BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            SANDI EVANS,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 931825
 
            PETERSON HARNED VON MAUR,       
 
                                                  A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            KEMPER INSURANCE GROUP,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed August 20, 1992 as corrected by the nunc pro tunc 
 
            order August 25, 1992 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            
 
            Claimant has the burden of proving that her work injury on 
 
            May 22, 1989 is the cause of her alleged permanent 
 
            disability.  Drs. Colby and Robb who treated claimant 
 
            shortly after her work injury gave no indication that 
 
            claimant had sustained a permanent impairment.  In fact, Dr. 
 
            Robb indicated that he was hopeful of a full return to work.
 
            Dr. Neiman's opinions can be given little weight.  His 
 
            opinion on the onset of carpal tunnel syndrome was 
 
            confusing.  At one point he seemed to attribute claimant's 
 
            bilateral carpal tunnel syndrome to her fall (Dr. Neiman's 
 
            deposition, page 23) and at another point he indicated it 
 
            developed over a period of time (Dr. Neiman's deposition, p. 
 
            47).  In addition, he was not award of all the medical 
 
            records or claimant's complaints of pain prior to the work 
 
            injury.  (See e.g., pp. 22, 43 and 52, Dr. Neiman's 
 
            deposition.)  In addition, Dr. Neiman was not a treating 
 
            physician and his evaluation was more chronologically 
 
            distant from the work injury than the treatment by the 
 
            treating physicians.
 
            
 
            There is insufficient evidence in this record to conclude 
 
            that claimant has proved that her injury resulted in a 
 
            permanent disability.
 
            
 
            Claimant shall pay the costs of the appeal, including the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                               BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. John T. Nolan
 
            Attorney at Law
 
            22 East Court St.
 
            Iowa City, Iowa 52240
 
            
 
            Mr. Craig A. Levien
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 E. Third St.
 
            Davenport, Iowa 52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1800
 
                                            Filed August 17, 1993
 
                                            Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            SANDI EVANS,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 931825
 
            PETERSON HARNED VON MAUR,       
 
                                                  A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            KEMPER INSURANCE GROUP,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1800
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that she sustained a permanent low back injury.
 
            Claimant also failed to prove that bilateral carpal tunnel 
 
            syndrome, diagnosed three years after the injury, was 
 
            related to her fall.  Clinical tests typically used to 
 
            determine the existence of carpal tunnel syndrome produced 
 
            negative results for more than two years.  During this time, 
 
            claimant was not working.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            SANDI EVANS,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 931825
 
            PETERSON HARNED VON MAUR,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE GROUP,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Sandi 
 
            Evans, claimant, against Peterson Harned Von Maur, employer, 
 
            and Kemper Insurance Group, insurance carrier, as 
 
            defendants.
 
            
 
                 The record in the case consists of the testimony from 
 
            the claimant, Karen Cumblad (rehabilitation specialist), 
 
            Ginger Reubin (claimant's daughter), and Christine Wentzien 
 
            (store manager for Von Maur); claimant's exhibits 1 through 
 
            24, excluding the first two entries under exhibit 19, and 
 
            exhibit 6a and, defendants' exhibits 1 through 11.
 
            
 
                                    PROCEDURES
 
            
 
                 Defendants objected to portions of the deposition of 
 
            Richard Neiman, M.D.  The basis of the objection(s) is that 
 
            Dr. Neiman provided new opinions based on an examination 
 
            which was conducted on May 6, 1992, a date well beyond 
 
            claimant's discovery deadline of March 23, 1992.  The 
 
            examination apparently revealed bilateral carpal tunnel 
 
            syndrome, a condition for which surgery has been 
 
            recommended.  Defendants also objected to the report/notes 
 
            from Dr. Neiman which memorialize his findings.
 
            
 
                 Defendants' objections are overruled.  The notes from 
 
            the examination of May 6, 1992 are included in defendants' 
 
            own exhibits (Defendants' Exhibit 4, pp. 11-13) and any 
 
            resulting testimony from Dr. Neiman was considered.
 
            
 
                 Claimant also attempts to amend her petition to ask for 
 
            penalty benefits under Iowa Code section 86.13.
 
            
 
                 Iowa Rule of Civil Procedure 88 states:
 
            
 
                 A party may amend a pleading once as a matter of 
 
                 course at any time before a responsive pleading is 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 served or, if the pleading is one to which no 
 
                 responsive pleading is required and the action has 
 
                 not been placed upon the trial calender, the party 
 
                 may so amend it at any time within twenty days 
 
                 after it is served.  Otherwise, a party may amend 
 
                 a pleading only by leave of court or by written 
 
                 consent of the adverse party.  Leave to amend, 
 
                 including leave to amend to conform to the proof, 
 
                 shall be freely given when justice so requires.
 
            
 
                 At the eleventh hour, claimant has tried to include 
 
            numerous theories in this case.  Up to this point, in the 
 
            interest of justice, the undersigned has allowed all of 
 
            these theories on the grounds that defendants have not been 
 
            prejudiced.
 
            
 
                 However, claimant's amendment for 86.13 benefits will 
 
            not be allowed.  Case preparation/discovery was to have been 
 
            completed by claimant on March 23, 1992.  If she had needed 
 
            more time to complete her case, a motion to extend the 
 
            deadlines would have been appropriate.  Claimant elected not 
 
            to file the same, but attempted to completely change his 
 
            pleadings at the last minute.  Defendants have been given no 
 
            opportunity to defend the claim.
 
            
 
                                      ISSUES
 
            
 
                 The parties submit the following issues for resolution:
 
            
 
                 1.  Whether there is a causal relationship between 
 
            claimant's injury and a permanent disability;
 
            
 
                 2.  Whether claimant is entitled to additional 
 
            temporary total disability benefits, healing period 
 
            benefits, or permanent partial disability or total 
 
            disability benefits;
 
            
 
                 3.  Whether claimant is entitled to medical benefits as 
 
            provided for under Iowa Code section 85.27; and,
 
            
 
                 4.  Whether defendants are entitled to credit for 
 
            benefits paid under Iowa Code section 85.38(2).
 
            
 
                 Defendants raised the affirmative defense of whether 
 
            some of claimant's medical bills were authorized.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Sandi Evans, was born on December 19, 1939.  
 
            At the time of the hearing, she was 52 years old.  She 
 
            graduated from high school, and has received no further 
 
            education.
 
            
 
                 Claimant's work history has been concentrated in sales 
 
            associate positions.  Additionally, she has worked in the 
 
            laundry department of a retirement home.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 In late 1988, claimant began working for the defendant, 
 
            Peterson Harned Von Maur, a retain department store in Iowa 
 
            City, Iowa.  As a sales associate, her job duties included 
 
            setting up displays, unpacking shipments, coordinating 
 
            clothes and assisting customers.
 
            
 
                 On May 22, 1989, as claimant was helping a customer she 
 
            slipped on a wet floor and fell down.  She stated that her 
 
            feet went out from under her, and she landed on her hips.  
 
            As claimant fell, she tried to catch herself with her hands.
 
            
 
                 Claimant reported the incident to her supervisor and 
 
            was told to see Anthony Colby, M.D.  His notes, found at 
 
            pages 1 through 5 of claimant's exhibits and defendants' 
 
            exhibit 2, reveal that claimant was complaining of pain 
 
            located primarily on the right side.  Dr. Colby ordered x-
 
            rays of the right hip, right jaw and both palms.  All 
 
            results were negative for fractures and/or dislocations.  he 
 
            diagnosed multiple soft tissue injuries of the right hip and 
 
            hand, and referred her to a chiropractor, Myron Brown.  It 
 
            should be noted that in June of 1991, claimant returned to 
 
            Dr. Colby requesting a referral to a neurosurgeon and a 
 
            disability rating.  Dr. Colby was unable to document any 
 
            disability and referred claimant to the University of Iowa 
 
            (Defendants' Exhibit 2, pages 18-19).
 
            
 
                 Dr. Brown treated claimant on approximately sixteen 
 
            occasions from May 26 through June 30, 1989.
 
            
 
                 In July of 1989, claimant was sent to W.J. Robb, M.D., 
 
            an orthopedic specialist at the Iowa Musculoskeletal Center 
 
            in Cedar Rapids, Iowa.  After reviewing x-rays and 
 
            conducting an examination, he diagnosed a lumbosacral 
 
            strain.  He noted that claimant had a deconditioned 
 
            lumbosacral spine, minimal degenerative arthritis, and was 
 
            hypersensitive to palpation of the low back muscles.  He 
 
            recommended an "aggressive" program of exercises and 
 
            physical therapy.  Additionally, claimant was given 
 
            ibuprofen (Claimant's Exhibit 1, pp. 19-20).
 
            
 
                 Claimant's course of treatment with Dr. Robb continued 
 
            through January 16, 1990, at which time he released her to 
 
            return to part-time work.  He rendered no opinion addressing 
 
            whether claimant had sustained any permanent impairment.  
 
            His final notes, a letter dated January 27, 1990, stated the 
 
            following instructions:
 
            
 
                    ...I would advise you that her limitations as 
 
                 prescribed in light duty would consist of 
 
                 repetitive bending not to exceed 60 times an hour 
 
                 and the weight not to be in excess of 20 lbs.  The 
 
                 limitations are due to a residual moderate 
 
                 contracture of the paravertebral muscles and to a 
 
                 lesser extent the hamstring muscles which, though 
 
                 improved, will take additional time to resolve.
 
            
 
                    I would point out that it is her endurance or 
 
                 ability to work that is her primary restriction in 
 
                 addition to the weight and number of flexions of 
 
                 the back carried out.  When her flexibility and 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 muscle strength improve, hopefully we can return 
 
                 her to a full day's work at her previous job 
 
                 description.
 
            
 
            (Def. Ex. 7, p. 36)
 
            
 
                 In November of 1989, claimant was examined by V. 
 
            Varner, M.D.  The evidence does not address Dr. Varner's 
 
            specialty, although the undersigned believes he is a 
 
            psychiatrist.  He diagnosed claimant as having an adjustment 
 
            disorder with mixed features secondary to pain and loss of 
 
            employment.  He suspected an injury at the L4-L5 level (Cl. 
 
            Ex. 3, pp. 9-10).
 
            
 
                 In November of 1989, claimant received another 
 
            evaluation from Richard Neiman, M.D.  He noted minor 
 
            limitation of range of motion of the back, tenderness of the 
 
            sciatic notch, and positive straight leg raising tests.  He 
 
            stated that claimant appeared to have a foot drop on the 
 
            left side.  He suggested that claimant had a possible 
 
            herniated disc, and recommended that claimant undergo an MRI 
 
            of the lumbosacral spine.  Results of the MRI were normal, 
 
            and Dr. Neiman recommended a soft tissue manipulation 
 
            program.  He stated that claimant appeared to have a chronic 
 
            lumbosacral strain (Cl. Ex. 6, pp. 65-69).  In June of 1991, 
 
            almost two years after he had last examined claimant, Dr. 
 
            Neiman restricted her lifting activities to not more than 50 
 
            pounds (Def. Ex. 4, p. 10).
 
            
 
                 The undersigned is unable to find any medical records 
 
            from April 1990 until June 27, 1991, at which time she 
 
            visited Thomas R. Nicknish, M.D.  His neurological exam 
 
            revealed that claimant had a normal gait although she 
 
            favored her right hip.  Flexion of both the right and left 
 
            wrists was normal, and Dr. Nicknish was unable to assess any 
 
            neurological impairment (Cl. Ex. 8, p.125).
 
            
 
                 In July of 1991, claimant began a series of 
 
            appointments with the University of Iowa Hospitals and 
 
            Clinics.  She sought treatment from Vincent Traynelis, M.D., 
 
            who noted that claimant complained of pain during several 
 
            tests, but he was unsure as to what was causing her 
 
            persistent pain.  He did not detect a "clear-cut radicular 
 
            pattern" and was not inclined to proceed with further 
 
            imaging studies or neurosurgical procedures.  He did 
 
            recommend use of a TENS unit and a referral to a pain 
 
            clinic, and noted that "for litigation reasons" claimant was 
 
            interested in obtaining an estimate as to the degree of pain 
 
            she was in.  It is important to note that claimant displayed 
 
            a negative Phalen's test and a negative Tinel's sign at both 
 
            wrists (Cl. Ex. 7, pp. 89-90).  Claimant also saw Todd 
 
            Emery, M.D., a physician associated with the pain clinic at 
 
            the University of Iowa.  After a physical examination, he 
 
            assessed claimant's problem as chronic musculoskeletal low 
 
            back and hip pain with unclear radicular components.  He 
 
            performed trigger point injections in the region of the 
 
            sacroiliac joints.  She was to follow up with the pain 
 
            clinic in two weeks (Cl. Ex. 7, pp. 91-92).
 
            
 
                 Notes from claimant's follow-up visit to the pain 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            clinic on August 12, 1991, show that she continued to 
 
            complain of low back pain radiating bilaterally into the 
 
            left lower extremity, the right hip and the middle of the 
 
            back.  She reported "extreme emotional lability" over the 
 
            past week which was associated with the sacroiliac steroid 
 
            injections.  The TENS unit provided moderate symptomatic 
 
            relief.  Current medications included Ascriptin and 
 
            Amitriptyline.  Plain radiographies and an EMG were normal, 
 
            and the physical examination showed exquisite tenderness and 
 
            positive straight leg raising tests at less than 20 degrees.  
 
            Again, claimant's condition was assessed as chronic 
 
            musculoskeletal low back pain with poor response to the 
 
            steroid injections.  It was decided she should continue the 
 
            Amitriptyline to help her maintain a normal sleep pattern 
 
            and several other medications to help stomach problems.  It 
 
            was recommended that claimant be advised on relaxation and 
 
            other behavioral techniques to improve her "coping 
 
            mechanisms."  She was to return to the pain clinic in one 
 
            month (Cl. Ex. 7, pp. 87-88).
 
            
 
                 On September 12, 1991, claimant returned to the pain 
 
            clinic for relaxation training.  She was advised to contact 
 
            the local mental health center for additional training on 
 
            relaxation and for supportive counseling.  Claimant 
 
            identified pain, inability to work and increased dependency 
 
            as major stresses in her life (Cl. Ex. 7, p. 86).
 
            
 
                 Dr. Neiman, who saw claimant two times in 1989, was 
 
            deposed for the case on May 20, 1992.  It is important to 
 
            note that claimant's discovery deadline was on March 23, 
 
            1992; however, defense counsel agreed to participate in the 
 
            deposition subject to the following objection, found at 
 
            pages 3 through 4 of Dr. Neiman's deposition:
 
            
 
                 I agreed and told the claimant's attorney in this 
 
                 case that if there were depositions that needed to 
 
                 be taken that had not been scheduled, I'd had no 
 
                 objection to that.  Assuming again there were no 
 
                 new matters brought up in either exams or anything 
 
                 else that I would not have an opportunity to 
 
                 rebut, I'll just state at the outset that I'm 
 
                 prepared at this time to go forward with this 
 
                 deposition, but I'm reserving all rights to object 
 
                 to the introduction of portions of this deposition 
 
                 that include new matters that I was not made aware 
 
                 of.
 
            
 
                    Specifically I'll state for the record that the 
 
                 only records I've had from Dr. Neiman previously 
 
                 to today is the visit that he had with Claimant 
 
                 Sandi Evans in his letter November 16th, 1989, a 
 
                 letter that he wrote to Vern Varner commemorating 
 
                 that visit, December 6th, 1989 letter to Sandi 
 
                 Evans from the office about a bill that had to be 
 
                 paid, and Dr. Neiman's handwritten notes of 
 
                 November 16th, 1989, and a prescription for a 
 
                 swimming exercise program.  I also received a 
 
                 letter when I obtained the Social Security 
 
                 records, a letter from Dr. Neiman to Felecia 
 
                 McHale dated June 25th, 1992.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                    This morning in an attempt to find out if there 
 
                 were any new records, I was told that Dr. Neiman 
 
                 had, after the discovery deadline on May 6th, 
 
                 1992, apparently performed an examination of Sandi 
 
                 Evans and as a result authored some further 
 
                 dictation and, in addition to the exam, also 
 
                 conducted some EMG studies in determining whether 
 
                 she had a carpal tunnel syndrome.
 
            
 
                    For the record the testing that was done, the 
 
                 examination, and the diagnosis of carpal tunnel is 
 
                 totally new -- unknown to me and was never 
 
                 previously disclosed by the Claimant.  The results 
 
                 of these testings had occurred after the time 
 
                 period of exams and discovery was set by 
 
                 prehearing deadline.
 
            
 
                    So by participating in this deposition I am not 
 
                 waiving in any manner my objection to new matters 
 
                 that are being raised.  But I am fully prepared to 
 
                 go forward at this time and participate with the 
 
                 deposition.
 
            
 
                 At page 12 of the transcript of Dr. Neiman's 
 
            deposition, Dr. Neiman relates claimant's lumbosacral strain 
 
            to the fall at Von Maur.  He classified her pain as 
 
            legitimate, although also states that claimant has a 
 
            component of emotional lability as well (Neiman Dep., p. 
 
            22).  His final diagnosis was that of chronic lumbosacral 
 
            strain, chronic cervical strain and bilateral carpal tunnel 
 
            syndrome (Neiman Dep., p. 23).  He is of the opinion that 
 
            all of claimant's physical problems were caused by the 
 
            work-related fall in Von Maur on May 22, 1989.  However, he 
 
            states that she "unequivocally has developed a carpal tunnel 
 
            syndrome over the last three years since my evaluation, 
 
            November 16th, 1989." (Neiman Dep, p. 23)
 
            
 
                 Impairment ratings were also addressed by Dr. Neiman.  
 
            using the American Medical Association Guides to the 
 
            Evaluation of Permanent Impairment, 3rd ed., specifically 
 
            Tables 53 and 60, he believed claimant sustained a 10 
 
            percent permanent impairment to the lower back (Neiman Dep., 
 
            pp. 29-30).  Using Tables 53 and 55, he stated that claimant 
 
            had sustained an 8.5 percent permanent impairment to the 
 
            cervical spine (Neiman Dep., pp. 30-31).  Dr. Neiman goes on 
 
            to state that if claimant underwent a rigorous physical 
 
            therapy program and was able to regain full range of motion 
 
            in both her neck and low back, she would continue to have an 
 
            impairment of 9 percent of the whole person due to the 
 
            longevity of her pain (Neiman Dep., pp. 31-33).
 
            
 
                 Dr. Neiman, who diagnosed carpal tunnel syndrome in 
 
            both claimant's left and right wrists, assessed claimant's 
 
            functional impairment due to her symptoms.  He stated that, 
 
            using Table 15 of the Guides, he would assess 25 percent 
 
            impairment to each hand (Neiman Dep., pp. 33 and 35).  He 
 
            then "interpolated" each impairment to the whole person, and 
 
            gave the following opinion on direct examination:
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Q.  Okay, and as I understand it, you say she's 
 
                 got a twenty-five percent impairment to both -- to 
 
                 each, the right and left hand both?
 
            
 
                 A.  That according to Table 15.
 
            
 
                 Q.  All right, and what does that interpolate to 
 
                 the whole man disability when you go twenty-five 
 
                 percent of the right hand and twenty-five percent 
 
                 of the left hand?
 
            
 
                 A.  Well, generally most -- you can interpolate it 
 
                 to the whole person, but most people generally 
 
                 will keep it into the upper extremity.  But if you 
 
                 use Table Number -- I'm sorry, I need to catch 
 
                 this here.  I need to look at this for a second.  
 
                 Sorry.
 
            
 
                    The impairment rating of twenty-five percent of 
 
                 the upper extremity would translate into fifty 
 
                 percent of the whole person on each side.  But the 
 
                 problem, however, exists just in the hand itself 
 
                 or the upper extremity and doesn't refer pain up 
 
                 to the shoulder level for the most part.  So I 
 
                 would basically think it would be better just to 
 
                 stay with the twenty-five percent level of 
 
                 impairment of the upper extremity on both hands, 
 
                 so fifty percent, rather than the whole person.
 
            
 
                 Q.  So, in other words, you're saying a fifty 
 
                 percent functional impairment of the hands?
 
            
 
                 A.  Of the upper extremities.
 
            
 
                 Q.  Upper extremities.  All right.
 
            
 
                 A.  I think is probably a more correct way to look 
 
                 at it.
 
            
 
                 Q.  Can you put all these together now in terms of 
 
                 the low back at seven percent, the cervical back 
 
                 at eight and a half -- or what did you say, nine 
 
                 and a half percent?
 
            
 
                 A. I think we read eight and a half percent.
 
            
 
                 Q.  Eight and a half percent, and then as it is 
 
                 also involved with the upper extremities.
 
            
 
                 A.  Yes, sir.
 
            
 
                 Q.  And would you do that, please?
 
            
 
                 A.  Well, basically the impairment rating of the 
 
                 whole person would be eighteen point five percent, 
 
                 and a separate rating, as far as the upper 
 
                 extremities, would be a fifty percent.
 
            
 
                 Q.  So that's eighteen point five of the whole 
 
                 person plus fifty percent of the upper extremity.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 A.  Upper extremities, yes, sir.
 
            
 
                 Q.  All right.  Now given that impairment rating, 
 
                 can you give us your best medical judgment with 
 
                 the neurological specialty involved as to what are 
 
                 her functional daily limitations, such as what 
 
                 routine physiological tasks is she limited at?
 
            
 
                 A.  Well, I think she'll have difficulties with 
 
                 repetitive motion both of the neck and the 
 
                 cervical spine.  She needs to avoid excessive 
 
                 flexion, extension, and lateral rotation both of 
 
                 the lower back and less so as far as the cervical 
 
                 spine.  I think that she is incapable of 
 
                 repetitive use of the hands with the carpal tunnel 
 
                 syndrome, but again this may improve dependent 
 
                 upon the results of the surgical procedure.
 
            
 
                 Q.  Excuse me.  Did you say she is capable or 
 
            incapable?
 
            
 
                 A.  Incapable of repetitive use of the hands.
 
            
 
            (Neiman Dep., pp. 35-37)
 
            
 
                 It is noted that questions relating to any impairment 
 
            sustained by claimant due to the fall of May 22, 1989, were 
 
            objected to by defendants' counsel.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained a permanent disability and is therefore entitled 
 
            to healing period benefits.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of May 22, 
 
            1989, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 Claimant has been treated and/or evaluated by many 
 
            doctors.  It appears from the evidence that the only 
 
            authorized treating physicians were Dr. Colby and Dr. Robb.  
 
            Dr. Colby treated claimant from May through June 1989, at 
 
            which time she began seeing Dr. Robb.  Dr. Robb's treatment 
 
            started in July of 1989 and continued through January of 
 
            1990.  Although it appears that claimant was to have 
 
            returned to Dr. Robb for continued treatment after January 
 
            190, the undersigned is unable to locate any records that 
 
            confirm continued visits with him.  Physical therapy, 
 
            prescribed by Dr. Robb and administered by Dave Johnson 
 
            continued from August 1989 through December 1989.  Although 
 
            Mr. Johnson's handwriting is for the most part, illegible, 
 
            the undersigned was able to decipher some of the notes which 
 
            indicate that claimant stopped physical therapy due to an 
 
            inability to pay for gas to travel to and from treatments.  
 
            Perhaps unbeknownst to claimant, defendants are responsible 
 
            to pay for "reasonably necessary transportation expenses 
 
            incurred" for the treatment.  However, that does not excuse 
 
            claimant's behavior, as she should have contacted either the 
 
            employer or the insurance carrier to receive expense 
 
            funding.
 
            
 
                 Nonetheless, Dr. Robb's final notes dated January 1990 
 
            indicate that claimant was able to return to work in a light 
 
            duty capacity, and he anticipated an eventual release to 
 
            return to work with full duty assignments as a salesperson.
 
            
 
                 Dr. Neiman's opinions are rejected.  He saw claimant in 
 
            November of 1989 on two occasions, and made the same 
 
            diagnosis as Dr. Robb, that of chronic lumbosacral strain.  
 
            Although he later diagnosed bilateral carpal tunnel 
 
            syndrome, he admitted in his deposition that this condition 
 
            had developed after his examinations in November of 1989.  
 
            It is difficult to reconcile this statement with his opinion 
 
            that the carpal tunnel was caused by the fall in May of 
 
            1989.  Likewise, traditional tests used to detect carpal 
 
            tunnel syndrome performed by Dr. Traynelis in July of 1991 
 
            were negative.
 
            
 
                 Claimant appeared to be in a great amount of pain 
 
            during the hearing.  Pain has certainly been a major theme 
 
            of her complaints throughout the past several years when one 
 
            reads the medical evidence.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 However, nothing in the medical evidence indicates 
 
            substantial or significant clinical findings which correlate 
 
            with the objective pain expressed by claimant.  It has been 
 
            noted by the agency that pain which is not substantiated by 
 
            clinical findings is not a substitute for impairment.  See 
 
            Waller v. Chamnberlain Mfg., II Iowa Ind. Comm'r Rep. 419, 
 
            425 (1981).
 
            
 
                 As a result, it is found that although claimant did 
 
            sustain an injury which arose out of and in the course of 
 
            her employment, the evidence supports a finding that she 
 
            did not sustain any permanent impairment.  It is found that 
 
            claimant should be paid temporary total disability benefits 
 
            from May 27, 1989 through  29, 1989; August 22, 1989 through 
 
            October 31, 1989; and November 27, 1989 through January 22, 
 
            1990.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant temporary total 
 
            disability benefits at the rate of eighty-one and 97/100 
 
            dollars ($81.97) per week commencing May 27, 1989 for the 
 
            time periods listed above.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That due to the condition of the exhibits, each party 
 
            shall pay their own costs of this action, pursuant to rule 
 
            343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of August, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                      ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr John T Nolan
 
            Attorney at Law
 
            22 E Court St
 
            Iowa City IA 52240
 
            
 
            Mr Craig A Levien
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E Third St
 
            Davenport IA 52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                               5-1800
 
                                               Filed August 20, 1992
 
                                               Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            SANDI EVANS,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 931825
 
            PETERSON HARNED VON MAUR,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE GROUP,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1800
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that she sustained a permanent low back injury.
 
            Claimant also failed to prove that bilateral carpal tunnel 
 
            syndrome, diagnosed three years after the injury, was 
 
            related to her fall.  Clinical tests typically used to 
 
            determine the existence of carpal tunnel syndrome produced 
 
            negative results for more than two years.  During this time, 
 
            claimant was not working.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            SANDI EVANS,                  :
 
                                          :
 
                 Claimant,                :      File No. 931825
 
                                          :
 
            vs.                           :          N U N C
 
                                          :
 
            PETERSON HARNED VON MAUR,     :           P R O
 
                                          :
 
                 Employer,                :          T U N C
 
                                          :
 
            and                           :         O R D E R
 
                                          :
 
            KEMPER INSURANCE GROUP,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            The last sentence of the last paragraph of the Analysis and 
 
            Conclusions of Law portion of this decision is being 
 
            corrected to reflect the correct dates of temporary total 
 
            disability benefits.  It should read as follows:
 
            It is found that claimant should be paid temporary total 
 
            disability benefits from May 27, 1989 through July 29, 1989; 
 
            August 22, 1989 through October 31, 1980; and November 27, 
 
            1989 through January 22, 1990.
 
            Otherwise, the decision filed August 20, 1992 remains the 
 
            same.
 
            Signed and filed this ____ day of August, 1992.
 
            
 
            
 
            
 
                                      ________________________________
 
                                      PATRICIA J. LANTZ
 
                                      DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies To:
 
            
 
            Mr John T Nolan
 
            Attorney at Law
 
            22 E Court St
 
            Iowa City IA 52240
 
            
 
            Mr Craig A Levien
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E third St
 
            Davenport IA 52801
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            COLLEEN R. LEMEN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 931907
 
            WELLS MFG. CORP.,             :
 
                                          :    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 proceeding in arbitration brought by Colleen 
 
            Lemen, claimant, against Wells Manufacturing Corporation, 
 
            employer, hereinafter referred to as Wells, and CNA 
 
            Insurance Company, insurance carrier, defendants, as a 
 
            result of an alleged injury on August 21, 1989.  On May 13, 
 
            1992, a hearing was held on claimant's petition and the mat
 
            ter was considered fully submitted at the close of this 
 
            hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  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.  On August 21, 1989, claimant received an injury 
 
            arising out of and in the course of employment with Wells.
 
            
 
                 2.  Claimant has been paid her entitlement to temporary 
 
            total or healing period benefits.
 
            
 
                 3.  At the time of injury, claimant's gross rate of 
 
            weekly compensation was $245.60; she was married; and, she 
 
            is entitled to four exemptions.  Therefore, claimant's 
 
            weekly rate of compensation is $173.73 according to the 
 
            Industrial Commissioner's published rate booklet for FY 90. 
 
            
 
                 4.  All requested medical benefits have been or will be 
 
            paid by defendants. 
 
            
 
                                      ISSUE
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding is the extent of claimant's entitle
 
            ment to permanent disability benefits.
 
            
 
                                 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 worked for Wells for the last six years and 
 
            continues to do so at the present time.  Since 1986 she has 
 
            operated a printing press.  Claimant is required to repeti
 
            tively use her hands, arms, and shoulders in operating the 
 
            press and loading and unloading the press.  She regularly 
 
            lifts boxes weighing from 15-35 pounds and on rare occasions 
 
            over 40 pounds.  The boxes have become small and lighter 
 
            since the injury herein due to a plant wide ergonomics 
 
            program.  
 
            
 
                 Claimant's injury in August 1989 involved overuse pain 
 
            syndrome in her right wrist, and bilateral arm and shoulder 
 
            pain.  Initially, the pain was limited to the wrist but it 
 
            later developed bilaterally into the shoulders.  Several 
 
            diagnoses have been made of claimant's condition from 
 
            several doctors.  It is found that claimant suffers from 
 
            right wrist carpal tunnel syndrome and a separate condition 
 
            known as fibromyalgia of the arms, shoulder and neck.  Both 
 
            of these conditions are causally connected to the repetitive 
 
            use injury of August 21, 1989.
 
            
 
                 The above findings are based upon the views of Karen 
 
            Steele, D.O., who treated claimant beginning in May 1990.  
 
            She has greater clinical involvement with claimant and it 
 
            was only after her diagnosis and treatment that claimant was 
 
            able to return to work.  Claimant was referred to Dr. Steele 
 
            by Kevin F. Smith, M.D., a specialist in occupational 
 
            medicine whose diagnosis of upper body fatigue is not radi
 
            cally different from the views of Dr. Steele.  The most 
 
            recurrent diagnosis has been bilateral thoracic outlet syn
 
            drome or what is an impingement of the nerves in the shoul
 
            der area.  This was first suspected by an orthopedic sur
 
            geon, Scott Neff, D.O., and diagnosed by another orthopedic 
 
            surgeon, Alexander Matthews, M.D., in October 1989.  Such a 
 
            diagnosis is again not much different from the views of Dr. 
 
            Steele.  This diagnosis is rejected by Douglas Donner, M.D., 
 
            and Michael Finan, M.D., two one-time evaluators whose views 
 
            are out of the main stream of opinion in this case.  The 
 
            last evaluator, Karen Kienker, M.D., a physical medicine 
 
            specialist, diagnosed in January 1992 myofascial pain syn
 
            drome and possible thoracic outlet syndrome.  Again, this is 
 
            not much different than the diagnoses of Dr. Steele.
 
            
 
                 The work injury of August 21, 1989 is a cause of a sig
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            nificant permanent partial impairment to the body as a 
 
            whole.  Clearly the injury extends beyond the wrist and arm 
 
            and into the shoulder and neck given the views of Dr. Steele 
 
            and others.  The exact percentage of impairment is not 
 
            important in an industrial case.  Claimant continues to 
 
            experience wrist, arm, shoulder and neck pain but is able to 
 
            return to her job at Wells.  Dr. Steele relates this impair
 
            ment to her work at Wells in August 1989.  Only Dr. Finan 
 
            and a licensed physical therapist, Thomas Bower, opine that 
 
            claimant has no physical impairment.  Dr. Finan's views are 
 
            questionable as he recommends restricted physical activity 
 
            but opines in the same report that such restrictions are not 
 
            physical impairments.
 
            
 
                 Both Dr. Finan and Bower imply that claimant's symptoms 
 
            are psychological in origin.  Bower believes claimant is 
 
            exaggerating her symptoms.  Neither were qualified at hear
 
            ing to render opinions in the area of psychiatry or psychol
 
            ogy.  After Dr. Finan's evaluation, claimant received treat
 
            ment for chronic pain management from a licensed psycholo
 
            gist, Sam Graham.  Never once did Graham question the 
 
            authenticity of claimant's chronic pain.  His treatment 
 
            proved successful and she was released from his care about 
 
            the same time she returned to work full time.  Bower's views 
 
            as to exaggeration of symptoms conflicts with every other 
 
            physician involved in this case except for Dr. Finan.  In 
 
            any event, to the extent that psychological problems are 
 
            contributing to pain behavior, it is found that they as well 
 
            as the physical factors are causally connected to the work 
 
            injury herein.  She had no chronic pain behavior before 
 
            incurring her injury of August 21, 1989.
 
            
 
                 More important to an industrial disability or a loss of 
 
            earning capacity analysis are physician imposed work 
 
            restrictions.  As Dr. Steele's views are given the most 
 
            weight, her restrictions are given the greater weight.  As a 
 
            result of the injury, claimant must permanently avoid cold 
 
            and damp work environments; repetitive wrist movements; any 
 
            sustained body position without the ability to move about; 
 
            and repetitive lifting from the floor or from overhead.  Dr. 
 
            Kienker also suggests limited lifting over 20 pounds and no 
 
            assembly line work.
 
            
 
                 Claimant's medical condition before the work injury was 
 
            excellent and she had no ascertainable functional impair
 
            ments or disabilities.  Claimant was able to fully perform 
 
            physical tasks involving heavy and repetitive lifting and 
 
            repetitive use of her hands, arms, and shoulders.  Due to 
 
            her physician imposed physical limitations, claimant's medi
 
            cal condition prevents her from returning to the type of 
 
            work she performed in August 1989 or any heavy and repeti
 
            tive production work.  Claimant has worked for an abstract 
 
            company and would not be severely limited in performing such 
 
            work in the future.  She has worked in the past as a printer 
 
            and her restrictions do limit such work.
 
            
 
                 Claimant has returned to work at Wells to her printing 
 
            job.  This is possibly due to accommodations made by Wells 
 
            in allowing claimant to work at her own pace and other plant 
 
            wide ergonomic efforts discussed above.  Claimant now 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            exceeds efficiency rates set by Well's management.  Although 
 
            she continues to experience headaches and neck, shoulder, 
 
            elbow, and wrist pain she copes with this pain and adjusts 
 
            her work accordingly.  Her current job is suitable to her 
 
            disability and appears stable.  However, claimant emphasizes 
 
            she may not be able to handle other printing jobs at Wells 
 
            as it involves heavier work.  
 
            
 
                 Claimant has only a ninth grade education.  She is in 
 
            her early thirties.  She earns the same wages, adjusted for 
 
            raises, as she earned at the time of the injury.  Although 
 
            claimant may be very limited in potential for vocational 
 
            rehabilitation, such is not necessary due to her return to 
 
            work at Wells.  
 
            
 
                 After considering all of the above, the work injury of 
 
            August 21, 1989 was a cause of only a 10 percent loss of 
 
            earning capacity.  
 
            
 
                 Although claimant returned to work on July 30, 1990, 
 
            this was only part-time.  She did not return to full time 
 
            until October 16, 1990.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The evidence demonstrates that the injury is not con
 
            fined to the hand or arm.  Claimant's physicians indicate 
 
            that the injury has caused permanent physical changes to the 
 
            nerves in claimant's two shoulders.  Consequently, this work 
 
            injury constitutes an injury and permanent impairment to the 
 
            body as a whole because it involves a loss or loss of use of 
 
            more portions of the human body than those specifically 
 
            scheduled in Iowa Code sections 85.34(2)(a-t).  See Farmland 
 
            Foods, Inc. v. Ten Eyck, Court of Appeals Decision filed 
 
            January 29, 1986; Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 248 (Iowa 1980).  Alm v. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949); Dailey v. Pooley Lumber 
 
            Co. 233 Iowa 758, 10 N.W.2d 569 (1943).
 
            
 
                 As the claimant has shown that the work injury was a 
 
            cause of permanent physical impairment or limitation upon 
 
            activity involving the body as a whole, the degree of perma
 
            nent disability must be measured pursuant to Iowa Code sec
 
            tion 85.34(2)(u).  However, unlike scheduled member disabil
 
            ities, 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 Railway Co., 219 Iowa 587, 593, 258 N.W. 899 
 
            (1935).  A physical impairment or restriction on work 
 
            activity may or may not result in such a loss of earning 
 
            capacity.  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; 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  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., Iowa Indus. 
 
            Comm'r 218, 220 (Appeal Decision 1979).  The Iowa Supreme 
 
            Court in Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991) 
 
            only held that continued employment 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 10 percent loss of her earning capacity as a result 
 
            of the work injury.  Such a finding entitles claimant to 50 
 
            weeks of permanent partial disability benefits as a matter 
 
            of law under Iowa Code section 85.34(2)(u) which is 10 per
 
            cent of 500 weeks, the maximum allowable number of weeks for 
 
            an injury to the body as a whole in that subsection. 
 
            
 
                 Iowa Code section 85.34(2) clearly states that perma
 
            nent partial benefits begin at the termination of the heal
 
            ing period.  Healing period in this case terminated on July 
 
            30, 1990 when claimant returned to work.  Permanent disabil
 
            ity benefits will be awarded from this date regardless of 
 
            the payment of temporary partial benefits under 85.33.
 
            
 
                           
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant fifty (50) weeks 
 
            of permanent partial disability benefits at a rate of one 
 
            hundred seventy-three and 73/l00 ($173.73) per week from 
 
            July 30, 1990.
 
            
 
                 2.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.  
 
            
 
                 3.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 4.  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.
 
            
 
                 5.  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 June, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Philip F. Miller
 
            Attorney at Law
 
            Saddlery Building  STE 200
 
            309 Court Avenue
 
            Des Moines, Iowa  50309
 
            
 
            Ms. Dorothy L. Kelley
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
                      
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1803
 
                                                 Filed June 10, 1992
 
                                                 LARRY P. WALSHIRE
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            COLLEEN R. LEMEN,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 931907
 
            WELLS MFG. CORP.,   
 
                                             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.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            DOROTHY M. EHLERT,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 931914
 
            WATERLOO INDUSTRIES,       
 
                                                   A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                     ISSUES
 
 
 
            Defendants state the following issues on appeal:
 
            1.  Did the Deputy Industrial Commissioner properly conclude 
 
            that Claimant's healing period ended on February 1, 1991?
 
            2.  Did the Deputy Industrial Commissioner properly conclude 
 
            that there was a causal connection between Claimant's work 
 
            injury and her present disability?
 
            3.  Did the Deputy Industrial Commissioner properly conclude 
 
            that Claimant is permanently and totally disabled?
 
            
 
                               FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed November 4, 1992 are adopted as final agency 
 
            action.
 

 
            
 
            Page   2
 
            
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed November 4, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            
 
                 The parties do not dispute that claimant sustained a 
 
            work-related injury and last worked on October 10, 1989.  
 
            They do dispute the extent of entitlement to healing period 
 
            benefits.  
 
            *****
 
            
 
                 The ***** [first] issue to be determined is the nature 
 
            and extent of claimant's disability.  
 
            
 
                 The record clearly demonstrates that claimant has 
 
            bilateral carpal tunnel syndrome resulting from one gradual 
 
            injury process constituting a loss of two members from one 
 
            accident. 
 
            
 
                 Iowa Code section 85.34(2)(s) provides, in part, "The 
 
            loss of both arms, or both hands, or both feet, or both 
 
            legs, or both eyes, or any two thereof, caused by a single 
 
            accident, shall equal five hundred weeks and shall be 
 
            compensated as such,..."  Iowa Code section 85.34(2)(s) also 
 
            provides, "...however, if said employee is permanently and 
 
            totally disabled the employee may be entitled to benefits 
 
            under subsection 3."  Relative to this phrase, claimant 
 
            argues that, under the cited section, one must first 
 
            determine whether an individual who simultaneously has lost 
 
            two designated members is permanently and totally disabled 
 
            industrially before one can determine whether the individual 
 
            is entitled to partial disability compensated on the basis 
 
            of 500 weeks or total disability compensated under section 
 
            85.34(3).  Defendants appear to argue that, regardless of 
 
            any possible industrial loss of earning capacity, the 
 
            simultaneous loss of any two designated members equals a 
 
            partial disability to be evaluated functionally under 
 
            section 85.34(2)(s).  They urge that Dr. Milner-Brage's 
 
            conclusion that claimant's impairment rating for the right 
 
            extremity is 26 percent and for the left extremity 25 
 
            percent be controlling in this case.
 
            
 
                 A careful reading of the final disjunctive clause of 
 
            section 85.34(2)(s) requires that a claimant's potential 
 
            industrial loss be evaluated when a totality of 
 
            circumstances demonstrate potential permanent total 
 
            disability from simultaneous bilateral loss of any two 
 
            designated members.  If that industrial loss equals 
 
            permanent total disability, and the employee cannot be 
 
            fairly compensated for the loss otherwise, compensation is 
 
            payable under section 85.34(3).  Jones v. Lamoni Products, 
 
            file number 800310 (Arb. Dec. May 29, 1991).  Accordingly, 
 
            consideration must be given to claimant's potential 
 
            industrial disability.  
 

 
            
 
            Page   3
 
            
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            she is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Additionally, it has been said that, for workers' 
 
            compensation purposes, total disability does not mean a 
 
            state of absolute helplessness, but means disablement of an 
 
            employee to earn wages in the same kind of work, or work of 
 
            a similar nature, that she was trained for, or accustomed to 
 
            perform, or any other kind of work which a person of her 
 
            mentality and attainments could do.  Franzen v. Blakley, 155 
 
            Neb. 621, 51 N.W.2d 833 (1952).  Total and permanent 
 
            disability contemplates the inability of the worker to 
 
            perform any work for which she has the experience or 
 
            capacity to perform.  Shaw v. Gooch Feed Mill Corp., 210 
 
            Neb. 17, 312 N.W.2d 682 (1981); see also Diederich v. 
 
            Tri-City Ry. Co., 219 Iowa 587, 594, 258 N.W. 899 (1935).
 
            
 
                 In this case, claimant is a 45-year-old woman who, for 
 
            the past 16 years, has performed production line spot welder 
 
            work which is classified as semi-skilled work due to 
 
            specific techniques learned on the job.  The skills acquired 
 
            in this work are only transferable to other similar 
 
            assembly-type jobs.  The work ranged from light to medium in 
 
            exertional level with repetitive use of the upper 
 
            extremities. 
 
            
 
                 Claimant completed the tenth grade of school and has no 
 
            other formal or vocational training.  She is precluded from 
 
            performing jobs which require sustained or repetitive 
 
            reaching, handling or gripping where strength, endurance, 
 
            speed, and accuracy are required.  These restrictions 
 
            obviously preclude her from performing her past work 
 
            activity with employer or any other type of production or 
 
            assembly-type work.  Defendant employer has not offered 
 
            claimant a job which would accommodate her restrictions.  
 
            Claimant's education, age and limited prior work experience 
 
            suggest that she has limited capacity for retraining.  Even 
 
            should claimant consider retraining, it appears that no jobs 
 
            are available, at least none have been found by insurance 
 
            carrier's rehabilitation consultant, which would accommodate 
 
            claimant's restrictions.
 
            
 
                 While her functional disability under the combined 
 
            values chart has been disputed by physicians who been 
 
            involved with her case, her disability is a total 
 
            disability.  Diederich, 219 Iowa 587, 593, 258 N.W. 899.
 
            
 
                 It is concluded that claimant is permanently and 
 
            totally disabled and that she can be fairly compensated for 
 
            her permanent total disability only through an award of 
 
            compensation under section 85.34(3).  It is concluded that 
 
            claimant is entitled to permanent total disability benefits 
 
            commencing February 2, 1991, at the rate of $251.82 per 
 
            week, payable during the period of her disability.
 

 
            
 
            Page   4
 
            
 
            
 
                 [When an award of permanent total disability is made, 
 
            healing period benefits are not applicable.  Tesch v. Sieh 
 
            Farm Drainage Co., Appeal Decision, March 1992.]
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
                 That defendants pay to claimant permanent total 
 
            disability benefits for the period of her disability at the 
 
            weekly rate of two hundred fifty-one and 82/100 dollars 
 
            ($251.82) per week from October 11, 1989.
 
            
 
                 That defendants pay claimant accrued amounts in a lump 
 
            sum.
 
            
 
                 That defendants pay claimant interest pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 That defendants receive credit for all benefits 
 
            previously paid.
 
            That defendants shall pay the costs of this matter including 
 
            the transcription of the hearing.  
 
            
 
                 That defendants file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert D. Fulton
 
            Attorney at Law
 
            P.O. Box 2634
 
            Waterloo, Iowa 50704
 
            
 
            Mr. Kevin Rogers
 
            Mr. Jeffrey J. Greenwood
 
            Attorneys at Law
 
            528 W. 4th St.
 
            P.O. Box 1200
 
            Waterloo, Iowa 50704
 
            
 
            
 
 
            
 
 
 
 
 
 
 
                                            1803; 1804
 
                                            Filed November 30, 1993
 
                                            Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            DOROTHY M. EHLERT,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                    File No. 931914
 
            WATERLOO INDUSTRIES,       
 
                                                     A P P E A L
 
                 Employer,   
 
                                                    D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            1803; 1804
 
            Forty-five-year-old woman with severe residuals of bilateral 
 
            carpal tunnel syndrome found entitled to permanent total 
 
            disability benefits under the final disjunctive phrase of 
 
            section 85.34(2)(s) and section 85.34(3).
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DOROTHY M. EHLERT,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 931914
 
            WATERLOO INDUSTRIES,          :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Dorothy 
 
            M. Ehlert, claimant, against Waterloo Industries, employer, 
 
            and Liberty Mutual, insurance carrier, defendants, to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            a result of an injury sustained on September 1, 1989.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on October 23, 1992, in Waterloo, 
 
            Iowa.  The record was considered fully submitted at the 
 
            close of the hearing.  The claimant was present and 
 
            testified.  Also present and testifying were the following 
 
            witnesses:  Monroe Ehlert, Marilyn Hoofnagle, Barbara 
 
            Geiger, Steve Kieszkowski, Mike Shellhorn, and Dick Welsh.  
 
            The documentary evidence identified in the record consists 
 
            of joint exhibits 1 through 21 and claimant's exhibits A 
 
            through D.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            October 23, 1992, the parties have presented the following 
 
            issues for resolution:
 
            
 
                 1.  The date of claimant's alleged work-related injury;
 
            
 
                 2.  Whether there is a causal connection between 
 
            claimant's work injury and permanent disability;
 
            
 
                 3.  The extent of entitlement to weekly compensation 
 
            for temporary total disability or healing period benefits;
 
            
 
                 4.  The extent of entitlement to weekly compensation 
 
            for permanent disability benefits;
 
            
 
                 5.  The type of permanent disability, if the injury is 
 
            found to be a cause of permanent disability; and
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 6.  The commencement date of permanent partial 
 
            disability, in the event such benefits are awarded.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant is a 45-year-old woman who completed the tenth 
 
            grade, but has received neither a GED nor other formal 
 
            training.  Her work history consists primarily of 16 years 
 
            as a spot welder on employer's production line.  
 
            
 
                 Claimant commenced working for employer on August 2, 
 
            1973.  Employer, Waterloo Industries, is a manufacturer of 
 
            metal tool boxes, carts, etc.  As a spot welder, claimant's 
 
            duties included working on a production line fitting and 
 
            spot welding metal drawers with an automatic welding 
 
            machine.  The work was rapid paced and required repetitive 
 
            reaching, handling, fingering, and lifting up to 
 
            approximately 35 pounds.  In performing this job, claimant 
 
            handled six pieces a minute with small pieces, up to two to 
 
            three a minute with larger pieces and handling the drawer at 
 
            least four times with each piece.  She worked an eight-hour 
 
            or more day.  
 
            
 
                 Claimant first experienced numbness, tingling and 
 
            paresthesia in both hands in 1985.  Claimant's bilateral 
 
            hand pain progressed until she left work to undergo surgical 
 
            intervention on October 11, 1989.  Pursuant to McKeever 
 
            Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985), such 
 
            is found to be the date of her cumulative trauma.  Claimant 
 
            underwent right carpal tunnel release on October 11, 1989, 
 
            and left carpal tunnel release on December 7, 1989.
 
            
 
                 According to Arnold E. Delbridge, M.D., American Board 
 
            Certified orthopedist and hand surgeon who testified by 
 
            deposition on September 8, 1992:
 
            
 
                    A.  In summary, she had marked atrophy of the 
 
                 thenar eminence on both sides; in other words, 
 
                 both hands had marked thenar eminence atrophy.  
 
                 She had severe sensory impairment of the median 
 
                 nerve distribution, meaning the thumb, index, long 
 
                 and half of the ring finger on both hands.  She 
 
                 had a pinch on the right of five pounds and on the 
 
                 left three pounds.  And on grip testing she was 
 
                 markedly deficient.  She had a grip of like eight 
 
                 pounds on the right and five pounds on the left, 
 
                 ten pounds on the right and eight pounds on the 
 
                 left, on various grip meter notches.
 
            
 
                    So, in summary, this was a lady who had severe 
 
                 compromise of her hand based on her carpal tunnel, 
 
                 which really made her sensation almost 
 
                 nonexistent.  And her motor function completely 
 
                 deficient in her hand.  And she had very weak 
 
                 grip, reference the forearm as well.  And in 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 addition she had some minor changes of Heberden's 
 
                 nodes on her x-ray.
 
            
 
            (joint exhibit 2, page 4)
 
            
 
                 At the hearing, claimant demonstrated a loss of 
 
            strength, grip and sensation in both hands.  She was unable 
 
            to pick up coins, clips and other small objects.  She could 
 
            not put a nail in a preexisting hole or pound a nail into a 
 
            board.  She could not manipulate buttons or zippers.  She 
 
            had difficulty writing her own name.  She testified, and her 
 
            husband corroborated, that she cannot dust, vacuum, garden, 
 
            do yard work, cook, or drive.  
 
            
 
                 Claimant is currently receiving social security 
 
            disability benefits.  She has made a minimal attempt to find 
 
            work, indicating that she has never been released to do so.  
 
            The insurer involved an outside vocational rehabilitation 
 
            consultant for claimant, but his efforts have been minimal 
 
            in providing job training or pursuing alternate employment.  
 
            Roger F. Marquardt, a vocational specialist, opined that 
 
            claimant is totally vocationally disabled (ex. 13). 
 
            
 
                 Jitu D. Kothari, M.D., board certified orthopedic 
 
            surgeon, performed claimant's bilateral carpal tunnel 
 
            release.  Dr. Kothari referred claimant to Allen Memorial 
 
            Hospital for occupational therapy under the direction of Mr. 
 
            Steven Michael Kieszkowski.  The purpose of therapy was to 
 
            assist claimant in regaining hand strength and mobility.  
 
            Treatment was provided three times per week until June 1, 
 
            1990, when it was discontinued due to lack of progress (ex. 
 
            8).
 
            
 
                 On July 6, 1990, Dr. Kothari reported that claimant 
 
            continues to have objective weakness in both hands, 
 
            including pinch strength and grip strength.  She also 
 
            continues to demonstrate atrophy of the thenar groups of 
 
            muscles in both hands and continues to have numbness in the 
 
            fingertips.  At this time, Dr. Kothari stated that claimant 
 
            has a 15 percent permanent impairment and loss of physical 
 
            function of the right and left hands due to residual median 
 
            nerve paresthesia from severe carpal tunnel syndrome (ex. 
 
            7-1-2).
 
            
 
                 Claimant was then referred by her attorney to Dr. 
 
            Delbridge for evaluation on January 23, 1991.  After 
 
            reviewing the claimant's medical history and noting her 
 
            complaints, Dr. Delbridge conducted a physical examination.  
 
            On testing, Dr. Delbridge noted that claimant's grip was 
 
            markedly compromised and she had persistent numbness in her 
 
            fingers.  He assessed a 30 percent impairment of each upper 
 
            extremity (ex. 6-3-4).  Dr. Delbridge saw claimant for 
 
            follow-up examination on August 13, 1991.  He noted no 
 
            improvement in her condition since January (ex. 6-5).
 
            
 
                 The record indicates that Dr. Kothari manages 
 
            claimant's postsurgical care.  On February 1, 1991, Dr. 
 
            Kothari stated that claimant had reached maximum medical 
 
            improvement (ex. 7-19).  Progress notes dated December 4, 
 
            1991, indicate that claimant continues to have numbness in 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the fingertips of both hands and intolerance to cold as well 
 
            as purplish discoloration of the skin and burning pain in 
 
            both hands.  Dr. Kothari felt that her symptoms were 
 
            consistent with Reynaud's phenomenon.  He recommended 
 
            further evaluation by John Milner-Brage, M.D. (ex 7-20).  
 
            
 
                 Claimant was seen by Dr. Milner-Brage on February 18, 
 
            1992.  Dr. Milner-Brage is a specialist in physical medicine 
 
            and rehabilitation and electrodiagnostic medicine (ex. 3, p. 
 
            3).  Dr. Milner-Brage conducted a physical examination and 
 
            performed nerve conduction studies.  His electrodiagnostic 
 
            impression was severe end-stage bilateral median neuropathy 
 
            at the wrist, unchanged since the study of September 29, 
 
            1989.  He noted no significant improvement since the carpal 
 
            tunnel release.  Dr. Milner-Brage felt that claimant's 
 
            decreased grip strength was not secondary to the median 
 
            nerve injury, but due to a combination of mild 
 
            osteoarthritis at the wrist and thumb as well as Reynaud's 
 
            disease.  He described Reynaud's disease as a benign 
 
            symmetric disorder that results in cooling of the hands on 
 
            exposure to cold weather or secondary to anxiety (ex. 
 
            10-1-4).
 
            
 
                 On March 2, 1992, Dr. Delbridge reviewed the Guides to 
 
            the Evaluation of Permanent Impairment, 3d ed (revised), and 
 
            changed his initial 30 percent permanent impairment rating 
 
            to 60 percent of the right upper extremity and 50 percent of 
 
            the left upper extremity.  He noted that in the revised 
 
            edition there is a modification regarding impairment of 
 
            upper extremity due to entrapment neuropathy (ex. 6-1-2).
 
            
 
                 Dr. Milner-Brage testified in a deposition on August 3, 
 
            1992.  It was his opinion that claimant has severe median 
 
            nerve entrapment bilaterally, some osteoarthritis and 
 
            primary Reynaud's phenomenon (ex. 3, pp. 53-54).  It was his 
 
            opinion that claimant has an upper extremity impairment of 
 
            26 percent on the right and 25 percent on the left.  
 
            
 
                 Dr. Delbridge testified in a deposition on September 8, 
 
            1992.  It was his opinion that claimant has secondary 
 
            Reynaud's phenomenon.  He based his opinion on her severe 
 
            median nerve compromise and the vibration she encountered in 
 
            performing her work activity with employer (ex. 2, pp. 
 
            14-15).  
 
            
 
                 Claimant was referred by her attorney to Steve 
 
            Kieszkowski at Allen Memorial Hospital for an upper 
 
            extremity functional capacity evaluation on September 16, 
 
            1992.  The purpose of the evaluation was to determine 
 
            claimant's functional capacities and limitations.  Mr. 
 
            Kieszkowski concluded that, "Today's tests suggest that the 
 
            worker is not competitively employable at jobs requiring 
 
            sustained or repetitive reaching, handling or gripping where 
 
            strength, endurance, speed and accuracy are required."  (ex. 
 
            8-1).  
 
            
 
                 Mr. Daniel J. Frommelt, rehabilitation consultant, 
 
            hired by insurance carrier on November 27, 1991, reported on 
 
            September 11, 1992, that he planned to continue job 
 
            development efforts, evaluate reasonable training options, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            and develop a plan for claimant's completion of her GED.  At 
 
            the hearing, he admitted that his efforts have not resulted 
 
            in any definitive plan or program to return claimant to the 
 
            competitive job market (ex. 14).  
 
            
 
                 Dr. Kothari testified in a deposition on October 6, 
 
            1992.  Dr. Kothari testified that when he originally gave 
 
            claimant a bilateral 15 percent permanent impairment rating, 
 
            he used the second edition of the AMA Guides.  After being 
 
            shown the revised third edition to the Guides as well as Dr. 
 
            Delbridge's report and impairment rating, Dr. Kothari 
 
            testified that he agreed with the 60 percent permanent 
 
            impairment on the right and 50 percent on the left (ex. 5, 
 
            pp. 6-7).  Dr. Kothari stated, that, in his opinion, 
 
            claimant's condition is sympathetic dystrophy or Sudeck's 
 
            Atrophy or secondary Reynaud's phenomenon (ex. 5, p. 29).
 
            
 
                 Dr. Milner-Brage testified in another deposition taken 
 
            on October 8, 1992.  He stated that he disagrees with Dr. 
 
            Kothari's assessment that claimant's condition is a reflex 
 
            sympathetic dystrophy or secondary Reynaud's phenomenon (ex. 
 
            4, pp. 19-20).  He reiterated his prior testimony that, in 
 
            his opinion, the claimant suffers from primary Reynaud's 
 
            disease that was not caused by her work at Waterloo 
 
            Industries (ex. 4, p. 32).  He stated that Reynaud's disease 
 
            (cooling in the hand) is a temporary phenomenon which occurs 
 
            when hands are exposed to cold climatic conditions.  He felt 
 
            that claimant is restricted from performing work activity 
 
            which requires fine grasping or manipulation.  Dr. 
 
            Milner-Brage stated that he did not do a functional capacity 
 
            evaluation by having claimant use a hammer, screwdriver or 
 
            attempting power grip because, in his opinion, they are 
 
            unreliable in this situation and not permitted under the AMA 
 
            guidelines (ex. 4).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The parties do not dispute that claimant sustained a 
 
            work-related injury and last worked on October 10, 1989.  
 
            They do dispute the extent of entitlement to healing period 
 
            benefits.  
 
            
 
                 Healing period benefits may be characterized as that 
 
            period during which there is a reasonable expectation of 
 
            improvement of a disabling condition and ends when maximum 
 
            medical improvement is reached.  Armstrong Tire & Rubber Co. 
 
            v. Kubli, Iowa App., 312 N.W.2d 60, 65 (1981).  In 
 
            discussing the concept of healing period as contemplated by 
 
            Iowa Code section 85.34(1) (1991), the Kubli court observed 
 
            that recuperation refers to that condition in which healing 
 
            is complete and the extent of the disability can be 
 
            determined.  Kubli, 312 N.W.2d at 65.  The healing period 
 
            generally terminates at the time the attending physician 
 
            determines that the employee has recovered as far as 
 
            possible from the effects of the injury.  Kubli, 312 N.W.2d 
 
            at 65.  When a permanent rating is given, it indicates that 
 
            the physician does not expect the claimant to improve and 
 
            this conclusion meets the criteria of Iowa Code section 
 
            85.34(1) and Thomas v. William Knudson & Sons, Inc., 349 
 
            N.W.2d 124, 126 (Ia. Ct. App. 1984).  The finding of a 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            termination of healing period necessarily precludes the 
 
            discussion of the running award.  Hoskins v. Quaker Oats, 
 
            Vol 2. No. 1 Iowa Industrial Commissioner Decisions, 181, 
 
            185 (App. 1985).  Since the healing period contemplates an 
 
            inability to work, a healing period cannot start until 
 
            claimant leaves work.  This is true even if claimant is 
 
            experiencing symptoms on the job but does not leave work for 
 
            a variety of reasons.  Boyd v. Western Home, file number 
 
            890207 (Iowa Industrial Commissioner App. June 26, 1991).
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  
 
            
 
                 The greater weight of the evidence in this case 
 
            supports the finding that claimant's healing period began on 
 
            October 11, 1989, when she underwent right carpal tunnel 
 
            release by Dr. Kothari (ex. 7-1) and ended on February 1, 
 
            1991, when Dr. Kothari reported that she had reached maximum 
 
            medical improvement (ex. 7-19).
 
            
 
                 The next issue to be determined is the nature and 
 
            extent of claimant's disability.  
 
            
 
                 The record clearly demonstrates that claimant has 
 
            bilateral carpal tunnel syndrome resulting from one gradual 
 
            injury process constituting a loss of two members from one 
 
            accident. 
 
            
 
                 Iowa Code section 85.34(2)(s) provides, in part, "The 
 
            loss of both arms, or both hands, or both feet, or both 
 
            legs, or both eyes, or any two thereof, caused by a single 
 
            accident, shall equal five hundred weeks and shall be 
 
            compensated as such,..."  Iowa Code section 85.34(2)(s) also 
 
            provides, "...however, if said employee is permanently and 
 
            totally disabled the employee may be entitled to benefits 
 
            under subsection 3."  Relative to this phrase, claimant 
 
            argues that, under the cited section, one must first 
 
            determine whether an individual who simultaneously has lost 
 
            two designated members is permanently and totally disabled 
 
            industrially before one can determine whether the individual 
 
            is entitled to partial disability compensated on the basis 
 
            of 500 weeks or total disability compensated under section 
 
            85.34(3).  Defendants appear to argue that, regardless of 
 
            any possible industrial loss of earning capacity, the 
 
            simultaneous loss of any two designated members equals a 
 
            partial disability to be evaluated functionally under 
 
            section 85.34(2)(s).  They urge that Dr. Milner-Brage's 
 
            conclusion that claimant's impairment rating for the right 
 
            extremity is 26 percent and for the left extremity 25 
 
            percent be controlling in this case.
 
            
 
                 A careful reading of the final disjunctive clause of 
 
            section 85.34(2)(s) requires that a claimant's potential 
 
            industrial loss be evaluated when a totality of 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            circumstances demonstrate potential permanent total 
 
            disability from simultaneous bilateral loss of any two 
 
            designated members.  If that industrial loss equals 
 
            permanent total disability, and the employee cannot be 
 
            fairly compensated for the loss otherwise, compensation is 
 
            payable under section 85.34(3).  Jones V. Lamoni Products, 
 
            file number 800310 (Arb. Dec. May 29, 1991).  Accordingly, 
 
            consideration must be given to claimant's potential 
 
            industrial disability.  
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            she is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 1121, 125 N.W.2d 251, 257 (1963).
 
            
 
                 Additionally, it has been said that, for workers' 
 
            compensation purposes, total disability does not mean a 
 
            state of absolute helplessness, but means disablement of an 
 
            employee to earn wages in the same kind of work, or work of 
 
            a similar nature, that she was trained for, or accustomed to 
 
            perform, or any other kind of work which a person of her 
 
            mentality and attainments could do.  Franzen v. Blakley, 155 
 
            Neb. 621, 51 N.W.2d 833 (1952).  Total and permanent 
 
            disability contemplates the inability of the worker to 
 
            perform any work for which she has the experience or 
 
            capacity to perform.  Shaw v. Gooch Feed Mill Corp., 210 
 
            Neb. 17, 312 N.W.2d 682 (1981); see also Diederich v. 
 
            Tri-City Ry. Co., 219 Iowa 587, 594, 258 N.W. 899 (1935).
 
            
 
                 In this case, claimant is a 45-year-old woman who, for 
 
            the past 16 years, has performed production line spot welder 
 
            work which is classified as semi-skilled work due to 
 
            specific techniques learned on the job.  The skills acquired 
 
            in this work are only transferable to other similar 
 
            assembly-type jobs.  The work ranged from light to medium in 
 
            exertional level with repetitive use of the upper 
 
            extremities. 
 
            
 
                 Claimant completed the tenth grade of school and has no 
 
            other formal or vocational training.  She is precluded from 
 
            performing jobs which require sustained or repetitive 
 
            reaching, handling or gripping where strength, endurance, 
 
            speed, and accuracy are required.  These restrictions 
 
            obviously preclude her from performing her past work 
 
            activity with employer or any other type of production or 
 
            assembly-type work.  Defendant employer has not offered 
 
            claimant a job which would accommodate her restrictions.  
 
            Claimant's education, age and limited prior work experience 
 
            suggest that she has limited capacity for retraining.  Even 
 
            should claimant consider retraining, it appears that no jobs 
 
            are available, at least none have been found by insurance 
 
            carrier's rehabilitation consultant, which would accommodate 
 
            claimant's restrictions.
 
            
 
                 While her functional disability under the combined 
 
            values chart has been disputed by physicians who been 
 
            involved with her case, her disability is a total 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            disability.  Diederich, 219 Iowa 587, 593, 258 N.W. 899.
 
            
 
                 It is concluded that claimant is permanently and 
 
            totally disabled and that she can be fairly compensated for 
 
            her permanent total disability only through an award of 
 
            compensation under section 85.34(3).  It is concluded that 
 
            claimant is entitled to permanent total disability benefits 
 
            commencing February 2, 1991, at the rate of $251.82 per 
 
            week, payable during the period of her disability.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 The defendants pay to claimant healing period benefits 
 
            from October 11, 1989 through February 1, 1991, at the 
 
            weekly rate of two hundred fifty-one and 82/100 dollars 
 
            ($251.82) per week.
 
            
 
                 That defendants pay to claimant permanent total 
 
            disability benefits for the period of her disability at the 
 
            weekly rate of two hundred fifty-one and 82/100 dollars 
 
            ($251.82) per week.
 
            
 
                 That defendants pay claimant accrued amounts in a lump 
 
            sum.
 
            
 
                 That defendants pay claimant interest pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 That defendants receive credit for all benefits 
 
            previously paid.
 
            
 
                 That defendants pay costs of this proceeding pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert D. Fulton
 
            Attorney at Law
 
            First National Bldg, 6th Floor
 
            E. 4th & Sycamore
 
            PO Box 2634
 
            Waterloo, IA  50704-2634
 
            
 
            Mr. Kevin Rogers
 
            Mr. Jeffrey J. Greenwood
 
            Attorneys at Law
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            528 W. 4th St.
 
            PO Box 1200
 
            Waterloo, Iowa  50704
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                              1803 1804
 
                                              Filed November 4, 1992
 
                                              Jean M. Ingrassia
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DOROTHY M. EHLERT,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 931914
 
            WATERLOO INDUSTRIES,     
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1803 1804
 
            Forty-five-year-old woman with severe residuals of bilateral 
 
            carpal tunnel syndrome found entitled to permanent total 
 
            disability benefits under the final disjunctive phrase of 
 
            section 85.34(2)(s) and section 85.34(3).