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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ELIZABETH MCLAUGHLIN,         :
 
                                          :      File Nos. 918331
 
                 Claimant,                :                931329
 
                                          :                931328
 
            vs.                           :
 
                                          :      
 
            UNIVERSAL HOME HEALTH CARE,   :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            FIDELITY AND CASUALTY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by 
 
            Elizabeth McLaughlin, claimant, against Universal Home 
 
            Health Care, employer and Fidelity and Casualty, insurance 
 
            carrier, to recover benefits under the Iowa Workers' 
 
            Compensation Act as the result of injuries sustained on May 
 
            9, 1989; September 28, 1989 and October 13, 1989.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on March 4, 1992, in Des Moines, 
 
            Iowa.  The record was considered fully submitted at the 
 
            close of the hearing.  The claimant was present and 
 
            testified at the hearing.  Also present and testifying were 
 
            J. Michael Gaffney, P.H.D.; Jo Weeces; Carolyn Wright; and 
 
            Twila Provenzano.  Documentary evidence identified in the 
 
            record consists of claimant's exhibits 1 through 25 and 
 
            defendants' exhibits A through S.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated March 
 
            4, 1992, the parties have presented the following issues for 
 
            resolution:
 
            
 
                 In file number 918331:
 
            
 
                 .  Whether claimant's injury on May 9, 1989, is a cause 
 
            of permanent disability;
 
            
 
                 .  The extent of entitlement to weekly compensation for 
 
            temporary total or healing period benefits;
 
            
 
                 .  The extent of entitlement to weekly compensation for 
 
            permanent disability benefits;
 
            
 
                 .  The type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability; and
 
            
 

 
            
 
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                 .  The extent of claimant's entitlement to medical 
 
            benefits under Iowa Code section 85.27.
 
            
 
                 In file number 931328:
 
            
 
                 .  Whether claimant sustained an injury on September 
 
            28, 1989, which arose out of and in the course of employment 
 
            with employer:
 
            
 
                 .  Whether claimant's alleged injury is a cause of 
 
            temporary and permanent disability;
 
            
 
                 .  The extent of entitlement to weekly compensation for 
 
            temporary total disability or healing period benefits;
 
            
 
                 .  The extent of entitlement to weekly compensation for 
 
            permanent disability benefits;
 
            
 
                 .  The type of permanent disability benefits, if the 
 
            injury is found to be a cause of permanent disability;
 
            
 
                 .  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27 and whether such expenses were 
 
            authorized by defendants; and
 
            
 
                 .  Defendants allege that claimant's claim is barred by 
 
            the "coming and going rule."  
 
            
 
                 In file number 931329:
 
            
 
                 .  Whether an employer-employee relationship existed 
 
            between claimant and employer at the time of claimant's 
 
            alleged injury on October 13, 1989;
 
            
 
                 .  Whether claimant sustained an injury on October 13, 
 
            1989, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 .  Whether the alleged injury is a cause of temporary 
 
            and permanent disability;
 
            
 
                 .  The extent of entitlement to weekly compensation for 
 
            temporary and permanent disability if any; and
 
            
 
                 .  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                 
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, the 
 
            evidence contained in the exhibits herein, and makes the 
 
            following findings:
 
            
 
                 Claimant was born on October 26, 1947, and completed 
 
            the twelfth grade of school.  Her past work activities were 
 
            as a bartender and a home health aide.  
 
            
 

 
            
 
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                 Due to numerous inconsistencies in the record, it is 
 
            impossible to determine with accuracy the extent of 
 
            claimant's education beyond high school and her vocational 
 
            background other than work as a bartender and a home health 
 
            aide.
 
            
 
                 Claimant commenced working as a home health aide for 
 
            Universal Home Health Care, Inc., on January 6, 1989.  In 
 
            this capacity she provided personal care, comfort measures 
 
            and environmental services, under the direction of a 
 
            registered nurse, to patients in their home.  Initially, 
 
            claimant was assigned to render nursing care to Christopher 
 
            Provenzano, a severely handicapped child (exhibit A).
 
            
 
                 During the course of her employment with employer, 
 
            claimant was injured on May 9, 1989.  At the time of the 
 
            injury she was working in the home of Christopher 
 
            Provenzano.  On the day in question, she had accompanied 
 
            Mrs. Provenzano to the grocery store.  In the process of 
 
            unloading pop bottles from the family van, one bottle 
 
            exploded in her face.  No one witnessed the accident.  
 
            
 
                 Mrs. Provenzano's parents took claimant to Monroe 
 
            County Hospital emergency room at 8:20 p.m. on May 9, 1989.  
 
            William R. Adler, O.D., removed two small fragments from her 
 
            right upper eyelid.  No scratches or abrasions were noted on 
 
            the cornea.  She was released at 8:30 p.m. (ex. 1).  
 
            
 
                 Because of persistent eye complaints, Dr. Adler 
 
            referred claimant to Gregory L. Thorgaard, M.D., for 
 
            examination on May 23, 1989.  An initial interview indicated 
 
            that claimant previously had worn contacts for photophobia 
 
            and night blindness.  Claimant's complaints were referable 
 
            to intermittent pain in the right eye and right-sided 
 
            temporaral visual field loss.  This examination revealed no 
 
            palpable orbital rim defects and no swelling of the eyelids.  
 
            There was no evidence of any retinal or optic nerve damage 
 
            in the right eye.  Claimant was advised to stop the 
 
            Scopolomine and to taper off her steroid drop which had been 
 
            prescribed by Dr. Adler.  A follow-up examination on June 
 
            20, 1989, was unremarkable and revealed no swelling around 
 
            the right eye.  A final examination on July 14, 1989, 
 
            included a repeat Humphrey visual field test which showed 
 
            dense right-sided temporal field loss.  At this time, 
 
            claimant denied any other complaints except for mild 
 
            photophobia and indicated that her pain had completely 
 
            resolved.  
 
            
 
                 On November 16, 1989, Dr. Thorgaard reported that there 
 
            are no objective findings to support claimant's alleged 
 
            right-sided visual field loss.  He stated that at the time 
 
            of her initial injury, she may have sustained some commotio 
 
            retinae to the nasal retina of the right eye which could 
 
            produce visual field loss; however, her initial objective 
 
            examination was normal and has remained unremarkable.  He 
 
            reported that, "Her subjective visual field loss is much 
 
            worse than I would expect based on her findings.  There is 
 
            no objective evidence of any eye damage at this time."  (ex. 
 
            E, pages 100-102; ex. 3).  
 
            
 

 
            
 
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                 On May 26, 1989, claimant returned to work with 
 
            employer and assumed her duties as a home health care aide, 
 
            without any medical or driving restrictions.  On September 
 
            28, 1989, while driving from her home to the home of her 
 
            patient, Frances L. Fincher, she was involved in a motor 
 
            vehicle accident when a deer ran onto the highway causing 
 
            her to lose control of her car.  She was shaken but drove to 
 
            her patient's home.  She stayed until 8:40 a.m. and was 
 
            taken by Mr. Fincher to Monroe County Hospital emergency 
 
            room for examination.  She presented with complaints of 
 
            right shoulder, clavicle, scapular, and right rib pain.  She 
 
            required narcotic analgesics for control of pain and was 
 
            admitted as an inpatient for physical therapy treatment.  
 
            X-rays were taken of her right shoulder, clavicle, scapula, 
 
            and anterior right upper ribs.  Test results were within 
 
            normal limits with no evidence of fractures.  On October 2, 
 
            1989, Kenneth Britton, D.O., discharged her with the 
 
            diagnosis of acute muscular and ligamentous strain of the 
 
            right shoulder and right hip secondary to the motor vehicle 
 
            accident and migraine cephalgia (ex. 5).
 
            
 
                 Although hospitalized from September 28 through 
 
            September 30, 1989, claimant submitted time slips and home 
 
            health aide progress notes for treatment allegedly rendered 
 
            to Frances Fincher during those days (ex. R).  Claimant 
 
            admitted at the hearing that she was hospitalized at the 
 
            time but worked out a deal with the Fincher's to make up the 
 
            hours later.  She testified that this was a regular practice 
 
            in the business.  However, when claimant's supervisor, Twila 
 
            Provenzano, received claimant's time and attendance slips, 
 
            she reported the irregularity to her supervisor.  She was 
 
            told to terminate claimant's employment.  Mrs. Provenzano 
 
            testified that she contacted claimant on October 2, 1989, 
 
            regarding this decision and requested claimant to sign 
 
            termination papers.  Claimant refused and was verbally 
 
            terminated for falsification of records (ex. A, pp. 27-30).
 
            
 
                 Claimant testified that on October 13, 1989, while on 
 
            her way to Dr. Britton's office, she was involved in a motor 
 
            vehicle accident.  She stated that while driving, a piece of 
 
            paper on the right hand side of the seat blew across her 
 
            field of vision, frightening her, and causing her to go into 
 
            the ditch.  After composing herself, she drove to her 
 
            appointment with Dr. Britton.  She complained that she had 
 
            aggravated her right shoulder and right hip and hurt her 
 
            back.  Dr. Britton testified in a deposition on April 16, 
 
            1991, that he could not recall whether claimant had a 
 
            regularly scheduled appointment with him that day 
 
            (claimant's ex. 7, p. 41).  Dr. Britton admitted claimant to 
 
            Monroe County Hospital on October 13, 1989, for conservative 
 
            therapy.  While hospitalized, x-rays were taken of 
 
            claimant's lumbosacral spine, pelvis and hips.  The right 
 
            hip showed no evidence of any trauma or other pathology and 
 
            the back and pelvis were normal.  Because of claimant's 
 
            apparent anxiety over the loss of her job and alleged loss 
 
            of her vision, Dr. Britton referred her to Deb Anderson for 
 
            psychological counseling.  On October 20, 1989, Dr. Britton 
 
            discharged her with the diagnosis of musculoskeletal pain of 
 
            the right shoulder and right hip; adjustment disorder with 
 
            anxious mood; and loss of peripheral vision (ex. 5).
 

 
            
 
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                 Dr. Britton referred claimant for ongoing, outpatient 
 
            physical therapy which occurred between October 27, 1989, 
 
            and December 8, 1989. (ex. 10).  Apparently, her right 
 
            shoulder and right arm symptomatology did not improve with 
 
            therapy and Dr. Britton referred her to Marc E. Hines, M.D., 
 
            for EMG and nerve conduction studies on February 13, 1990.  
 
            The results were consistent with a stretch injury although 
 
            Dr. Hines thought that a C-7 radiculopathy may also explain 
 
            some of her symptoms.  Dr. Hines recommended an MRI scan.  
 
            This was performed at Ottumwa Regional Health Center on 
 
            February 13, 1990.  J.J. Gleich, M.D., reported a negative 
 
            cervical MRI examination (ex. H).
 
            
 
                 On November 11, 1989, claimant was referred to J.M. 
 
            Gaffney, Ph.D., clinical psychologist, for psychological 
 
            assessment.  Dr. Gaffney's initial diagnosis was, 
 
            "adjustment disorder with mixed emotional features."  She 
 
            underwent four psychotherpay sessions, with improvement of 
 
            her symptoms (ex. 9).
 
            
 
                 Claimant was referred by defendants to Samuel L. 
 
            Graham, Ph.D., psychologist, for a psychological assessment 
 
            on July 6, 1990.  After conducting a clinical interview and 
 
            administering a battery of psychological tests, including 
 
            the Minnesota Multiphasic Personality Inventory (MMPI), Dr. 
 
            Graham reported as follows:
 
            
 
                 The clinical scales are suggestive of an 
 
                 individual who has a marked tendency to develop 
 
                 physical symptoms in the context of stressful 
 
                 situations.  Individuals with this profile 
 
                 typically have a history characterized by 
 
                 excessive and vague physical complaints, weakness, 
 
                 and pain.  They tend to rely on denial and 
 
                 repression to defend against their own awareness 
 
                 of the psychological effects of stress and present 
 
                 themselves with a rather unsophisticated approach 
 
                 to their own physical complaints....They 
 
                 frequently rely on physical complaints in an 
 
                 attempt to manipulate the behavior of others.  
 
                 This pattern of behavior tends to be stable over a 
 
                 long period of time and is likely to be 
 
                 exacerbated by any environmental problems.  High 
 
                 stress increases the likelihood that she will 
 
                 experience psychologically based physical 
 
                 symptoms.  Individuals with this pattern appear to 
 
                 be at great risk of developing a pattern of 
 
                 invalidism.
 
            
 
            (exhibit I, page 121)
 
            
 
                 Dr. Graham concluded that:
 
            
 
                 ...Mrs. McLaughlin appears to be an individual 
 
                 whose premorbid personality is such that she was 
 
                 predisposed to respond to an injury in such a 
 
                 manner that she would attribute to it the 
 
                 responsibility for psychological discomfort.  Her 
 
                 social history suggests that premorbidly, there 
 

 
            
 
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                 were significant psychological issues in her life.  
 
                 She appears to be suffering from a mild depressive 
 
                 disorder which is related, in part, to the stress 
 
                 of the current injury and her unemployment as well 
 
                 as multiple other factors.  The Depression is not, 
 
                 in and of itself, disabling....
 
            
 
            (exhibit I, pages 121-122)
 
            
 
                 Claimant was admitted to the University of Iowa 
 
            Psychiatric Hospital on July 7, 1991, from the emergency 
 
            room in Oskaloosa, Iowa.  She presented there with 
 
            increasing depressive symptoms and frustration over her 
 
            court case with Pepsi Cola.  An initial mental status 
 
            examination noted claimant to be alert and oriented with sad 
 
            affect and depressed mood.  She expressed suicidal ideation 
 
            and was placed on suicide precautions.  A psychiatric staff 
 
            evaluation on January 10, 1991, noted that she did not 
 
            appear to be depressed.  A diagnosis of "Acute and chronic 
 
            situational reaction with depressed and anxious mood," was 
 
            made.  During the course of her hospitalization, claimant 
 
            was treated by Remi J. Cadoret, M.D., staff psychiatrist.  
 
            By January 16, 1991, Dr. Cadoret felt claimant was ready to 
 
            be discharged.  Her psychiatric discharge diagnoses 
 
            included: (1) adjustment disorder with depressed mood; and 
 
            (2) Cluster B personality disorder traits (exs. L & 16).
 
            
 
                 Upon her release from University of Iowa psychiatric 
 
            facility, claimant presented to the Mahaska County Hospital 
 
            Mental Health Center on January 21, 1991, and met with Leon 
 
            Veldhuizen, M.S.W., clinical social worker.  Future 
 
            treatment sessions were set up, but claimant failed to 
 
            appear for any of them.  She was discharged from their 
 
            service on April 17, 1991 (ex. P, pp. 188-191).
 
            
 
                 Claimant was referred by Michael J. Versackas, M.D., 
 
            ophthalmologist, to H.H. Stanley Thompson, M.D., director of 
 
            the Neuro-ophthalmology Unit at the University of Iowa 
 
            Medical Center for evaluation and second opinion on May 7, 
 
            1991.  Dr. Versackas had examined claimant on August 15, 
 
            1990.  Dr. Versackas reported to Dr. Thompson that he was 
 
            unable to document specific, objective ocular damage which 
 
            correlated with claimant's subjective field loss.  After 
 
            extensive visual testing, Dr. Thompson concluded that the 
 
            findings were consistent with a purely functional loss of 
 
            vision.  On further testing, he postulated that her right 
 
            eye injury may have left her with a very minor visual field 
 
            defect without ophthalmoscopically visible retinal 
 
            abnormality.  He concluded that the injury was trivial and 
 
            that she only has minor field loss in her right eye.  Dr. 
 
            Thompson felt that there was no need for her to patch her 
 
            right eye or to attend "blind school." (ex. M, pp. 162-165).
 
            
 
                 During the course of filing a civil suit and workers' 
 
            compensation claim, claimant also applied for social 
 
            security disability benefits.  On September 5, 1991, an 
 
            on-the-record determination was made by a federal 
 
            administrative law judge that claimant has been "disabled" 
 
            as defined in the Social Security Act, since September 28, 
 
            1989 (ex. 19).  This decision is not binding on the 
 

 
            
 
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            undersigned deputy industrial commissioner as it is based on 
 
            social security law.
 
            
 
                 Jo Weeces, counselor with Iowa Vocational 
 
            Rehabilitation Services, testified at the hearing that many 
 
            inconsistencies were contained in claimant's vocational 
 
            records, however, her case was closed with the agency before 
 
            a thorough investigation could be made.  Ms. Weeces was 
 
            aggressively cross-examined by defendants' counsel regarding 
 
            statements made by claimant.  She admitted that the agency 
 
            did not attempt to verify the truth of claimant's 
 
            representations.  Therefore, any conclusion reached by Ms. 
 
            Weeces and vocational rehabilitation personnel regarding 
 
            claimant's employability, lacks foundation and credibility 
 
            because it is based on an incomplete and inaccurate medical, 
 
            vocational and educational history.  Accordingly, it is not 
 
            entitled to significant weight and consideration in this 
 
            proceeding.
 
            
 
                 On June 17, 1991, claimant was referred to Dr. Britton 
 
            by her attorney for a permanent impairment evaluation.  Dr. 
 
            Britton proceeded to evaluate claimant's right upper and 
 
            lower extremity, cervical spine and brain.  Somehow, he 
 
            arrived at a 70 percent impairment of the whole person (ex. 
 
            15).  This assessment is based on claimant's exaggerated 
 
            subjective complaints and an incomplete history, the opinion 
 
            is not binding on the undersigned.
 
            
 
                 On February 10, 1992, claimant's attorney referred her 
 
            to Dr. Gaffney for an updated psychological assessment and 
 
            repeat Minnesota Multiphasic Personality Inventory.  At this 
 
            time, Dr. Gaffney had claimant's January 1988 records from 
 
            Iowa Lutheran Hospital where she was admitted on January 9, 
 
            1988, after a suicide attempt with a Librax overdose.  She 
 
            was released on January 10, 1988, with a diagnosis of 
 
            dysthymic disorder with significant psychosocial stressors 
 
            by Robert Smith, psychiatrist (ex. K).  
 
            
 
                 After reviewing claimant's past medical records and the 
 
            MMPI results, Dr. Gaffney concluded that claimant's 
 
            emotional condition had worsened since he last saw her in 
 
            January 1990, and psychotherapy was recommended (exs. 9 & 
 
            25).  
 
            
 
                 Defendants then requested an updated psychological 
 
            assessment from Dr. Graham.  Dr. Graham opined that claimant 
 
            has a documented long history of anxiety and somatic 
 
            expression demonstrated by emotional volatility and anxiety 
 
            when confronted with environmental stress.  He stated that 
 
            Ms. McLaughlin demonstrates, "...a characterological pattern 
 
            of long standing and is not reflective of the emergence of a 
 
            new psychological/psychiatric disorder subsequent to the 
 
            incident where the pop bottle is reported to have exploded."  
 
            He noted that psychological testing clearly revealed and was 
 
            consistent with an individual at significant risk for marked 
 
            pain magnification and exaggeration of somatic complaints 
 
            (ex. I, p. 123).  
 
            
 
                                conclusions of law
 
            
 

 
            
 
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                 I.  Re:  File number 918331:
 
            
 
                 The issues to be determined in file number 918331 
 
            include:  (1) whether claimant is entitled to any permanent 
 
            disability benefits as a result of the incident on May 9, 
 
            1989, involving her right eye; and (2) whether there is a 
 
            causal relationship between the complaints concerning 
 
            claimant's right eye and the incident of May 9, 1989.  
 
            Claimant also alleges that she has suffered mental problems 
 
            as a result of her eye trauma and argues that she should be 
 
            compensated industrially.  
 
            
 
                 When the result of an injury is loss to a scheduled 
 
            member, the compensation payable is limited to that set 
 
            forth in the appropriate subdivision of Iowa Code section 
 
            85.34(2).  Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961).
 
            
 
                 A claimant may not recover benefits for industrial 
 
            disability if the injury is to a scheduled member and not to 
 
            the body as a whole even when psychological problems affect 
 
            earning capacity.  A claimant is compensated for any 
 
            reduction in earning capacity through the schedule.  The 
 
            scheduled loss system created by the legislature is presumed 
 
            to include compensation for reduced capacity to labor and to 
 
            earn.  Schell v. Central Engineering Company, 232 Iowa 421 4 
 
            N.W.2d 399 (1942); Pilcher v. Penick and Ford, file number 
 
            618597 (Appeal Decision October 21, 1987; Cannon v. Keokuk 
 
            Steel Casting, file number 795331 (Appeal Decision January 
 
            17, 1988).
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of May 9, 1989, is causally related to the disability on 
 
            which he now bases his claim.  Bodish v. Fischer, Inc., 133 
 
            N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 
 
            N.W.2d 607, 613-14 (Iowa 1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
            1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection.  Burt, 73 
 
            N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, the weight to be given to such an opinion 
 
            is for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The supreme court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 

 
            
 
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                 Claimant alleges a significant loss of right-sided 
 
            peripheral vision.  On May 9, 1989, claimant had two small 
 
            fragments removed from the eyelid of her right eye by Dr. 
 
            Adler, an optometrist.  Because of intermittent pain and 
 
            alleged right-sided temporal visual field loss, Dr. Adler 
 
            referred claimant to Dr. Thorgaard, an ophthalmologist.  An 
 
            examination on May 23, 1989, revealed no evidence of any 
 
            retinal damage or optic nerve damage in the right eye.  Dr. 
 
            Thorgaard concluded that there were no objective findings to 
 
            support claimant's visual field loss (exs. E & F).  This 
 
            assessment was also made by Dr. Versackas, an 
 
            ophthalmologist, on August 15, 1990 (ex. 12).  Dr. Thompson, 
 
            a neuro-ophthalmologist, reported no objective evidence 
 
            found on extensive testing performed on May 7, 1991, to 
 
            verify claimant's alleged loss of peripheral vision (ex. M).  
 
            Although Dr. Thorgaard gave claimant a permanent impairment 
 
            rating, he stressed that this rating was based on her 
 
            subjective complaints rather than objective findings.  He 
 
            concluded that her apparent visual field loss is functional 
 
            and has no organic basis (ex. E).
 
            
 
                 Claimant has not met her burden of proof.  The veracity 
 
            of claimant's testimony regarding the exent of visual loss 
 
            is questionable.  Ophthalmologists who have treated and/or 
 
            examined claimant have consistently opined that there is no 
 
            objective evidence to support her alleged right-sided visual 
 
            field loss.  Claimant was off work from May 9 through May 
 
            25, 1989.  She returned to work on May 26, 1989, without any 
 
            restrictions, including driving restrictions.  Claimant has 
 
            made no showing of the existence of a permanent eye 
 
            impairment.  Pain and dysfunction that is not substantiated 
 
            by clinical findings is not a substitute for impairment.  
 
            Waller v. Chamberlain Manufacturing, II Iowa Industrial 
 
            Commissioner Report 419, 425 (1981); Godwin v. Hicklin GM 
 
            Power, II Iowa Industrial Commissioner Report 170 (1981).
 
            
 
                 Claimant is not entitled to any permanent partial 
 
            disability benefits as a result of the incident on May 9, 
 
            1989, and, therefore, takes nothing further in claim number 
 
            918331.
 
            
 
                 II.  Re:  File number 931328:
 
            
 
                 In file number 931328, the issues to be determined 
 
            include: (1) whether claimant's motor vehicle accident of 
 
            September 28, 1989, arose out of and in the course of 
 
            employment, and whether there is a causal relationship 
 
            between the claim now being asserted and the incident of 
 
            September 28, 1989; and (2) whether there is a causal 
 
            relationship between the accident of September 28, 1989, and 
 
            the incident of May 9, 1989.
 
            
 
                 On September 28, 1989, at approximately 6 a.m. or 6:15 
 
            a.m., claimant was en route to her employment when a deer 
 
            ran across the road and struck claimant's automobile.  
 
            Claimant was wearing a seat belt, however, she claimed her 
 
            right shoulder struck the steering wheel and her right 
 
            forehead struck the windshield.  She later complained of hip 
 
            pain.  She was able to drive to her scheduled assignment, 
 
            and worked for a short period of time, until she later asked 
 

 
            
 
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            to be taken to the emergency room.  She was hospitalized by 
 
            Dr. Britton, who diagnosed right shoulder and right hip 
 
            muscular and ligament strain.  Dr. Britton stated in the 
 
            discharge summary that claimant may resume activities and 
 
            return to work, as tolerated (ex. 5).  
 
            
 
                 Claimant was subsequently discharged from her 
 
            employment on October 2, 1989, on the basis of patient 
 
            complaints and for misrepresenting hours worked.  
 
            
 
                 Claimant alleges that the incident with the deer is 
 
            directly related to the loss of vision in her right eye 
 
            which, in turn, is related to the Pepsi bottle incident.  
 
            She seeks temporary and permanent disability benefits.  She 
 
            also seeks medical benefits for injuries incurred as a 
 
            result of this accident.  
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on September 28, 
 
            1989, which arose out of and in the course of her 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 
 
            908 (Iowa 1976); Musselman v. Central Telephone Co., 154 
 
            N.W.2d 128, 130 (Iowa 1967).  The words "arising out of" 
 
            have been interpreted to refer to the cause and origin of 
 
            the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971);   Crowe v. DeSoto Consolidated School District, 
 
            68 N.W.2d 63, 65 (Iowa 1955).  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An 
 
            injury occurs in the course of the employment when it is 
 
            within the period of employment at a place the employee may 
 
            reasonably be, and while the employee is doing work assigned 
 
            by the employer or something incidental to it.  Cedar Rapids 
 
            Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 
 
            1979), McClure 188 N.W.2d at 287; Musselman, 154 N.W.2d at 
 
            130. 
 
            
 
                 The supreme court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers' Compensation Act, which comes 
 
            about, not through the natural building up and tearing down 
 
            of the human body, but because of a traumatic or other hurt 
 
            or damage to the health or body of an employee.  The injury 
 
            to the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 Defendants argue that claimant is not entitled to 
 
            compensation because the automobile accident occurred while 
 
            claimant was on her way to work.  Defendants argument is 
 
            without merit.  
 
            
 
                 On May 17, 1989, the Supreme Court of Iowa in Medical 
 
            Associates Clinic, P.C. v. First National Bank of Dubuque, 
 
            440 N.W.2d 374 (Iowa 1989) upheld the award of workers' 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            compensation benefits to a surgeon who was killed in an 
 
            automobile accident on his way from home to work at the 
 
            clinic.  The court stated that the evidence demonstrated 
 
            that decedent was required to bring his car to work for its 
 
            use in furtherance of the clinic's practice and, therefore, 
 
            his death in the automobile accident arose out of and in the 
 
            course of his employment.
 
            
 
                 The general rule is that, absent special circumstances, 
 
            an employee is not entitled to compensation for injuries 
 
            occurring off of the employer's premises on the way to and 
 
            from work.  Under a separate rule which acts as an exception 
 
            to the "going and coming" rule, an employee's trip to and 
 
            from work is considered within the course of employment if 
 
            the employee is required, as a part of employment, to 
 
            provide a vehicle for use during the working day.  
 
            
 
                 Ms. McLaughlin was required to bring her car to work.  
 
            She had no work situs.  Her work as a home health aide 
 
            necessitated  that she make trips from her home to several 
 
            patients' homes.  There is no doubt that Universal Home 
 
            Health Care obtained a substantial benefit from Ms. 
 
            McLaughlin's mobility.  Therefore, claimant's injury in the 
 
            September 28, 1989, automobile accident on the way to work 
 
            arose out of and in the course of her employment with 
 
            employer.
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of September 28, 1989, is causally related to the disability 
 
            on which she now bases her claim.  Bodish v. Fischer, Inc., 
 
            133 N.W.2d 867, 868 (Iowa 1965);  Lindahl v. L. O. Boggs, 18 
 
            N.W.2d 607, 613-14 (Iowa 1945).  A possibility is 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
            1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection.  Burt, 73 
 
            N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, the weight to be given to such an opinion 
 
            is for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The supreme court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 During the course of hospitalization from September 28, 
 
            1989 through October 2, 1989, claimant was treated for pain 
 
            in her right shoulder and right hip.  Manipulative treatment 
 
            was performed to her shoulder on two occasions and good 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            improvement was noted.  X-rays of the right shoulder, 
 
            clavicle and scapula were all normal.  X-rays of the 
 
            anterior right upper ribs were normal with no fractures.  
 
            Dr. Britton, at the time of discharge, imposed no 
 
            limitations on claimant's ability to physically function.  
 
            She was released to return to work, as tolerated.  As it 
 
            happens, claimant was fired, for good cause, on October 2, 
 
            1989, the day she was discharged from the hospital and did 
 
            not have a job waiting for her.  She has made no attempt to 
 
            find work since being terminated by employer.  
 
            
 
                 Claimant has not met her burden of proof in this claim.  
 
            Claimant is not credible.  She had made too many 
 
            inconsistent statements to physicians, counselors and during 
 
            her testimony that make it impossible to support a recovery 
 
            in this case.  There is no objective evidence that she has 
 
            any permanent disability to her right shoulder or right hip 
 
            as a result of the automobile accident on September 28, 
 
            1989.  Dr. Britton prescribed physical therapy based on 
 
            claimant's subjective complaints of pain.  Such complaints 
 
            appear exaggerated and out of proportion to the clinical and 
 
            laboratory findings in the record.  As previously noted, 
 
            pain that is not substantiated by clinical findings is not a 
 
            substitute for impairment.  Claimant has not carried her 
 
            burden showing that her right shoulder or right hip 
 
            condition is of a permanent nature.
 
            
 
                 Claimant is entitled to temporary total disability 
 
            benefits beginning on the fourth day of disability after the 
 
            injury and ending when she was released to return to work at 
 
            the time of discharge from the hospital.  Since claimant was 
 
            hospitalized on September 28, 1989, and discharged on 
 
            October 2, 1989, she is entitled to temporary total 
 
            disability benefits for two days commencing October 1, 1989 
 
            through October 2, 1989.  Claimant is also entitled to 
 
            payment of hospital expenses at Monroe County Hospital 
 
            during the time she was treated for her work-related injury, 
 
            September 28, 1989, through October 2, 1989, when she was 
 
            released from the hospital.  
 
            
 
                 III.  Re:  File number 931329:
 
            
 
                 The issues to be determined by the undersigned in file 
 
            number 931329 include:  (1) whether claimant's motor vehicle 
 
            accident of October 13, 1989, arose out of or in the course 
 
            of her employment with employer; (2) whether such accident 
 
            was causally related to her previous automobile accident on 
 
            September 28, 1989, or to the incident of May 9, 1989; and 
 
            (3) whether claimant's current physical and mental 
 
            complaints are causally related to her employment or the 
 
            incidents arising out or in the course of her employment.
 
            
 
                 Claimant acknowledges that she was not employed by 
 
            employer at the time of the alleged automobile accident on 
 
            October 13, 1989.  Claimant contends that her current 
 
            physical and mental complaints are a sequelae of her 
 
            original eye injury.  
 
            
 
                 The Supreme Court of Iowa in Oldham v. Scofield and 
 
            Welch, 222 Iowa 764, 767, 266 N.W. 480, 482 (Iowa 1936), 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            decided that, "where an accident occurs to an employee in 
 
            the usual course of his employment, the employer is liable 
 
            for all consequences that naturally and proximately flow 
 
            from the accident."  
 
            
 
                 Claimant contends that her alleged automobile accident 
 
            on October 13, 1989, is related to her right eye disability 
 
            which resulted from a work-related injury on May 26, 1989.  
 
            She states that this accident aggravated her right shoulder 
 
            and hip condition incurred in the September 28, 1989, 
 
            accident.  Furthermore, she alleges an additional back 
 
            condition as a result of this latest accident.  
 
            
 
                 As previously discussed, the objective medical evidence 
 
            clearly establishes that claimant suffered no nasal retinal 
 
            damage to her right eye as a result of the Pepsi Cola bottle 
 
            explosion on May 9, 1989, to account for her alleged right 
 
            temporal visual field loss.  Furthermore, the record clearly 
 
            establishes that claimant incurred no permanent disability 
 
            as a result of the September 28, 1989, automobile accident.  
 
            Therefore, any alleged disability as a result of the October 
 
            13, 1989, injury is not compensable.  
 
            
 
                 
 
            
 
                 In Oldham, the Iowa Supreme Court stated as follows:
 
            
 
                 The question of whether the disability sustained 
 
                 by the employee shall be attributed to the first 
 
                 accident or to the later accidents depends on 
 
                 whether or not the disability sustained was caused 
 
                 by a change in the original condition, or by a 
 
                 recurrence of the original injury, or by an 
 
                 independent and subsequent cause.  If the employee 
 
                 suffers a compensable injury and thereafter 
 
                 suffers further disability which is the proximate 
 
                 result of the original injury, such further 
 
                 disability is compensable.  Where an employer 
 
                 suffers a compensable injury and thereafter 
 
                 returns to work and, as a result thereof, his 
 
                 first injury is aggravated and accelerated so that 
 
                 he is greater disabled than before, the entire 
 
                 disability may be compensated for.
 
            
 
            [Oldham v. Scofield and Welch, 222 Iowa 764, 767, 266 N.W. 
 
            480, 482 (Iowa 1936)]
 
            
 
                 Claimant contends that as a result of the October 13, 
 
            1989, accident, she aggravated her right shoulder and right 
 
            hip and injured her lumbosacral spine.  However, x-rays of 
 
            the lumbosacral spine taken on October 17, 1989, were 
 
            normal.  X-rays of the pelvis and right hip taken on October 
 
            19, 1989, were also normal.  An MRI scan of the cervical 
 
            spine taken on February 18, 1990, was negative.  A 
 
            comprehensive neurological examination by Robert A. Hayne, 
 
            M.D., on March 26, 1991, revealed no physical impairment as 
 
            a result of either automobile accident.  It was his opinion 
 
            that claimant develops severe physical symptoms from 
 
            stressful situations and recommended that she return to 
 
            gainful employment in work other than that of a nurse's aide 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            (ex. O).
 
            
 
                 On July 1, 1991, Dr. Britton provided a narrative 
 
            summary of his medical evaluation of claimant's permanent 
 
            impairment.  He completed a medical limitations 
 
            questionnaire for submission to the Social Security 
 
            Administration in support of claimant's claim for disability 
 
            (ex. 15).  An independent residual physical functional 
 
            capacity assessment made by Charles Ross, M.D., medical 
 
            consultant for social security, refuted Dr. Britton's 
 
            assessment stating that, "...the examining physician has 
 
            limited her to lifting five pounds.  However, I do not feel 
 
            that this severe a restriction is justified on the basis of 
 
            the objective medical findings."  (ex. N, p. 168).
 
            
 
                 In summary, the undersigned is unable to attach 
 
            claimant's alleged present physical disability to either her 
 
            May 9, 1989 or September 28, 1989, injury.  Claimant has not 
 
            met her burden of proof.  The record is not clear that an 
 
            accident even occurred on October 13, 1989.  Dr. Britton 
 
            relied on claimant's representations in this regard.  In 
 
            view of claimant's propensity to be less than truthful, her 
 
            contentions in this regard lack weight and credibility.
 
            
 
                 Permeating claimant's three claims, is her contention 
 
            that she has developed psychological problems as a result of 
 
            the physical trauma to her right eye on May 9, 1989, which 
 
            intensified after each alleged automobile accident.  
 
            
 
                 The Iowa Supreme Court in Deaver v. Armstrong Rubber 
 
            Co., 170 N.W.2d 455 (Iowa 1969), held that psychological 
 
            impairments caused by work injuries are compensable.  The 
 
            court in Gosek v. Garmer and Stiles Company, 158 N.W.2d 731, 
 
            733 (Iowa 1968), noted that, "When there has been a 
 
            compensable accident and claimant's injury related 
 
            disability is increased or prolonged by a trauma connected 
 
            neurosis or hysterical paralysis, all disability, including 
 
            effects of any such nervous disorder, is compensable."  
 
            Finally, the court in Newman v. John Deere Ottumwa Works, 
 
            372 N.W.2d 199 (Iowa 1985), determined that an imaginary 
 
            physical trauma could not cause an emotional injury when the 
 
            imagined trauma was a product of claimant's mental condition 
 
            rather than his work.
 
            
 
                 Defendants admit that claimant suffered a physical 
 
            trauma on May 9, 1989, when a pop bottle exploded in her 
 
            face.  However, they deny, and the undersigned agrees, that 
 
            no permanent physical impairment resulted from this trauma.  
 
            Furthermore, they deny that claimant has a mental impairment 
 
            as a consequence that naturally and proximately flowed from 
 
            the accident.  
 
            
 
                 Claimant relies on Dr. Gaffney's opinion to establish a 
 
            causal connection between the pop bottle event and 
 
            claimant's alleged mental disability.  Dr. Gaffney reported 
 
            on January 10, 1990, that, "My diagnosis is adjustment 
 
            disorder with mixed emotional features.  In my opinion this 
 
            disorder is related directly to her eye trauma and its 
 
            sequelae." (ex. 9).  Dr. Gaffney testified that he reached 
 
            this opinion after four brief psychotherapy sessions between 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            November 1989 and January 1990.  When claimant was evaluated 
 
            by Dr. Graham on July 6, 1990, she reported that the 
 
            lingering illness and death of her second husband were the 
 
            major stressors in her life which led her to seek 
 
            psychological help.  She indicated that she no longer felt 
 
            any need to see Dr. Gaffney for therapy (ex. I, p. 120).  
 
            Both psychologists agree that the results of MMPI testing 
 
            reveals claimant to be an individual with "a high level of 
 
            somatic concerns which may also tend to preoccupy her." (ex. 
 
            25), and "at significant risk for marked pain magnification 
 
            and exaggeration of somatic complaints."  (ex. I, p. 123).  
 
            
 
                 Claimant denies the existence of a preexisting 
 
            psychological condition.  However, the records indicate that 
 
            on September 15, 1980, claimant's mother wrote a letter to 
 
            Dr. Pineda stating in pertinent part as follows:
 
            
 
                 My family and I are very concerned over 
 
                 Elizabeth's illness.  The problem goes back to her 
 
                 childhood.  She has a very habit of stretching the 
 
                 truth.  We never new when to believe her....
 
            
 
                 When Elizabeth was a very young teenager we took 
 
                 her took a psychiatrist for this problem.  She has 
 
                 always been a problem, causing problems within the 
 
                 family and as you probably know Chuck is her third 
 
                 husband.  I can see the problem in her children 
 
                 also.  As a family doctor is there anything you 
 
                 can do?...
 
            
 
            (exhibit Q)
 
            
 
                 Records from Iowa Lutheran Hospital dated January 9 
 
            through January 10, 1988, indicate that claimant was treated 
 
            as a result of a suicide attempt with a Librax overdose.  
 
            Her discharge diagnose included, "dysthymic disorder with 
 
            significant psychosocial stressors versus major depressive 
 
            disorder, probably reactive in nature, but cannot rule out 
 
            involutional melancholia given patient's age."  (ex. K).  
 
            
 
                 Dr. Gaffney admitted during the course of his testimony 
 
            that he was not aware of claimant's prior psychiatric 
 
            history when he causally connected her adjustment disorder 
 
            to the eye trauma of May 9, 1989.  In any event, this agency 
 
            has held that while a psychologist has expertise in the area 
 
            of the mind, he does not necessarily have expertise in the 
 
            relationship between the mind and the body, such as would be 
 
            possessed by a psychiatrist.  Saunders v. Cherry Burrell 
 
            Corp., II Iowa Industrial Commissioner Reports 333 (App. 
 
            Dec. 1982).  More recently, the Iowa Industrial Commissioner 
 
            in an appeal decision filed on February 26, 1990, stated as 
 
            follows:
 
            
 
                 The proof of the causal connection between an 
 
                 injury and an alleged disability is dependent upon 
 
                 medical opinion.  That medical opinion cannot only 
 
                 be the opinion of a psychologist.  See Saunders v. 
 
                 Cherry Burrell Corp., II Iowa Industrial 
 
                 Commissioner Report 333 (Appeal Decision 1982) and 
 
                 Palmer v. Norwalk Community School District, II 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
                 Iowa Industrial Commissioner Report 302 (Appeal 
 
                 Decision 1981).  A psychologist is not a 
 
                 physician.  See Iowa Code section 135.1(5).  If 
 
                 the issue of whether there was a causal connection 
 
                 between claimant's alleged injury and his alleged 
 
                 disability were to be decided in this case, 
 
                 claimant's claim would be denied because there is 
 
                 no opinion of causal connection given by a 
 
                 physician.
 
            
 
                 Claimant has not met her borden of proof.  The greater 
 
            weight of the evidence does not support claimant's 
 
            contention that her adjustment disorder is causally 
 
            connected to her eye trauma and its sequelae.  This being 
 
            the case, claimant is not entitled to reimbursement for 
 
            medical expenses incurred for treatment related to her 
 
            mental impairment except for those authorized by defendants.  
 
            
 
                                        
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In file number 918331:
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                 In file number 931328:
 
            
 
                 Defendants shall pay to claimant two days of temporary 
 
            total disability benefits at the rate of one hundred 
 
            twenty-four and 97/100 dollars ($124.97) per week for the 
 
            period from October 1, 1989 through October 2, 1989.
 
            
 
                 Claimant is entitled to payment of her hospital bill at 
 
            Monroe County Hospital for treatment rendered from September 
 
            28, 1989 through October 2, 1989.
 
            
 
                 In file number 931329:
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                 Defendants shall pay all costs of these proceedings 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall receive credit for any benefits 
 
            previously paid.
 
            
 
                 Defendants shall pay accrued amounts in a lump sum.
 
            
 
                 Defendants shall pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 Defendants shall file claim activity reports as 
 
            required by this agency.
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Scott Campbell
 
            Attorney at Law
 
            315 S 2nd St
 
            Oskaloosa, Ia  52577
 
            
 
            
 
            
 
            Mr. James Q. Blomgren
 
            Attorney at Law
 
            110 N. Market 
 
            PO Box 1066
 
            Oskaloosa, Ia  52577
 
            
 
            Ms. Dorothy L. Kelley
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, Ia  50309
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JOSEPH EWART,  :
 
                      :       File No. 931331
 
                 Claimant, :
 
                      :
 
            vs.       :     A R B I T R A T I O N
 
                      :
 
            KT LEASING, INC. and     :        D E C I S I O N
 
            DAVID KURK, INC.,   :
 
                      :
 
                 Employer, :
 
                 Defendant.     :
 
                      :
 
            ___________________________________________________________
 
            statement of the case
 
            This case came on for hearing on April 9, 1991, at Des 
 
            Moines, Iowa.  This is a proceeding in arbitration wherein 
 
            claimant seeks permanent partial disability benefits as a 
 
            result of a January 26, 1989 injury.  The record in the 
 
            proceedings consists of the testimony of claimant; and 
 
            claimant's exhibits 1 through 34.
 
            ISSUES
 
            The issues for resolution are:
 
            1.  The extent of claimant's permanent disability and enti
 
            tlement to disability benefits;
 
            2.  Whether both defendants are jointly and severally liable 
 
            or just KT Leasing, Inc.
 
            findings of fact
 
            The undersigned deputy having heard the testimony and con
 
            sidered all the evidence, finds that:
 
            Claimant is a 54-year-old who completed the eighth grade and 
 
            has no further formal education.  He indicated he received 
 
            poor grades in school.  Claimant has had basically two jobs 
 
            in his work history.  These jobs were either as a dispatcher 
 
            at a trucking company or a truck driver driving a semi 
 
            truck.
 
            On January 26, 1989, claimant was involved in an accident 
 
            while driving his semi truck in the course of his 
 
            employment.  Claimant indicated that a car ran head on into 
 
            him and this crash resulted in claimant incurring back pain, 
 
            a fractured wrist, knee bruises, contusions to the head, and 
 
            an ear injury.  Claimant indicated that his left wrist and 
 
            ear injuries are now cured and were only temporary in nature 
 
            but that his back and left knee  has still caused him 
 
            permanent problems.
 
            Claimant made reference to his medical treatment and spinal 
 
            surgery and indicated he reached maximum healing on August 
 
            28, 1990.  Claimant said the doctor released him with 
 
            certain restrictions, including a 25 pound lifting 
 
            restriction.  Claimant has not worked since his injury.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Claimant testified that if he followed all the restricitons 
 
            that the doctor placed on him, he could not do any of his 
 
            prior jobs, including the dispatcher job since he would have 
 
            to sit all the time and couldn't take the necessary breaks.
 
             Claimant indicated that he couldn't pick up a newspaper and 
 
            read all the words.  Claimant looked for work and has been 
 
            unable to obtain a job.  He also stated he applied at job 
 
            service and his former employer.  Claimant did indicate that 
 
            the former employer suggested they may have something for 
 
            him if he wanted to travel 300 miles to seek the job.  
 
            Claimant said that if he drives 50 miles, he must stop and 
 
            walk around for ten minutes to limber up his leg.  He said 
 
            he has to do this approximately twice an hour.
 
            Claimant said this accident has affected him getting a 
 
            pension.  He indicated that if he went back to the union job 
 
            and picked up six more years he would be eligible for a 
 
            Teamsters pension but would be unable to obtain that now.
 
            Claimant indicated that when he was working for defendants 
 
            most of his driving was out of and back into Iowa.   He said 
 
            he received the checks from KT Leasing, Inc., up to the time 
 
            of the injury, but that when he was off work the checks he 
 
            received which were like payroll checks at times came from 
 
            KT Leasing, Inc., and/or David Kurk, Inc.  He indicated that 
 
            after taxes he has received a net of $14,400 since his 
 
            injury from those two sources, for which he agreed would be 
 
            a credit against any permanent disability benefits to which 
 
            he is found to be entitled.
 
            Claimant said that David Kurk owns KT Leasing, Inc., and 
 
            David Kurk, Inc.  He related that these companies are 
 
            operated together and that David Kurk's son is the 
 
            dispatcher and that there is only one nunber to call while 
 
            driving under KT Leasing, Inc. and the number is, in fact, 
 
            listed as David Kurk, Inc.  Claimant related that KT 
 
            Leasing, Inc., gets its orders from David Kurk, Inc., even 
 
            though claimant was driving under KT Leasing, Inc.  Claimant 
 
            emphasized that he works for KT Leasing and David Kurk, 
 
            Inc., and was emphatic that he takes his orders from David 
 
            Kurk, Inc., even though he was driving at the time of his 
 
            injury for KT Leasing, Inc.  Claimant said the truck is 
 
            owned by David Kurk, Inc., but the payroll check came from 
 
            KT Leasing, Inc.
 
            Claimant said he is now disabled and he does not believe he 
 
            can ever find employment.  Claimant testified he cannot ride 
 
            very far, his low back hurts most of the time, his left leg 
 
            and foot is numb, and he is in a lot of pain.  Claimant said 
 
            these problems did not exist prior to his January 26, 1989 
 
            injury.
 
            Due to prior orders, defendants were closed from presenting 
 
            any evidence or performing any activity in this hearing and, 
 
            therefore, there was no evidence of defendants by way of 
 
            testimony or exhibits.
 
            Dennis L. Abernathie, M.D., an orthopedic specialist, testi
 
            fied on November 30, 1990, by way of his deposition.  He 
 
            first saw claimant on June 6, 1989, and related the history 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            taken at that time.  Claimant indicated to him that he had 
 
            had two previous back surgeries, most likely at the L5/S1 
 
            level two years prior to the time he saw claimant and that 
 
            claimant indicated he had done fine ever since.  He related 
 
            he referred claimant to Keith W. Riggins, M.D., who had 
 
            performed claimant's previous surgery.  Dr. Riggins did not 
 
            want to do surgery right away but, instead, performed an 
 
            epidural steroid injection which helped claimant a little 
 
            (Claimant's Exhibit 30, page 5).  Claimant then saw Dr. N.Q. 
 
            Crenshaw due to a recurring numbness and tingling in his 
 
            left foot and left leg.  Treatment with heat and ultrasound 
 
            gave claimant no relief, so Dr. Abernathie then took over 
 
            the care.  Dr. Abernathie recommended conservative care for 
 
            claimant involving a lumbosacral corset to immobilize the 
 
            lumbar spine to try to take some pressure off the nerve.
 
            The doctor saw claimant on July 25, 1989, at which time the 
 
            claimant had complaints of numbness, weakness and pain with 
 
            his left leg, and that the numbness and weakness have been 
 
            getting worse depending on claimant's activity.
 
            Claimant was admitted to the hospital to have a myelogram 
 
            and a CT scan performed on October 3, 1989.  These tests 
 
            showed a postoperative change at L5/S1 with a moderately 
 
            severe bony neural forminal stenosis on the left side at 
 
            L5/S1 with moderate mony neural foraminal stenosis on the 
 
            right side at L5/S1, also.  There was also moderate bony 
 
            neural foraminal stenosis bilaterally at L4/5 (Cl. Ex. 30, 
 
            p. 7).
 
            On December 4, 1989, bilateral foraminotomies at L4/5 and 
 
            L5/1 were performed.
 
            Because claimant was still having problems with his left leg 
 
            and having some S1 hypoesthesia, the doctor recommended 
 
            another CT scan as follow-up to the surgery.  This CT scan 
 
            was done on February 21, 1990, and in comparison to the 
 
            October 4, 1989 CT scan, it showed a significant scar tissue 
 
            around the nerves at L5/S1 but the stenosis was no longer 
 
            present.  The doctor felt that with contracture of the scar 
 
            tissue, there was some contractions of the nerve root and 
 
            that this was causing claimant's symptoms.
 
            By May 2, 1990, claimant had not shown a lot of progress so 
 
            a physical therapist was brought into the picture.
 
            On July 16, 1990, claimant was not making any progress again 
 
            even though he was doing the therapy and the doctor 
 
            indicated claimant was doing everything they asked of him 
 
            but claimant's left leg seemed to be a problem (Cl. Ex. 30, 
 
            p. 10).  The doctor felt another myelogram and CT scan 
 
            should be done and these were done again on July 24, 1990, 
 
            to see if there is any additional scarring of the nerve.  
 
            These tests show that there was an encasement of the scar 
 
            tissue of the left nerve root.  Otherwise, there was no 
 
            bulging discs nor bony narrowing. (Cl. Ex. 30, p. 11).  The 
 
            doctor felt that claimant had reached maximum recovery on 
 
            August 28, 1990, which is the last day he saw claimant.  The 
 
            doctor felt that he had tried all the therapy that he could 
 
            think of to improve claimant.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            The doctor opined that claimant had a 25 percent impairment 
 
            of the body as a whole and that because of the recurrent 
 
            numbness that he was having in the left leg with use, the 
 
            doctor did not feel safe that claimant could go back to 
 
            truck driving over the road but certainly felt that he was 
 
            otherwise employable.  The doctor causally connected 
 
            claimant's impairment rating to the accident of January 26, 
 
            1989.  He indicated that there were some aggravation of 
 
            claimant's preexisting conditions which had pretty much 
 
            settled down.  He emphasized he thought claimant had a new 
 
            condition but it was compounded by the previous injury.  The 
 
            doctor acknowledged that prior to claimant's injury on 
 
            January 26, 1989, claimant was symptom-free and the doctor 
 
            opined that the symptoms claimant now has are related to the 
 
            accident itself (Cl. Ex. 30, 13).  The doctor recommended 
 
            that claimant should have a job where he sits, stands and 
 
            walks intermittently, where he doesn't have to reach above 
 
            his shoulders or pick up below his knees and he should not 
 
            have to do repetitive bending and twisting at the waist (Cl. 
 
            Ex. 30, p. 13).  The undersigned finds that these 
 
            recommendations are, in fact, restrictions.
 
            There are several other medical records but the undersigned 
 
            feels there is no necessity to setting out the particulars 
 
            of any of these documents.  Dr. Abernathie, in his 
 
            deposition, has either referred to them or drawn conclusions 
 
            based on his knowledge of these reports.  Medical records do 
 
            disclose that claimant worked hard at his physical therapy.  
 
            This is further evidenced by comments on May 31, 1990 and 
 
            June 7, 1990, regarding the Keokuk area hospital in which 
 
            notations are:  "Pt is [sic] been working hard, 3 times a 
 
            week."  "Pt. was working hard in Physical Therapy." (Cl. Ex. 
 
            26, pp. 68-69).
 
            Claimant had two previous surgeries to his back.  The 
 
            January 26, 1989 accident resulted in injuries to his back 
 
            in the same or similar areas of which he had his previous 
 
            surgeries, but claimant was having no symptoms nor were his 
 
            previous surgeries having any effect on claimant's 
 
            employment or ability to work.  There is no medical evidence 
 
            attributing claimant's impairments to his prior injuries and 
 
            there is no evidence of any prorating of any impairment.  
 
            Claimant is 54 years of age and has an eighth grade 
 
            education.  He has basically been in the trucking business 
 
            all his life.  Twenty-five of those years he drove a truck 
 
            and the rest was as a truck dispatcher.  Those are 
 
            claimant's only transferable skills.  The only further 
 
            evidence of claimant's education is his statement that he 
 
            got poor grades in school.  There is nothing in the record 
 
            that shows claimant hasn't been a good worker and it appears 
 
            he was getting along well in his occupation and job until 
 
            this accident occurred.  Besides causing additional 
 
            problems, claimant's January 26, 1989 injury substantially 
 
            and materially aggravated and lighted up claimant's prior 
 
            back problems from which he was suffering no symptlms on 
 
            January 26, 1989 until he was involved in this work-related 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            accident.
 
            Claimant has restrictions to the extent that he should have 
 
            a job where he sits, stands and walks intermittently and 
 
            where he doesn't have to reach above his shoulders or pick 
 
            up below his knees, and that claimant's job should not 
 
            involve repetitive bending and twisting at the waist (Cl. 
 
            Ex. 30, p. 13).  The doctor did not think claimant was safe 
 
            going back to truck driving over the road but certainly felt 
 
            that he was employable.  The employer has not taken claimant 
 
            back to work and there is no evidence that they have made a 
 
            sincere effort to do so.  There is evidence that there may 
 
            be a job if he travels 300 miles to another town but this is 
 
            an unreasonable expectation under the circumstances.  There 
 
            is no evidence or exhibit that would indicate any sincere 
 
            offer has been made by defendants.  In fact, as mentioned 
 
            earlier, defendants have not even performed the necessary 
 
            requirements under the law and consequently they were 
 
            sanctioned and barred from any activity or presenting any 
 
            evidence in this case.  This would seem to substantiate the 
 
            attitude of the defendants.
 
            Considering claimant's age, education, physical, intellec
 
            tual and emotional status; his prior work history; prior 
 
            injury; his present condition; the location; severity of his 
 
            injury; his motivation; functional impairment; defendants' 
 
            actions of not giving claimant work after an injury; and, 
 
            claimant's inability to find other suitable work after 
 
            making a bonafide effort under the circumstances, the 
 
            undersigned finds claimant has a substantial industrial 
 
            disability.  The undersigned finds, facing the reality of 
 
            the circumstances, that claimant is not employable as the 
 
            doctor related that he should not go back to truck driving.  
 
            If he could get a job as a truck dispatcher, the nature of 
 
            that job would violate claimant's restrictions.  In fact, 
 
            claimant has no transferable skill for a job he would be 
 
            able to perform.  With his lack of education and his age, he 
 
            is not retrainable.  The undersigned, therefore, finds that 
 
            claimant is permanently and totally disabled and his 
 
            permanent total disability should begin from January 26, 
 
            1989, at the rate of $251.83.
 
            The remaining issue is whether defendants KT Leasing, Inc. 
 
            and David Kurk, Inc., are jointly and severally liable or 
 
            whether KT Leasing, Inc. is liable only.  The evidence shows 
 
            claimant was getting paid by or receiving orders at the time 
 
            from both defendants.  It appears that the companies were 
 
            entertwined and one phone number was being used for both 
 
            companies.  The undersigned finds that the evidence shows 
 
            both defendants are jointly and severally liable for the 
 
            award herein.
 
            conclusions of law
 
            When an aggravation occurs in the performance of an em
 
            ployer's work and a causal connection is established, 
 
            claimant may recover to the extent of the impairment. 
 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
 
            N.W.2d 591, 595 (1960).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            The Iowa Supreme Court cites, apparently with approval, the 
 
            C.J.S. statement that the aggravation should be material if 
 
            it is to be compensable.  Yeager v. Firestone Tire & Rubber 
 
            Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            Our supreme court has stated many times that a claimant may 
 
            recover for a work connected aggravation of a preexisting 
 
            condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 
 
            254 N.W. 35 (1934).  See also Auxier v. Woodward State Hosp. 
 
            Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles 
 
            Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 
 
            133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 
 
            252 Iowa 613, 106 N.W.2d 591 (1960).
 
            An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler, 252 Iowa 613, 
 
            620, 106 N.W.2d 591, and cases cited.
 
            If claimant has an impairment to the body as a whole, an 
 
            industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            Functional impairment is an element     which caused claimant to be permanently, totally disabled.
 
            Claimant incurred a work-related injury on January 26, 1989, 
 
            which materially aggravated and lighted up a dormant 
 
            preexisting back condition which resulted in claimant 
 
            incurring impairment to his body as a whole and incurring 
 
            restrictions which would prevent him from performing the 
 
            types of jobs which he did        his entire adult life.
 
            Claimant's January 26, 1989 work injury caused claimant to 
 
            have restrictions which would limit him to a job where he 
 
            can sit, stand and walk intermittently, where he doesn't 
 
            have to reach above his shoulders or pick up below his 
 
            knees, and where he should not have to do repetitive bending 
 
            and twisting at the waist.
 
            Claimant was receiving wages and was employed in such a 
 
            manner so as to be working for or in combination with 
 
            defendants, namely, KT Leasing, Inc. and David Kurk, Inc.
 
            Both defendants, KT Leasing, Inc. and David Kurk, Inc., are 
 
            responsible jointly and severally for the payment of 
 
            claimant's benefits and medical herein.
 
            Defendants are responsible for payment of all of claimant's 
 
            medical expenses incurred as a result of claimant's January 
 
            26, 1989 injury.  These bills are represented by several 
 
            exhibits herein.  It would appear that claimant's exhibits 1 
 
            through 19, 21, and 22 through 34 are the medical bills.  
 
            The undersigned cannot determine as to which ones may have 
 
            been paid but defendants are responsible for all the 
 
            claimant's medical bills and are to be given credit for any 
 
            bills they have previously paid.
 
            order
 
            THEREFORE, it is ordered:
 
            That defendants shall pay claimant compensation for perma
 
            nent total disability at the rate of two hundred fifty-one 
 
            and 83/100 dollars ($251.83) per week during the period of 
 
            claimant's disability commencing with the date of injury, 
 
            January 26, 1989.
 
            That defendants shall pay accrued weekly benefits in a lump 
 
            sum and shall receive credit against the award for weekly 
 
            benefits previously paid.  Claimant has previously been paid 
 
            fourteen thousand four hundred dollars ($14,400) which would 
 
            be allowed as a credit against weekly benefits herein.
 
            That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            That defendants shall pay the costs of this action, pursuant 
 
            to rule 343 IAC 4.33.
 
            That defendants shall file a first report of injury.
 
            That defendants shall file an activity report upon payment 
 
            of this award as required by this agency, pursuant to rule 
 
            343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1991.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr James P Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            Box 1087
 
            Keokuk IA 52632
 
            
 
            Mr Joseph L Hammell
 
            Attorney at Law
 
            110 E Main St
 
            Caledonia MN 55921
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1804; 2003
 
                      Filed April 15, 1991
 
                      Bernard J. O'Malley
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JOSEPH EWART,  :
 
                      :       File No. 931331
 
                 Claimant, :
 
                      :
 
            vs.       :     A R B I T R A T I O N
 
                      :
 
            KT LEASING, INC. and     :        D E C I S I O N
 
            DAVID KURK, INC.,   :
 
                      :
 
                 Employer, :
 
                 Defendant.     :
 
                      :
 
            ___________________________________________________________
 
            
 
            5-1804
 
            Fifty-four-year-old claimant found to be permanently, 
 
            totally disabled.  Claimant completed eighth grade.  
 
            Claimant was a truck driver or dispatcher most of his adult 
 
            life.  Claimant is no longer able to use any of his 
 
            transferable skills due to workers' compensation injury and 
 
            subsequent restrictions.  Claimant can't find work.
 
            
 
            2003
 
            Defendant corporations found jointly and severally liable.  
 
            Found claimant was paid and/or took orders from both 
 
            defendant corporations.
 
            Defendant corporations were closed to any evidence or 
 
            activity by prior order.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1108.40; 1801.1; 1802
 
                                               1806; 2203; 2206
 
                                               Filed December 13, 1991
 
                                               MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY SHUEY,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :         File Nos. 816824
 
            vs.                           :                   854124
 
                                          :                   931336
 
            FURNAS ELECTRIC COMPANY,      :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
            and NORTHBROOK PROPERTY &     :
 
            CASUALTY,                     :
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1108.40; 2203
 
            Claimant was held to be correct in asserting that her carpal 
 
            tunnel syndrome was an occupational disease, but she was 
 
            denied benefits since she was not disabled by that 
 
            condition.  She left work due to a back condition.  The 
 
            subsequent worsening of her condition was attributed to her 
 
            diabetes rather than the employment.
 
            
 
            1801.1; 1802; 1806; 2206
 
            Claimant, a 48-year-old woman with a prior 
 
            employment-related back injury from another employer, a 
 
            severe back injury from an automobile accident and a minor 
 
            back injury with this employer which, nevertheless, removed 
 
            her from her employment, awarded 40 percent permanent 
 
            partial disability.  It was held that the preexisting back 
 
            difficulties were sufficiently well documented and active in 
 
            the sense of needing medical treatment and causing her to 
 
            miss work that apportionment of disability was appropriate.  
 
            Claimant found to lack motivation and was held not to be 
 
            totally disabled.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CONNIE WIEGARD,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File Nos. 931340
 
                                          :                 931339
 
            EXCEL CORPORATION,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a consolidated proceeding in arbitration 
 
            brought by Connie J. Wiegard, claimant, against Excel 
 
            Corporation, employer (hereinafter referred to as Excel), 
 
            and CNA Insurance Companies, insurance carrier, defendants, 
 
            for workers' compensation benefits as a result of alleged 
 
            injuries on May 5, 1989 and August 14, 1989.  On March 25, 
 
            1992, a hearing was held on claimant's petition and the 
 
            matter was considered fully submitted at the close of this 
 
            hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Excel at the time of the alleged injuries
 
            
 
                 2.  On August 14, 1989, claimant received an injury 
 
            arising out of and in the course of employment with Excel.  
 
            Excel disputes that first alleged injury.
 
            
 
                 3.  It was agreed that the injury of August 14, 1989, 
 
            was a cause of a healing period.  Claimant has been paid 
 
            healing period benefits and is only seeking additional heal
 
            ing period benefits in this proceeding from January 15, 1991 
 
            through January 28, 1991 and defendants agree that she was 
 
            not working during this time.
 
            
 
                 4.  If was further agreed that the injury of August 14, 
 
            1989, was a cause of permanent disability, the extent of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            which is in dispute.
 
            
 
                 5.  Claimant's weekly rate of compensation is $190.32 
 
            according to the Industrial Commissioner's published rate 
 
            booklet for the August 14, 1989 injury.
 
            
 
                  6.  It was stipulated that the providers of the 
 
            requested medical expenses would testify as to their reason
 
            ableness and defendants are not offering contrary evidence.  
 
            It was also agreed that they are causally connected to the 
 
            medical conditions upon which the claims herein are based, 
 
            but that the issue of their causal connection to any work 
 
            injury remains an issue to be decided herein.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I. Whether claimant received an injury on May 5, 
 
            1989, arising out of and in the course of employment; 
 
            
 
                  II. The extent of claimant's entitlement to disability 
 
            benefits; and,
 
            
 
                 III. The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From her demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant has worked for Excel, a meat packing firm, 
 
            since 1987 and continues to do so at the present time.  
 
            Initially, she was assigned to work with a Whizzard knife 
 
            trimming neck bones.  At the time of the first alleged 
 
            injury in May 1989, she was operating a machine to remove 
 
            bone from picnic hams and trimming waste with a straight 
 
            knife.  After the first injury, she bid for and received the 
 
            job of CVP operator which is a machine to remove air from 
 
            meat packages and replace it with some other type of gas.  
 
            Currently she is performing a different job on the loin 
 
            line. 
 
            
 
                 On or about May 5, 1989, claimant injured her neck when 
 
            a picnic ham, weighing approximately 8-10 pounds, fell from 
 
            a conveyor striking her in the head.  Claimant's account was 
 
            not seriously challenged by defendants.  Claimant sought 
 
            medical treatment subsequently for neck and arm pain.  
 
            However, claimant had been having right arm and right wrist 
 
            pain problems for approximately 18 months prior to this 
 
            incident according to Excel employee health records.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Claimant was only off very briefly from work and she soon 
 
            returned to light duty under the care of the company ortho
 
            pedic surgeon, Donald Berg, M.D.  Claimant was returned to 
 
            full duty by Dr. Berg on July 21, 1989.
 
            
 
                 Approximately one month prior to the May 5, 1989 
 
            injury, claimant received chiropractic care for severe neck, 
 
            mid-thoracic and low back pain, headaches, burning pain 
 
            between shoulder blades and pain down legs.  The last treat
 
            ment for low back pain was only one day before the May 5, 
 
            1989 incident.
 
            
 
                 On or about August 14, 1989, as stipulated, claimant 
 
            received another work injury.  Claimant's smock became 
 
            entangled in moving equipment and she was pulled with her 
 
            arms towards the machine.  A fellow employee eventually tore 
 
            off the smock preventing further injury but claimant com
 
            plained at the time of bilateral shoulder pain, more serious 
 
            on the left than right.  Claimant received initial care from 
 
            a local hospital emergency room but the care was immediately 
 
            referred back to Dr. Berg.  Dr. Berg and emergency physi
 
            cians suspected a left rotator cuff tear but diagnostic 
 
            studies ruled out this possibility.  Claimant was subse
 
            quently treated for shoulder strain and tendonitis and was 
 
            then returned to light duty work at Excel.  With continued 
 
            symptoms, claimant sought and received a second opinion in 
 
            November 1989 from another orthopedic surgeon, Delwin 
 
            Quenzer, M.D., who is board certified.  Dr. Quenzer con
 
            curred with the treatment to date but recommended injections 
 
            directly into the shoulder and physical therapy.  On 
 
            December 7, 1989, claimant returned to Dr. Berg who released 
 
            her to full duty with a note that her continued shoulder and 
 
            arm symptoms were to be treated by anti-inflammatories and 
 
            exercises.  He apparently rejected the suggestions of Dr. 
 
            Quenzer.
 
            
 
                 Claimant continued to have problems and returned to Dr. 
 
            Berg on March 9, 1989, with complaints of left shoulder, 
 
            arm, neck and low back pain.  Dr. Berg states that this was 
 
            the first time he was told of any low back problems.  
 
            Claimant disputes this stating she told him of problems 
 
            three days after the August 14, 1989 incident at work.  
 
            Apparently a dispute developed between claimant and Dr. Berg 
 
            and he suggested to claimant and defendants that her treat
 
            ment be transferred to someone else.  Treatment was then 
 
            transferred back to Dr. Quenzer who on April 3, 1990, also 
 
            noted a first complaint of neck and back pain.  Upon a diag
 
            nosis of a work related left shoulder impingement, Dr. 
 
            Quenzer continued claimant on light duty and attempted con
 
            servative therapy consisting of an injection into the shoul
 
            der and physical therapy as he had recommended before.  He 
 
            referred claimant to David Boarini, M.D., an neurosurgeon, 
 
            for evaluation and treatment of the neck and low back prob
 
            lems.  When the injection and physical therapy failed to 
 
            alleviate claimant's shoulder and arm symptoms, on July 26, 
 
            1990, Dr. Quenzer surgically relieved the compression on the 
 
            nerves in the shoulder caused by an inflamed tendon by 
 
            removing bone and tissue in the clavicle area of the left 
 
            shoulder.  Claimant then underwent additional physical ther
 
            apy until December 1990.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Boarini's evaluation of claimant's neck and back 
 
            was quite extensive and included the taking of a bone scan, 
 
            cat scan and myelogram.  Claimant became ill after the myel
 
            ogram and received additional treatment for its adverse 
 
            reaction.  She lost work as a result from January 15, 1991 
 
            through January 28, 1991.  Dr. Boarini has no specific diag
 
            nosis and stated in June 1990 that if physical therapy did 
 
            not help, he had nothing further to offer.
 
            
 
                 While recovering from the left shoulder surgery, 
 
            claimant began having left wrist and arm pain which was 
 
            eventually diagnosed and treated as carpal tunnel syndrome 
 
            and ulnar neuritis of the left elbow.  Claimant had no such 
 
            symptoms before August 14, 1989 and the July 1990 surgery.  
 
            She had only extensive problems with her right wrist and arm 
 
            in 1988 and 1989 as stated above.  Dr. Quenzer had scheduled 
 
            surgery to treat these wrist and elbow problems but this was 
 
            cancelled as defendants refused to pay for such treatment.
 
            
 
                 It is found that the work injury of August 14, 1989 was 
 
            a cause of claimant's left shoulder and arm problems begin
 
            ning on August 14, 1989 and continuing at present which 
 
            necessitated the treatment and surgery by Dr. Quenzer.   
 
            However, defendants are not seriously disputing liability 
 
            for the shoulder problems.  Defendants dispute the causal 
 
            connection of the claimant's neck, low back and left wrist 
 
            and elbow complaints.
 
            
 
                 Given the evidence, it is found that claimant's left 
 
            wrist and elbow conditions diagnosed as carpal tunnel syn
 
            drome and ulnar neuritis and treated by Dr. Quenzer follow
 
            ing the July 1990 surgery is causally connected to the 
 
            August 14, 1989 injury.  This finding is based upon the 
 
            uncontroverted opinions of Dr. Quenzer.  He based his opin
 
            ion upon a reasonable degree of medical certainty that this 
 
            was a complication from the surgery for the shoulder prob
 
            lems in July 1990.  This establishes a clear causal chain 
 
            between the injury, the shoulder, the treatment of the 
 
            shoulder, and the wrist and the elbow problems.
 
            
 
                 It could not be found that claimant's neck and low back 
 
            problems are related to either the May 5, 1989 or August 14, 
 
            1989 injuries.  This does not imply that these conditions 
 
            are not work-related, only that claimant failed to show that 
 
            they are causally connected to these two traumatic events.  
 
            The only physician to causally relate the low back condition 
 
            to the August 14, 1989 injury, was a one time evaluator, 
 
            Brent Dixon, D.O.  However, his opinion, as it appears in 
 
            the record, appears to be based upon an incorrect history of 
 
            a report of a twisting back injury on August 14, 1989.  It 
 
            also fails to note claimant's back problems in May and April 
 
            1989.  Absent a better supportive medical opinion, it is not 
 
            possible for the undersigned to find causal connection based 
 
            upon evidence of prior neck and low back pain.  The under
 
            signed could not base a causal connection solely upon 
 
            claimant's subjective explanation at hearing that there was 
 
            a difference between soreness before the May 5, 1989 injury 
 
            and her pain subsequent to this injury.      
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 It is found that the work injury of August 14, 1989, 
 
            was a cause of a significant permanent impairment to the 
 
            body as a whole.  There is no dispute that the injury caused 
 
            permanent impairment.  The issue in dispute was whether it 
 
            extended into the body as a whole.  Dr. Quenzer was the only 
 
            physician to opine as to the extent of permanent impairment.  
 
            His deposition testimony was initially confusing.  He stated 
 
            that it is reasonable to conclude that the impairment was to 
 
            the body as a whole as structures were involved above the 
 
            humerus or arm bone.  He opined that the total impairment 
 
            was 8.5 percent of the upper extremity.  As the upper 
 
            extremity includes both the shoulder and arm, he then 
 
            appeared to contradict himself by saying that the functional 
 
            loss was limited to the arm.  He then stated that the 
 
            impairment could be either to the body as a whole or to the 
 
            arm, either would be medically correct as such matters were 
 
            legal not medical issues.
 
            
 
                 However, looking closely at Quenzer's testimony, he 
 
            bases his impairment rating to the extremity upon dysfunc
 
            tion and sensory loss of the superscapular nerve which 
 
            innervates the rotator cuff muscles.  Clearly, the situs of 
 
            the impairment involves a loss of function to nerve and 
 
            muscles of the shoulder above the arm or humerus bone.   
 
            Also, the last physical therapy note in December 1990 noted 
 
            a failure to bring claimant's shoulder to full range of 
 
            motion.  Furthermore, claimant's testimony established a 
 
            loss of function to the left arm and shoulder.
 
            
 
                 The above finding of shoulder impairment is based upon 
 
            current available evidence.  It is noted that claimant's 
 
            carpal tunnel and ulnar nerve problems are not resolved and, 
 
            according to Dr. Quenzer, she may experience additional per
 
            manent impairment to the hand or arm if treatment is not 
 
            fully successful which would constitute a change of condi
 
            tion from the present warranting further review.
 
            
 
                 From an industrial disability standpoint, claimant's 
 
            loss of earning capacity appears very mild at this time.  
 
            She continues to work at Excel.  Currently she is earning 
 
            approximately $1.50 more per hour than she earned at the 
 
            time of the August 14, 1989 injury.  This is largely due to 
 
            accommodations made by her employer for her disability by 
 
            providing light duty jobs when needed and to claimant's 
 
            ability under the union contract to bid into higher paid, 
 
            less physically demanding jobs at Excel.  Although she has 
 
            no formal work restrictions, the record is clear that heavy, 
 
            repetitive use of her left arm and shoulder is no longer 
 
            possible.  It is unlikely she would be able to perform the 
 
            Whizzard knife or trimming jobs she held in the past.   
 
            Claimant's past work experience has involved lighter duty 
 
            employment as a waitress, cash register clerk, department 
 
            store section manager, sales clerk, and grocery store 
 
            deli-worker.  However, she is precluded from the heavy, 
 
            repetitive production work that she performed prior to 
 
            staring with Excel.
 
            
 
                 Claimant is 43 years of age and has a high school edu
 
            cation. Claimant has considerable motivation to remain work
 
            ing and although she continues to suffer shoulder problems, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            her current job appears suitable for her disability.
 
            
 
                 Therefore, it is found that the work injury of August 
 
            14, 1989, was a cause of only a five percent loss of earning 
 
            capacity at this time.
 
            
 
                 Although the conditions evaluated by Dr. Boarini are 
 
            not found work-related herein, his evaluations and charges 
 
            to date are found causally related to the August 14, 1989 
 
            injury.  He was referred by the authorized treating physi
 
            cian, Dr. Quenzer, for evaluation upon complaints of pain 
 
            after the August 14, 1989 injury.  Dr. Boarini then per
 
            formed various tests, one of which made claimant ill.  These 
 
            test results were provided to Dr. Quenzer and used by him to 
 
            provide an overall picture of claimant's condition.  The 
 
            evaluation and diagnosis of a medical problem whether or not 
 
            it is later found work-related is a part of any treatment 
 
            program.  Consequently, the time off work following the 
 
            adverse reaction to the myelogram is also found a part of 
 
            the healing period from the August 14, 1989 injury.
 
            
 
                 Finally, it is found that further treatment of the left 
 
            wrist and elbow is reasonable and necessary and that Dr. 
 
            Quenzer is the most appropriate physician to provide that 
 
            care given his past clinical experience with claimant and 
 
            these conditions.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            
 
                 In the case sub judice, claimant carried her burden and 
 
            established a work injury on May 5, 1989.  However, this 
 
            injury was not found to have caused any disability at issue 
 
            in this case.
 
            
 
                  II.  It was found that the permanent impairment 
 
            extended beyond the arm and into in the shoulder, therefore, 
 
            the injury is to the body as a whole.  Lauhoff Grain v. 
 
            McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (1980); Dailey v. Pooley 
 
            Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943); Nazarenus v. 
 
            Oscar Mayer & Co., II Iowa Indus. Comm'r Rep. 281 (Appeal 
 
            December 1982); Godwin v. Hicklin, II Iowa Indus. Comm'r 
 
            Rep. 170 (Appeal Decision 1981).
 
            
 
                 When the injury is a cause of permanent impairment to 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            the body as a whole, the degree of permanent disability 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 measured 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 R. 
 
            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.  Examination of 
 
            several factors determines the extent to which a work injury 
 
            and a resulting medical condition caused an industrial 
 
            disability.  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 intellec
 
            tually, emotionally and physically; earnings prior and sub
 
            sequent to the injury; age; education; motivation; func
 
            tional 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 trans
 
            fer for reasons related to the injury is also relevant.  See 
 
            Peterson v. Truck Haven Cafe, Inc. (Appeal Decision, 
 
            February 28, 1985).
 
            
 
                 A showing that claimant had no loss of actual earnings 
 
            does not preclude a finding of industrial disability. See 
 
            Michael v. Harrison County, 34 Biennial Rep., Ia Indus. 
 
            Comm'r 218, 220 (Appeal Decision 1979); Bearce v. FMC Corp., 
 
            465 N.W.2d 531 (Iowa 1991) only held that continued employ
 
            ment with no loss of earnings is significant evidence that 
 
            should not be overlooked in measuring loss of earning 
 
            capacity.
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a mild five percent loss of her earning capacity as a 
 
            result of the work injury.  Such a finding entitles claimant 
 
            to 25 weeks of permanent partial disability benefits as a 
 
            matter of law under Iowa Code section 85.34(2)(u) which is 
 
            five percent of 500 weeks, the maximum allowable number of 
 
            weeks for an injury to the body as a whole in that subsec
 
            tion. 
 
            
 
                 It was also found that claimant was absent from work 
 
            during recovery from the adverse reaction of the myelogram.  
 
            Claimant is entitled to healing period benefits.  Iowa Code 
 
            section 85.34 provides healing period benefits from the date 
 
            of injury until claimant returns to work; until claimant is 
 
            medically capable of returning to substantially similar work 
 
            to the work she was performing at the time of injury; or, 
 
            until it is indicated that significant improvement from the 
 
            injury is not anticipated, whichever occurs first.  As 
 
            claimant's last return to work following treatment for the 
 
            August 14, 1989 injury occurred on January 29, 1991, perma
 
            nent partial disability benefits will begin at that time.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if she has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 
                 In the case at bar, all requested benefits were found 
 
            causally connected to the August 14, 1989 injury.  Given the 
 
            parties' stipulation as to reasonableness, they will be 
 
            awarded.
 
            
 
                 Also, care of the carpal tunnel and ulnar neuritis con
 
            ditions by Dr. Quenzer will be ordered. 
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant twenty-five (25) 
 
            weeks of permanent partial disability benefits at a rate of 
 
            one hundred ninety and 32/l00 dollars ($190.32) per week 
 
            from January 29, 1991.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from January 15, 1991 through January 28, 1991, at 
 
            the rate of one hundred ninety and 32/l00 dollars ($190.32) 
 
            per week.
 
            
 
                 3.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 
            of these expenses paid by her.  Otherwise, defendants shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            
 
                 4.  Defendants shall provide care and treatment of 
 
            claimant's left wrist and arm problems, including but not 
 
            limited to the diagnosed conditions of carpal tunnel syn
 
            drome and ulnar neuritis of the elbow.  Such care shall be 
 
            provided as offered and directed by Dr. Quenzer.
 
            
 
                 5.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 6.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 7.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 8.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Steven J. Crowley
 
            Mr. William Bauer
 
            Attorneys at Law
 
            100 Valley Street
 
            P O Box 517
 
            Burlington, Iowa  52601
 
            
 
            Ms. Dorothy L. Kelley
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed April 23, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CONNIE WIEGARD,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File Nos. 931340
 
                                          :                 931339
 
            EXCEL CORPORATION,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803 - Non-precedential, extent of disability case.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed April 23, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CONNIE WIEGARD,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File Nos. 931340
 
                                          :                 931339
 
            EXCEL CORPORATION,            :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803 - Non-precedential, extent of disability case.