extremities.
 
            
 
                                conclusions of law
 
            
 
                 The first issue to address is whether claimant has 
 
            timely filed her complaint pursuant to section 85.26.
 
            
 
                 In cases involving the cumulative injury rule, the 
 
            Supreme Court has determined that an injury occurs when an 
 
            employee, because of pain or physical inability, can no 
 
            longer work.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368, 374 (Iowa 1985).
 
            
 
                 The cumulative injury rule applies when disability 
 
            develops gradually or as a result of repeated trauma.  The 
 
            compensable injury is held to occur at the later time.  
 
            McKeever, supra.
 
            
 
                 For example, in McKeever, claimant finally gave up his 
 
            job on May 1, 1981.  The statute of limitations began to run 
 
            from May 1, 1981.  Claimant filed his petition in August of 
 
            1981.  Claimant was well within the statute of limitations 
 
            period.  See, also Rathmel v. University of Iowa, I-3 Iowa 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Indus. Comm'r Dec. 680 (1985).
 
            
 
                 In the case at hand, claimant, on the face of the 
 
            petition, alleged an injury date of July 1, 1987.  There is 
 
            no indication that on that date, claimant was unable to work 
 
            because of pain or physical inability.  Nor is there any 
 
            evidence that claimant sought medical attention on that 
 
            date.
 
            
 
                 Claimant did receive medical treatment from Dr. Heber 
 
            on July 29, 1987.  At that time, claimant complained that 
 
            her wrist problems were the result of her duties at work.  
 
            Dr. Heber testified she probably did tell claimant the 
 
            carpal tunnel syndrome was work related.  Dr. Heber treated 
 
            claimant conservatively through March of 1988.  She saw 
 
            claimant on 29 separate occasions.
 
            
 
                 It is acknowledged claimant did not miss any work time 
 
            due to her alleged work injury.  It is also acknowledged 
 
            that no weekly benefits were paid to claimant for her 
 
            alleged injury.  Claimant did not have a compensable injury 
 
            until her treating chiropractor opined there was permanency 
 
            and the chiropractor calculated an impairment rating.  That 
 
            took place on September 14, 1990.  Claimant had two years to 
 
            file her claim.  Claimant filed her petition well within the 
 
            two year period.  Her petition was filed within the limits 
 
            set by McKeever.
 
            
 
                 The next issue to address is whether claimant sustained 
 
            an injury which arose out of and in the course of her 
 
            employment.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on September 14, 
 
            1990, which arose out of and in the course of her 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            14, 1990, is causally related to the disability on which she 
 
            now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 The opinions of experts need not be couched in 
 
            definite, positive or unequivocal language.  Sondag v. 
 
            Ferris Hardward, 220 N.W.2d 903 (Iowa 1974).  An opinion of 
 
            an expert based upon an incomplete history is not binding 
 
            upon the commissioner, but must be weighed together with the 
 
            other disclosed facts and circumstances.  Bodish, 257 Iowa 
 
            516, 133 N.W.2d 867 (1965).  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In 
 
            regard to medical testimony, the commissioner is required to 
 
            state the reasons on which testimony is accepted or 
 
            rejected.  Sondag, 220 N.W.2d 903 (1974).
 
            
 
                 Dr. Heber, the treating chiropractor, opined there was 
 
            the requisite causal connection between claimant's condition 
 
            and her work environment.  Dr. Heber testified in her 
 
            deposition:
 
            
 
                 A  My opinion is that Mary's work probably did 
 
                 cause her to have the problem that she's having 
 
                 today.
 
            
 
            (Exhibit 7, page 7, lines 19-20)
 
            
 
                 Another treating chiropractor, Thomas A. Rexroth, D.C., 
 
            opined claimant suffered from a preexisting arthritic 
 
            condition.  Dr. Rexroth ordered x-rays of claimant's right 
 
            thumb.  He opined the x-rays demonstrated "moderately 
 
            advanced degenerative joint disease at the distal middle and 
 
            proximal joints."
 
            
 
                 Mitchell H. Paul, D.O., a specialist in orthopedics and 
 
            sports medicine, wrote the following in his report of 
 
            December 4, 1990:
 
            
 
                 DIAGNOSIS:  Marked basilar thumb arthritis 
 
                 consistent with degenerative joint disease of the 
 
                 metacarpal/ carpal joint.  Additionally, the 
 
                 patient has carpal tunnel syndrome which is often 
 
                 times associated with severe basilar thumb 
 
                 arthritis.
 
            
 
                 I believe there are two questions to be answered 
 
                 here:  (1)  What is the source of the patient's 
 
                 problem; (2) what is the degree of disability and 
 
                 what future course can the patient take to improve 
 
                 her condition.  Basilar lumb [sic] arthritis can 
 
                 certainly be the result of repetative [sic] 
 
                 microtrauma.  Carpal tunnel is well known to be a 
 
                 result of repetative [sic] microtrauma.  This is a 
 
                 result of the type of work the patient is doing or 
 
                 simply the fact that she is aging, but it is 
 
                 difficult to say.  However, it is clear that the 
 
                 combination of the two injuries can be the result 
 
                 of repetative [sic] work involving the use of her 
 
                 thumb.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 After reviewing the medical reports, it is the 
 
            determination of the undersigned that claimant has sustained 
 
            a work related injury which arose out of and in the course 
 
            of her employment.  Claimant has also proven by a 
 
            preponderance of the evidence that her work injury is 
 
            causally related to her condition.
 
            
 
                 The third issue to address is the nature and extent of 
 
            claimant's permanency, if any.  The right of a worker to 
 
            receive compensation for injuries sustained which arose out 
 
            of and in the course of employment is statutory. The statute 
 
            conferring this right can also fix the amount of 
 
            compensation to be paid for different specific injuries, and 
 
            the employee is not entitled to compensation except as 
 
            provided by the statute.  Soukup v. Shores Co., 222 Iowa 
 
            272, 268 N.W. 598 (1936).
 
            
 
                 Dr. Heber has calculated a 16 percent impairment to the 
 
            upper extremity based upon Applied Spinal Disability by 
 
            (first name unknown) Mazion, D.C.  Dr. Rexroth did not 
 
            calculate an impairment rating.
 
            
 
                 Dr. Paul determined claimant's impairment rating as 
 
            aforementioned.
 
            
 
                 After considering the above, as well as after observing 
 
            the claimant, the undersigned, using agency expertise, 
 
            determines claimant has an 18 percent impairment to the left 
 
            upper extremity.  Claimant is entitled to 45 weeks of 
 
            benefits at the stipulated rate of $249.59 per week.  The 
 
            commencement date for those benefits is September 14, 1990, 
 
            the date the impairment rate was calculated.
 
            
 
                 Claimant is not entitled to any healing period benefits 
 
            since there is no showing that she has missed any work due 
 
            to her work injury.
 
            
 
                 The final issue to address is whether claimant is 
 
            entitled to medical benefits pursuant to section 85.27.  
 
            This section provides in relevant portion:
 
            
 
                 The employer, for all injuries compensable under 
 
                 this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.  The employer shall also furnish 
 
                 reasonable and necessary crutches, artificial 
 
                 members and appliances but shall not be required 
 
                 to furnish more than one set of permanent 
 
                 prosthetic devices.
 
            
 
                     ...
 
            
 
                 For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's  care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 This division has held that it is inconsistent to deny 
 
            liability and the obligation to furnish care on one hand, 
 
            and at the same time, to claim a right to choose the care.  
 
            Therefore, a denial of liability precludes an employer from 
 
            selecting the medical care.  Lewis E. Jones v. R. M. Boggs 
 
            Company, Inc., File No. 655193 (Arbitration Decisions - July 
 
            22, 1986); Kindhart v. Fort Des Moines Hotel, (Appeal 
 
            Decision, March 27, 1985); Barnhart v. MAQ Incorporated, I 
 
            Iowa Industrial Commissioner Report 16 (Appeal Decision 
 
            1981).
 
            
 
                 Here, claimant is requesting medical benefits for 
 
            expenses incurred with Dr. Heber.  Defendants denied 
 
            liability.  They cannot control the care.  The charges total 
 
            $711.65.  They appear reasonable and necessary, as well as 
 
            causally related to claimant's work injury.  Defendants are 
 
            liable for the entire costs incurred with Dr. Heber.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants are to pay forty-five (45) weeks of 
 
            permanent partial disability benefits commencing on 
 
            September 14, 1990, at the corrected stipulated rate of two 
 
            hundred forty-nine and 59/l00 dollars ($249.59) per week.
 
            
 
                 Defendants are responsible for the payment of medical 
 
            bills as aforementioned in the amount of seven hundred 
 
            eleven and 65/l00 dollars ($711.65).
 
            
 
                 Interest shall be paid pursuant to section 85.30.
 
            
 
                 Defendants are responsible for costs pursuant to rule 
 
            343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1991.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk  IA  52632
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            Davenport  IA  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803; 2402
 
                           Filed May 24, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY DURHAM,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 931130
 
            MASON & HANGER-SILAS MASON,   :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Claimant sustained an 18% impairment to the left upper 
 
            extremity as a result of a cumulative trauma.
 
            
 
            
 
            
 
            2402
 
            Where claimant sustained a cumulative trauma and where 
 
            claimant missed no work time, date of injury was held to be 
 
            date injury was determined to be permanent by medical 
 
            personnel and thus compensable.
 
            
 
 
         
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         ROBERT D. ROOKS, JR.,      
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                File No. 931137
 
         QUAKER OATS COMPANY,       
 
                                                A P P E A L
 
              Employer,   
 
              Self-Insured,    
 
                                               D E C I S I O N
 
         and         
 
                     
 
         SECOND INJURY FUND OF IOWA,     
 
                     
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         June 10, 1992 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1992.
 
         
 
         
 
         
 
         
 
                                     ________________________________
 
                                            BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert R. Rush
 
         Mr. Matthew J. Nagle
 
         Attorneys at Law
 
         P.O. Box 2457
 
         Cedar Rapids, Iowa 52406-2457
 
         
 
         Mr. James E. Shipman
 
         Mr. James M. Peters
 
         Attorneys at Law
 
         1200 MNB Bldg.
 
         Cedar Rapids, Iowa 52401
 
         
 
         Mr. Craig Kelinson
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                               9998
 
                                               Filed November 9, 1992
 
                                               Byron K. Orton
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ROBERT D. ROOKS, JR.,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                   File No. 931137
 
            QUAKER OATS COMPANY,       
 
                                                   A P P E A L
 
                 Employer,   
 
                 Self-Insured,    
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            SECOND INJURY FUND OF IOWA,     
 
                        
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed June 10, 
 
            1992.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
                   
 
                          
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ROBERT D. ROOKS, JR.,         :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 931137
 
                                          :
 
            QUAKER OATS COMPANY,          :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                 Self-Insured,            :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant Robert A. Rooks seeks benefits under the Iowa 
 
            Workers' Compensation Act upon his petition in arbitration 
 
            against defendant self-insured employer Quaker Oats Company 
 
            and the Second Injury Fund of Iowa.  His petition first 
 
            alleged an injury date of September 1988.  After being 
 
            ordered to plead a specific injury date, claimant filed an 
 
            amendment alleging an injury date of July 22, 1988.  At 
 
            hearing, his petition was amended without resistance to 
 
            allege an injury of September 6, 1990.
 
            
 
                 This cause came on for hearing in Cedar Rapids, Iowa, 
 
            on April 1, 1992.  The record consists of joint exhibits 1 
 
            through 5, claimant's exhibits 1 and 2, employer's exhibits 
 
            1 and 2 and Second Injury Fund's exhibits A through E, all 
 
            inclusive, and the testimony of claimant, Karen Appleoff and 
 
            Robert Whittlesey.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated that an employment 
 
            relationship existed between claimant and Quaker Oats, that 
 
            if a work injury is found to have produced permanent 
 
            disability, it is a scheduled member disability to the right 
 
            leg, to the proper compensation rate ($336.07 per week), 
 
            that entitlement to medical benefits is no longer in 
 
            dispute, and that Quaker Oats is entitled to credit for 
 
            certain sick pay/disability benefits paid under Iowa Code 
 
            section 85.38(2).
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            and in the course of his employment on September 6, 1990;
 
            
 
                 2.  Whether the injury caused temporary or permanent 
 
            disability;
 
            
 
                 3.  If so, the extent of each;
 
            
 
                 4.  Whether claimant is entitled to benefits from the 
 
            Second Injury Fund of Iowa; and,
 
            
 
                 5.  Whether the claim is barred by lack of timely 
 
            notice under Iowa Code section 85.23.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Robert Rooks has a long and painful history of serious 
 
            medical problems.  A non-inclusive list would include:  loss 
 
            of the left eye from recurrent herpes zoster infections; 
 
            similar ongoing process in the right eye; deafness on the 
 
            right side; severe orbital blowout fracture on the right 
 
            side with multiple surgical repairs and chronic facial pain; 
 
            headaches; pneumonia and respiratory problems; vertigo; 
 
            congestive heart failure; severe fracture of the left tibia 
 
            and fibula; Meniere's disease (deafness, tinnitus and 
 
            dizziness in connection with the ear labyrinth); depression 
 
            and bipolar disorder; alcohol abuse; addiction to chronic 
 
            use of narcotic pain medications.
 
            
 
                 Mr. Rooks also has a long history of right lower 
 
            extremity complaints.  Notes of W. Risk, M.D., in February 
 
            1985 show complaints of tenderness of the right knee with 
 
            previous swelling and discomfort on weight bearing.  On 
 
            September 6, 1990, claimant underwent a right knee 
 
            arthroscopy performed by Warren N. Verdeck, M.D.  
 
            Pre-operative diagnosis was of chondromalacia, patella and 
 
            medial femoral condyle, right knee.  No specific 
 
            post-operative diagnosis was charted, although from the 
 
            operative notes, it appears to be likely unchanged.
 
            
 
                 Following the surgical release, claimant has suffered 
 
            continuing right leg problems with falls as the knee "gives 
 
            out."  Claimant testified that his right leg swells when he 
 
            sits and that use of the leg results in pain, swelling and 
 
            bilateral "quivering."  Karen Appleoff, with whom claimant 
 
            resides, testified that claimant is unable even to mow the 
 
            entire lawn.  His work at Quaker Oats, which involves a 
 
            great deal of climbing and stooping, also exacerbates 
 
            symptoms.
 
            
 
                 Dr. Verdeck is the only physician of record to have 
 
            expressed opinions as to whether claimant's right knee 
 
            condition is causally related to his long employment with 
 
            Quaker Oats (since 1967).
 
            
 
                 On October 31, 1989, Dr. Verdeck wrote to claimant's 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            attorney following a telephone conversation on the day 
 
            before:  "It appears that Mr. Robert D. Rooks' occupation 
 
            involves a lot of walking, climbing and shoveling.  This 
 
            appears to have aggravated his initial injury and increased 
 
            his symptoms."
 
            
 
                 Dr. Verdeck made the following chart entry on June 11, 
 
            1990:  "Conference with Atty. James Peters approximately 10 
 
            minutes.  I discussed whether his current right leg 
 
            complaints are related to the original injury and I do not 
 
            feel that they are."
 
            
 
                 On June 13, 1990, defendant's attorney wrote Dr. 
 
            Verdeck a letter posing the following question:  "Has Mr. 
 
            Rooks suffered any injury to his right leg caused by work?"  
 
            On June 29, 1990, Dr. Verdeck answered:  "No."
 
            
 
                 On December 23, 1991, Dr. Verdeck entered the following 
 
            chart note:  "Mr. Rooks' work activities I could not say 
 
            with any certainty constituted a cumulative trauma that was 
 
            the cause of his right leg condition.  However, I feel that 
 
            his work activities would tend to aggravate his right leg 
 
            condition."
 
            
 
                 It can be seen that Dr. Verdeck's various remarks as to 
 
            causation do not constitute a model of clarity.  The most 
 
            reasonable interpretation, and the one here adopted, is that 
 
            Dr. Verdeck does not find claimant's knee condition to have 
 
            been caused by employment, but that employment activity 
 
            aggravates symptoms.  So, incidentally, does nonwork 
 
            activity.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 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).  The 
 
            "arising out of" requirement is satisfied by showing a 
 
            causal relationship between the employment and the injury.  
 
            Sheerin, 380 N.W.2d 415.
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 The evidence clearly discloses that claimant has 
 
            suffered an impairment to his leg.  If the condition was 
 
            caused by cumulative work trauma, it is compensable; this 
 
            remains claimant's burden of proof, and the crucial 
 
            importance of expert opinion is obvious.  As noted above, 
 
            Dr. Verdeck, the treating surgeon, is the only physician to 
 
            have expressed views on this issue.  While his views might 
 
            seem somewhat contradictory, the most reasonable 
 
            interpretation to this writer is that cumulative trauma at 
 
            work did not cause the condition, but symptoms are 
 
            (temporarily) exacerbated by activity, including work 
 
            activity.  The surgical treatment does not appear to have 
 
            been caused by temporary exacerbation, but by the existence 
 
            of the condition itself.  Claimant is now off work, but due 
 
            largely to his eye problems, not temporary exacerbation of 
 
            knee symptoms.  It is concluded that claimant has failed to 
 
            meet his burden of proof in establishing an injury arising 
 
            out of and in the course of employment.  Other issues are 
 
            accordingly rendered moot.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from these proceedings.
 
            
 
                 Claimant's costs are assessed to defendant Quaker Oats 
 
            Company pursuant to rule 343 IAC 4.33.  Each defendant shall 
 
            bear its own costs.
 
            
 
                 Signed and filed this ______ day of _________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert R. Rush
 
            Mr. Matthew J. Nagle
 
            Attorneys at Law
 
            526 Second Avenue SE
 
            P.O. Box 2457
 
            Cedar Rapids, Iowa  52406-2457
 
            
 
            Mr. James E. Shipman
 
            Mr. James M. Peters
 
            Attorneys at Law
 
            1200 MNB Building
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Cedar Rapids, Iowa  52401
 
            
 
            Mr. Craig Kelinson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1108
 
                                                 Filed June 10, 1992
 
                                                 DAVID RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ROBERT D. ROOKS, JR.,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.                                File No. 931137
 
                      
 
            QUAKER OATS COMPANY,           A R B I T R A T I O N
 
                      
 
                 Employer,                     D E C I S I O N
 
                 Self-Insured,  
 
                      
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            5-1108
 
            
 
            Claimant failed to prove knee condition was caused by 
 
            employment.