Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CARL C. PETERSON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File Nos. 906408
 
                                          :                   933308
 
            JOHN MORRELL & CO.,           :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE           :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This decision concerns two proceedings in arbitration 
 
            brought by Carl C. Peterson against his employer, John 
 
            Morrell & Company, and its insurance carrier, National Union 
 
            Fire Insurance Company.  File number 906408 deals with an 
 
            injury of December 12, 1988.  File number 933308 deals with 
 
            an injury of January 3, 1989.  Both injuries are admitted by 
 
            the employer.  The issues for determination are the extent 
 
            of permanent partial disability compensation and the 
 
            commencement date for payment of the permanent partial 
 
            disability compensation.  Claimant has, prior to hearing, 
 
            been compensated for a five percent permanent partial 
 
            disability of each hand by payment of 19 weeks of permanent 
 
            partial disability compensation.
 
            
 
                 The case was heard at Sioux City, Iowa on May 13, 1991.  
 
            The evidence in the case consists of testimony from Carl C. 
 
            Peterson, joint exhibit A, claimant's exhibits 1 through 58 
 
            and defendants' exhibits 101 through 104.  Official notice 
 
            was taken of the arbitration decision entered September 20, 
 
            1990 in file number 848648 and of the agreement for 
 
            settlement in file number 848647 which awarded claimant nine 
 
            and one-half weeks of compensation at the rate of $229.38 
 
            per week for five percent permanent partial disability of 
 
            the left hand.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witness, the 
 
            following findings of fact are made.
 
            
 
                 Carl C. Peterson is a 48-year-old man who has been 
 
            employed by John Morrell & Company and its predecessor, Iowa 
 
            Meats, for approximately ten years.  He had no problem with 
 
            his hands or arms before commencing that employment.  His 
 
            primary job has been marking snouts on the head table, an 
 
            activity which required strenuous use of his hands.
 
            
 
                 Carl began having trouble with his hands in 1985.  He 
 
            saw the company physicians and was seen by hand specialist 
 
            Bruce Butler, M.D.  Dr. Butler, in a report dated August 10, 
 
            1987, rated claimant as having a five percent permanent 
 
            partial impairment of his right upper extremity due to 
 
            carpal tunnel syndrome.  Dr. Butler went on to state that, 
 
            following surgical release, a ten percent permanent partial 
 
            impairment rating is to be expected (exhibit 27, page 2).
 
            
 
                 Claimant continued to work at the John Morrell & 
 
            Company plant until December 12, 1988 when he went to the 
 
            plant medical department with complaints regarding his 
 
            hands.  Claimant then went off work.  After New Year's Day, 
 
            he attempted to return to work unsuccessfully.  His 
 
            treatment was then conducted by Quentin J. Durward, M.D.  
 
            Right carpal tunnel release surgery was performed on March 
 
            8, 1989 and left carpal tunnel release surgery was performed 
 
            on March 22, 1989 (exhibit 31).
 
            
 
                 Dr. Durward rated claimant as having a 20 percent 
 
            permanent partial impairment of each arm from the carpal 
 
            tunnel syndrome and surgery which was due to claimant's work 
 
            activities (exhibits 33 and 35).  Claimant has been provided 
 
            activity restrictions against repeated gripping with his 
 
            hands and work involving use of a knife or hook.  He also 
 
            had been given restrictions concerning the weights he should 
 
            handle.
 
            
 
                 Carl returned to work in October 1989 on a 
 
            four-hour-per-day basis and continued in that limited work 
 
            activity until apparently injuring his back in early 1990 
 
            (exhibits 34, 39, 40, 42, 43, 44 and 51-54).
 
            
 
                 The condition of claimant's hands and arms has also 
 
            been evaluated by three other physicians.  In a report dated 
 
            October 16, 1989, Leonel H. Herrera, M.D., reported that 
 
            claimant's hands are fully functional (exhibits 41 and 101).  
 
            In a report dated November 8, 1989, Pat Luse, D.C., reported 
 
            that claimant had a 16 percent impairment of his left upper 
 
            extremity and a 21 percent impairment of his right upper 
 
            extremity which was equivalent to a 20 percent permanent 
 
            partial impairment of the whole man (exhibit 48).  
 
            Orthopaedic surgeon John J. Dougherty, M.D., in a report 
 
            dated February 20, 1990, rated claimant as having a three 
 
            percent permanent partial impairment of each upper extremity 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            (exhibit 58).
 
            
 
                 Claimant has continued to complain of pain and other 
 
            symptoms in his hands and arms.  Post-surgical EMG tests 
 
            conducted in February 1990 were interpreted as being normal 
 
            (exhibit 46).  Claimant's involvement in this litigation is 
 
            reported at several places in the medical records (exhibits 
 
            38, 40 and 41; exhibit 55, page 3).  It appears as though 
 
            the claimant's involvement in this litigation has had some 
 
            impact upon his subjective complaints.  Nevertheless, 
 
            claimant does have well-documented problems with his hands.
 
            
 
                 The impairment ratings in this case are unusually 
 
            divergent, ranging from a high of twenty percent of each 
 
            extremity by Dr. Durward to a low of three percent of each 
 
            upper extremity by Dr. Dougherty.  The October 16, 1989 
 
            report from Dr. Herrera can even be interpreted as finding 
 
            no impairment.  A twenty percent rating is quite high in 
 
            relation to the ratings commonly seen in other cases dealing 
 
            with carpal tunnel surgery.  On the other hand, a three 
 
            percent or zero impairment rating is quite low where there 
 
            are residual symptoms.  It is found that the expected 
 
            ratings expressed by Dr. Butler in his August 10, 1987 
 
            report are in line with the ratings commonly seen in cases 
 
            of this type where the complaints are comparable to those 
 
            expressed by the claimant in this case.
 
            
 
                 It is noted that the physicians have generally 
 
            expressed their ratings in terms of the upper extremity.  
 
            The term "upper extremity" is normally considered to be 
 
            synonymous with the term "arm," rather than "hand."  It is 
 
            expected that the physicians have made the appropriate 
 
            conversion of the impairment from the hand to the arm when 
 
            expressing their impairment ratings.
 
            
 
                 The employer and its insurance carrier have not filed 
 
            all the appropriate claim activity reports in these cases.  
 
            The evidence submitted does not show the precise date that 
 
            the claimant last worked.  It is indicated, however, that he 
 
            was expected to recover and obtain the ability to work eight 
 
            hours per day starting February 2, 1990 (exhibits 43 and 
 
            44).  Reference to other agency records shows Carl Peterson 
 
            to have been paid benefits in file number 936503 based upon 
 
            an alleged injury to his back of January 19, 1990 with 
 
            disability from that injury commencing March 28, 1990.  It 
 
            is found that the release to resume working eight hours per 
 
            day as made by Dr. Herrera on February 2, 1990 is correct 
 
            with regard to marking the end of claimant's limited work 
 
            hours based upon the condition of his hands, despite the 
 
            subsequent medical restrictions which again imposed a 
 
            four-hour-per-day limit on his work activities and also 
 
            despite the fact that claimant did not resume full-time 
 
            work.
 
            
 
                                conclusions of law
 
            
 
                 It was stipulated in the prehearing report that 
 
            claimant's disability should be compensated as disability of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            the upper extremities.  The Code does not use the term 
 
            "upper extremity," but rather uses the terms "hands" or 
 
            "arms."  Since claimant condition is bilateral carpal tunnel 
 
            syndrome, it constitutes one injury rather than two as 
 
            determined in the decision entered in file number 848648.  
 
            The compensation should be computed under the provisions of 
 
            Code section 85.34(2)(s).  Simbro v. Delong's Sportswear, 
 
            332 N.W.2d 886 (Iowa 1983).  The claimant's disability 
 
            commenced December 12, 1988.  It was at that time that he 
 
            began missing substantial periods of work for the condition.  
 
            The brief attempt to resume employment which commenced in 
 
            late December 1988 or early January 1989 does not 
 
            demonstrate a recovery from the prior condition or a new 
 
            injury.  It is therefore concluded that the correct date of 
 
            injury to be used in this case is December 12, 1988 and that 
 
            the benefits awarded should be awarded in file number 
 
            906408.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
            (Iowa 1985).
 
            
 
                 According to Code section 85.34, compensation for 
 
            permanent partial disability is payable commencing at the 
 
            end of the healing period.  The healing period ends at the 
 
            earlier of the three specified events, namely an actual 
 
            return to work, recuperation to the point of being medically 
 
            capable of returning to work substantially similar to that 
 
            in which the employee was engaged at the time of injury or 
 
            achievement of maximum medical improvement from the injury.  
 
            In this case, Carl Peterson resumed work on a limited basis.  
 
            He was therefore entitled to temporary partial disability 
 
            benefits in accordance with Code section 85.33(2) through 
 
            (4).  He continued to recuperate until February 2, 1990 as 
 
            indicated by Dr. Herrera.  The record shows no further 
 
            improvement of his hands after February 2, 1990.  At the end 
 
            of the period of recuperation, he was then entitled to 
 
            receive permanent partial disability compensation.  It is 
 
            noted that temporary partial disability benefits are a 
 
            substitute for healing period benefits.  Temporary partial 
 
            disability benefits are paid while the individual is still 
 
            recuperating and has not yet achieved the level of recovery 
 
            which is needed in order for healing period to end.  If Carl 
 
            Peterson resumed work on an eight-hour-per-day basis, he 
 
            would no longer have been entitled to temporary partial 
 
            disability benefits since his earnings should have been 
 
            equivalent to those he was earning at the time of injury and 
 
            the healing period would have been ended by his resumption 
 
            of full-time employment.  It would also have been ended by 
 
            maximum medical improvement, even though he never resumed 
 
            full-time employment.
 
            
 
                 It is noted that an injured employee is not entitled to 
 
            receive compensation for permanent partial disability based 
 
            upon an injury at the same time as the individual is 
 
            receiving healing period, temporary total or temporary 
 
            partial disability compensation for that same injury.  It is 
 
            therefore concluded that Carl Peterson's entitlement to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            temporary partial disability compensation ended February 2, 
 
            1990 and that his entitlement to recover permanent partial 
 
            disability compensation commenced February 3, 1990.
 
            
 
                 It has been previously found that claimant has a ten 
 
            percent permanent partial impairment of each upper 
 
            extremity.  By applying a ten percent impairment of each 
 
            upper extremity under the AMA guidelines pursuant to rule 
 
            343 IAC 2.4 and using the appropriate conversion, the result 
 
            is a 12 percent impairment of the whole person.  Under 
 
            section 85.34(2)(s), this entitles claimant to receive 60 
 
            weeks of permanent partial disability compensation.  It is 
 
            noted that he had a five percent preexisting disability of 
 
            his right hand as established by the prior agreement for 
 
            settlement.  Since that amount preexisted, he is not 
 
            entitled to recover again for that same disability since the 
 
            employer has previously compensated him for that disability.  
 
            This is not a case where the preexisting disability had not 
 
            been properly compensated by the employer.  Apportionment is 
 
            therefore proper.  Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 
 
            App. 1991); Tussing v. George A. Hormel & Co., 461 N.W.2d 
 
            450 (Iowa 1990); Varied Enterprises, Inc. v. Sumner, 353 
 
            N.W.2d 407 (Iowa 1984); DeShaw v. Energy Mfg. Co., 192 
 
            N.W.2d 777 (Iowa 1971).  When the compensable value of the 
 
            preexisting disability is deducted, namely 9 1/2 weeks of 
 
            compensation, the claimant is entitled to recovery 50.5 
 
            weeks of compensation in this proceeding.  Prior to hearing, 
 
            the employer had paid 9.5 weeks at the stipulated rate of 
 
            $262.16.  The remaining liability is therefore 41 weeks.
 
            
 
                 The record does not contain information which shows 
 
            whether or not temporary partial disability compensation was 
 
            paid subsequent to February 3, 1990.  If it was, the 
 
            employer is entitled to credit for the overpaid temporary 
 
            partial disability against the permanent partial disability 
 
            award made in this case.  Wilson Food Corp. v. Cherry, 315 
 
            N.W.2d 576 (Iowa 1982); Iowa Code section 85.34(4).
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that, in file number 906408, 
 
            defendants pay Carl C. Peterson fifty point five (50.5) 
 
            weeks of compensation for permanent partial disability 
 
            payable commencing February 3, 1990 at the stipulated rate 
 
            of two hundred sixty-two and 16/100 dollars ($262.16) per 
 
            week.  Defendants are entitled to credit for the nine and 
 
            one-half (9 1/2) weeks of compensation previously paid and 
 
            shall pay the remaining forty-one (41) weeks, all of which 
 
            are accrued, in a lump sum together with interest pursuant 
 
            to Iowa Code section 85.30 computed from the date each 
 
            weekly payment came due until the date it is actually paid.
 
            
 
                 IT IS FURTHER ORDERED that the costs in file number 
 
            906408 are assessed against defendants pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that claimant take nothing in 
 
            file number 933308 and that proceeding is dismissed at 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            claimant's cost.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports in file number 906408 as requested by this 
 
            agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Bryan J. Arneson
 
            Attorney at Law
 
            340 Insurance Centre
 
            507 7th Street
 
            Sioux City, Iowa  51101
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1801.1; 1803; 1806
 
                           Filed May 21, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            CARL C. PETERSON,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File Nos. 906408
 
                      :                   933308
 
            JOHN MORRELL & CO., :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            NATIONAL UNION FIRE :
 
            INSURANCE COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1801.1
 
            It was held that temporary partial disability is a 
 
            substitute for healing period and that the same events which 
 
            end healing period also terminate temporary partial 
 
            disability entitlement.  Compensation for permanent partial 
 
            disability held payable commencing at the end of the 
 
            temporary partial disability entitlement where the temporary 
 
            partial disability entitlement was ended by a full-time 
 
            return to work despite the fact that further recuperation 
 
            might have occurred subsequently.
 
            
 
            1803; 1806
 
            Claimant found to have 12 percent permanent partial 
 
            disability which under section 85.34(2)(s) entitled him to 
 
            60 weeks of compensation based on bilateral carpal tunnel 
 
            syndrome and surgery.  The claimant had previously been paid 
 
            9 1/2 weeks of permanent partial disability under an 
 
            agreement for settlement affecting one of his hands.  Such 
 
            was held a sufficient basis for apportionment.  Claimant 
 
            awarded 50.5 additional weeks after deducting the 9.5 weeks 
 
            previously paid in another case from the 60-week total 
 
            disability entitlement which currently existed.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RENEE UNDERWOOD,              :
 
                                          :
 
                 Claimant,                :      File No. 933323
 
                                          :
 
            vs.                           :
 
                                          :    A R B I T R A T I O N
 
            AMOCO OIL COMPANY,            :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,             :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Renee 
 
            Underwood, claimant, against Amoco Oil Company, employer 
 
            (hereinafter referred to as Amoco), who is a self-insured 
 
            defendant, for workers' compensation benefits as a result of 
 
            an alleged injury on June 22, 1989.  On July 17, 1991, a 
 
            hearing was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing from the parties are set forth in the 
 
            hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Amoco at the time of the alleged injury.
 
            
 
                 2.  If the injury is found to have caused a permanent 
 
            partial disability, the type of disability is a scheduled 
 
            member disability consisting of a 4 percent permanent loss 
 
            of use of the arm entitling claimant to 10 weeks of perma
 
            nent partial disability.
 
            
 
                 3.  If permanent disability benefits are awarded, they 
 
            shall begin as of February 13, 1991.
 
            
 
                 4.  Claimant's gross weekly rate of weekly compensation 
 
            in the event of an award from this proceeding is $254.40. 
 
            Claimant is entitled to marital status and two exemptions in 
 
            computing the compensation rate.  As indicated to the 
 
            parties at hearing, the commissioner has directed that 
 
            deputies may not honor a stipulated rate of compensation if 
 
            the rate is inconsistent with the commissioner's rate 
 
            booklet.  Given the stipulations of the parties as to gross 
 
            income, marital status, and the number of exemptions, the 
 
            proper rate for an injury in June 1989, according to the 
 

 
            
 
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            commissioner's rate booklet, is $167.30, not $167.90, as 
 
            stipulated.  Therefore, the proper rate will be used for the 
 
            purposes of this decision.
 
            
 
                 5.  With reference to the medical bills submitted to 
 
            claimant at hearing, it was agreed that the providers would 
 
            testify that they were fair and reasonable.  It was further 
 
            agreed that these bills were causally connected to the 
 
            medical condition upon which the claim is based but the 
 
            issue of the causal connection of the condition to a work 
 
            injury remained an issue to be decided.
 
            
 
                                      issue
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                 I.  Whether claimant received an injury arising out of 
 
            and in the course of employment;
 
            
 
                 II.  The extent of claimant's entitlement to disability 
 
            benefits;
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits; and
 
            
 
                 IV.  The extent of claimant's entitlement to additional 
 
            benefits for any unreasonable denial of the claim.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendant places claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant, a 29-year-old high school graduate, worked 
 
            for Amoco at the credit card center in Des Moines, Iowa, 
 
            from July 1988 until December 28, 1989, at which time she 
 
            left her employment upon the advice of physicians.  Her 
 
            duties consisted primarily of using her right hand to enter 
 
            data into computers using a keyboard.  Her normal work week 
 
            consisted of eight hours per day, five days a week.
 
            
 
                 Prior to her employment at Amoco, claimant worked for 
 
            another company in which she also used her right hand to 
 
            operate a  10 key adding machine.  She previously worked in 
 
            various summer clerical jobs before as a receptionist, which 
 
            included filing and copying duties.  She also has previously 
 
            worked in a day care center as a teacher of three year olds.
 
            
 
                 At the time she was hired by Amoco, claimant had no 
 
            functional impairments or ascertainable disabilities.  This 
 
            finding is based upon claimant's uncontroverted testimony at 
 
            hearing and the fact that she passed a pre-employment 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            physical before being hired at Amoco.
 
            
 
                 On or about June 22, 1989, claimant suffered an injury 
 
            to her right hand which arose out of and in the course of 
 
            her employment at Amoco.  This injury initially consisted 
 
            only of the development of a ganglion cyst of the right 
 
            wrist.  However, the removal of this cyst and the 
 
            development of scar tissue subsequent to removal led to a 
 
            condition called carpal tunnel syndrome.
 
            
 
                 Claimant's uncontroverted testimony established that in 
 
            January 1989, she began to experience a small lump on the 
 
            right wrist.  Gradually, this lump grew and began to 
 
            interfere with claimant's work.  The lump was located on the 
 
            inside of her right wrist just below the base of her thumb.  
 
            This lump caused pain when claimant would rest the wrist on 
 
            a table to perform her keyboard duties.  The problem grew 
 
            worse over time and she eventually sought treatment from her 
 
            family physician.
 
            
 
                 Claimant testified that she reported the development of 
 
            this lump on her wrist to her team leader.  This testimony 
 
            is uncontroverted and found to be true.  Claimant testified 
 
            that she was told to deal primarily through her team leader 
 
            rather than directly with her supervisor.  This testimony is 
 
            likewise uncontroverted and found to be true.
 
            
 
                 Claimant's family physician took claimant off work on 
 
            June 21, 1989 and referred her to a specialist, Scott B. 
 
            Neff, D.O., an orthopedic surgeon.  Dr. Neff diagnosed a 
 
            ganglion cyst which he surgically removed on June 22.  
 
            Claimant remained off work upon the advice of Dr. Neff fol
 
            lowing the surgery and also under directives issued by the 
 
            Amoco company physician, Kevin Smith, M.D., until September 
 
            12, 1989.  At this time, she began to work part-time over a 
 
            period of sixteen weeks from September 12, 1989 through 
 
            January 1, 1990.  After January 1, 1990, she was placed on 
 
            medical leave due to her inability to continue working as a 
 
            result of hand pain upon the advice of physicians.  The 
 
            hours worked for each week during this period of part-time 
 
            employment is stipulated to by the parties and set forth in 
 
            the Conclusions of Law portion of this decision.  The 
 
            parties also stipulated that claimant reached maximum 
 
            healing on February 12, 1990.
 
            
 
                 During claimant's healing period, claimant was treated 
 
            and evaluated by claimant's family physician as well as Dr. 
 
            Neff, Dr. Smith (specialty unknown), and an orthopedic 
 
            surgeon, Sinesio Misol, M.D.  Thereafter, claimant was eval
 
            uated by Paul K. Ho, M.D., an orthopedic surgeon, Robert C. 
 
            Jones, M.D., a neurosurgeon, and Jerome G. Bashara, M.D., 
 
            another orthopedic surgeon.  Of these physicians, Dr. Neff, 
 
            Dr. Ho and Dr. Jones all believe that claimant's ganglion 
 
            cyst probably was caused by or at least aggravated by 
 
            claimant's repetitive hand work at Amoco.  Dr. Misol and Dr. 
 
            Bashara did not provide causal connection opinions.  Dr. 
 
            Smith opined that the ganglion cyst was not related to 
 
            claimant's work.  No report of the views of claimant's 
 
            personal physician appears in the record of this case.  Dr. 
 
            Neff and Dr. Ho are board certified specialists in orthope
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            dic surgery.  The certified status of Dr. Jones, if any, is 
 
            unknown.  Although the plant nurse testified at hearing that 
 
            Dr. Smith is a specialist in occupational injuries, it is un
 
            known if this is a recognized medical specialty or only a 
 
            limitation on the type of patient care.  The finding of a 
 
            work injury is based upon the views of the three specialists 
 
            in this case, one of which was Dr. Neff, the treating ortho
 
            pedic surgeon.
 
            
 
                 The finding that claimant suffers from carpal tunnel 
 
            syndrome is based upon the views of Dr. Ho, Dr. Jones and 
 
            Dr. Bashara.  Dr. Ho and Dr. Jones felt that the condition 
 
            was the result of a combination of claimant's repetitive 
 
            work at Amoco, both before and after the cyst surgery, and 
 
            the formation of scar tissue as a result of the removal of 
 
            the cyst.  Consequently, they felt that the condition was 
 
            work related.  Nothing appears in the record to show what 
 
            Dr. Bashara may have felt about causation.  Dr. Neff and Dr. 
 
            Misol rejected diagnoses of carpal tunnel syndrome but of
 
            fered no other explanation of claimant's continuing prob
 
            lems.  Dr. Neff indicated that claimant should return to 
 
            work in February 1990 and that she could use her wrist in a 
 
            repetitive fashion if she were given a wrist to use.  It is 
 
            unclear how Dr. Neff could arrive at such a conclusion when 
 
            claimant was unable to continue even part-time work after a 
 
            sixteen week effort to return to work in the fall of 1989.  
 
            Dr. Misol stated that he was not impressed with claimant's 
 
            case due to a lack of objective abnormalities.  As 
 
            claimant's complaints are found credible, Dr. Misol's views 
 
            are not convincing.  Therefore, based upon the more credible 
 
            views of Dr. Ho and Dr. Jones, it is found that the work in
 
            jury of June 22, 1989 is a cause of claimant's right carpal 
 
            tunnel syndrome and her continuing problems at the present 
 
            time.
 
            
 
                 The work injury of June 22, 1989 is a cause of a 4 
 
            percent permanent partial impairment to the right arm.  
 
            Claimant is also permanently restricted from performing 
 
            repetitive work with his right arm.  This permanency is the 
 
            result of the carpal tunnel syndrome.  These findings are 
 
            based upon the views of Dr. Jones and Dr. Bashara.  Dr. 
 
            Jones is the author of the permanent restrictions and Dr. 
 
            Bashara is the only physician to have rated claimant's per
 
            manent partial impairment.  The contrary views of Dr. Neff 
 
            and Dr. Misol are rejected due to the same reasons given 
 
            above for the rejection of their views on the nature of 
 
            claimant's continuing problems.  Claimant's testimony as to 
 
            the extent of the loss of use of her arm is found credible 
 
            and her views are more consistent with the opinions of Dr. 
 
            Jones and Dr. Bashara.
 
            
 
                 On February 28, 1990, in a letter addressed to 
 
            claimant, defendant denied claimant's claim for compensation 
 
            benefits as a result of the ganglion cyst condition.  At 
 
            that time, Dr. Smith, again whose medical specialty is 
 
            unknown, had opined that the ganglion cyst condition was not 
 
            work related and no other physician had rendered an opinion 
 
            on the matter.  At that time, Dr. Neff had only rendered an 
 
            opinion that claimant had no permanent impairment and he 
 
            felt that she was healthy enough to return to work.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            However, by July 1, 1990, three specialists having special
 
            ties in orthopedic surgery or neurosurgery, including Dr. 
 
            Neff, had disagreed with Dr. Smith and opined that the cyst 
 
            condition was at least aggravated by claimant's work at 
 
            Amoco.  No other specialist rendered opinions on this issue.
 
            
 
                 On the issue of existence of carpal tunnel syndrome and 
 
            the permanency of claimant's problems, the specialists are 
 
            divided.  As of the time of the hearing of this case, defen
 
            dant has not paid any weekly benefits to claimant.
 
            
 
                                conclusions of law
 
            
 
                 I.  Claimant has the burden of proving by a preponder
 
            ance of the evidence that claimant received an injury which 
 
            arose out of and in the course of employment.  The words 
 
            "out of" refer to the cause or source of the injury.  The 
 
            words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            
 
                 It is not necessary that claimant prove her disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever court also held that the date of injury 
 
            in gradual injury cases is the time when pain prevents the 
 
            employee from continuing to work.
 
            
 
                 In the case sub judice, claimant has established by a 
 
            preponderance of the credible medical evidence that she 
 
            suffered a work injury consisting of not only a ganglion 
 
            cyst but causally connected carpal tunnel syndrome.
 
            
 
                 II.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  Permanent partial 
 
            disabilities are classified as either scheduled or unsched
 
            uled.  A specific scheduled disability is evaluated by the 
 
            functional method; the industrial method is used to evaluate 
 
            an unscheduled disability.  Martin v. Skelly Oil Co., 252 
 
            Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle 
 
            Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's 
 
            Sportswear, 332 N.W.2d 886, 997 (Iowa 1983).  When the 
 
            result of an injury is loss to a scheduled member, the com
 
            pensation payable is limited to that set forth in the appro
 
            priate subdivision of Code section 85.34(2).  Barton v. 
 
            Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  
 
            "Loss of use" of a member is equivalent to 'loss' of the 
 
            member.  Moses v. National Union C.M. Co., 194 Iowa 819, 184 
 
            N.W. 746 (1922).  Pursuant to Code section 85.34(2)(u) the 
 
            industrial commissioner may equitably prorate compensation 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            payable in those cases wherein the loss is something less 
 
            than that provided for in the schedule.  Blizek v. Eagle 
 
            Signal Company, 164 N.W.2d 84 (Iowa 1969).
 
            
 
                 In the case sub judice, it was found that claimant 
 
            suffered a 4 percent permanent loss of use of her arm.  
 
            Based upon such a finding, claimant is entitled to as a 
 
            matter of law to 10 weeks of permanent partial disability 
 
            benefits under Iowa Code section 85.34(2)(n) which is 4 
 
            percent of 250 weeks, the maximum allowable for an injury to 
 
            the arm in that subsection.
 
            
 
                 As claimant has established entitlement to permanent 
 
            partial disability, claimant is entitled to weekly benefits 
 
            for healing period under Iowa Code section 85.34(1) from the 
 
            date of injury until claimant returns to work; until 
 
            claimant is medically capable of returning to substantially 
 
            similar work or the work she was performing at the time of 
 
            injury; or, it is indicated that significant improvement 
 
            from the injury is not anticipated, whichever occurs first.  
 
            It was found that claimant was totally off work as a result 
 
            of her injury for two periods of time.  She is entitled to 
 
            temporary total disability benefits from June 21, 1989 
 
            through September 11, 1989, and again from January 2, 1990 
 
            through February 12, 1991, a total of 70 weeks.
 
            
 
                 In an attempt to return to work, claimant worked part-
 
            time between September 12, 1989 and January 1, 1990.  
 
            Claimant is therefore entitled to temporary partial disabil
 
            ity benefits under Iowa Code section 85.33(4).  These bene
 
            fits consist of two-thirds of the difference between 
 
            claimant's actual weekly wages and her customary gross 
 
            weekly rate.  Claimant's entitlement to these benefits is 
 
            calculated as follows:
 
            
 
            Period of Temporary Partial Disability:
 
            Claimant worked part-time from September 12, 1989 through 
 
            December 28, 1989 (over a period of 16 weeks).  The first 
 
            week and each week thereafter began on a Tuesday and ended 
 
            on the following Monday.
 
            
 
            GWE = Gross weekly earnings per stipulation:  $254.40.
 
            
 
                                 Amount         Amount
 
                     Hours       Earned         Earned       x (66.67%)
 
            Week    Worked     ($6.36/hr.)     Less GWE      ____TPD___
 
            
 
            1         16          101.76         152.64         103.10
 
            2         22          139.92         114.48          76.32
 
            3         16          101.76         152.64         103.10
 
            4         12           76.32         178.08         118.73
 
            5         22          239.92         114.48          76.32
 
            6          4           25.44         228.96         152.64
 
            7         20          127.20         127.20          84.80
 
            8         20          127.20         127.20          84.80
 
            9          0            0            254.40         167.31
 
            10         6           38.16         216.24         144.17
 
            11        20          127.20         127.20          84.80
 
            12         4           25.44         228.96         152.65
 
            13         8           50.88         203.52         135.69
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            14        12           76.32         178.08         118.73
 
            15         0            0            254.40         167.31
 
            16         4           25.44         228.96         152.65
 
            
 
                      Total Temporary Partial Disability     $1,923.13  
 
            The last week began on December 26, 1989 and ended on 
 
            January 1.  Therefore, temporary total disability begins on 
 
            January 2, 1990.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  However, claimant is enti
 
            tled to an order of reimbursement only if claimant has paid 
 
            those expenses.  Otherwise, claimant is entitled to only an 
 
            order directing the responsible defendant to make such pay
 
            ments.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
            
 
                 In the case at bar, the parties stipulated in the pre
 
            hearing report that the expenses sought by claimant were re
 
            lated to claimant's arm condition.  The dispute was the 
 
            causal connection of the arm condition to the work injury.  
 
            As it was found that the arm condition is work related, the 
 
            expenses set forth in exhibits 4 and 5 will be awarded under 
 
            Iowa Code section 85.27 except for the costs of the prepara
 
            tion of the letter and medical reports which constitute 
 
            litigation costs.  These costs are also awarded to claimant 
 
            but not as a medical expense.
 
            
 
                 IV.  Finally, claimant seeks additional weekly benefits 
 
            under Iowa Code section 86.13.  The unnumbered last para
 
            graph of this code section states that if there is a delay 
 
            in commencement of benefits without reasonable and probable 
 
            cause or excuse, the industrial commissioner may award extra 
 
            weekly benefits in an amount not to exceed 50 percent of the 
 
            amount of the benefits that were unreasonably delayed or 
 
            denied.  Defendants may deny or delay benefits only when the 
 
            claim is fairly debatable.  Saydel v. University of Iowa 
 
            Physical Plant, Appeal Decision, November 1, 1989.  When the 
 
            claim is "fairly debatable," the insurer is entitled to 
 
            debate it, whether the debate concerns a matter of fact or 
 
            law.  In reviewing the propriety of defendant's actions, 
 
            Iowa Code section 507B.4(9) lists unfair claim practices 
 
            which are also useful as a statement of public policy on 
 
            what conduct is unreasonable.
 
            
 
                 It is concluded in this case that as a matter of law 
 
            defendant unreasonably withheld claimant's entitlement to 
 
            temporary total disability and temporary partial disability 
 
            benefits for the period of time between June 21, 1989 and 
 
            February 28, 1990.  At the time of the initial claim denial 
 
            letter of February 28, 1990, defendant had the right to rely 
 
            upon the views of Dr. Smith, especially when Dr. Neff and 
 
            Dr. Misol never specifically rendered an opinion on the 
 
            matter.  However, by July 1, 1990, three specialists, in
 
            cluding the treating physician, Dr. Neff, concluded that the 
 
            ganglion cyst was  work related.  At that point in time, the 
 
            claim for temporary total disability and temporary partial 
 
            disability was no longer fairly debatable.  The views of 
 
            three specialists cannot be fairly challenged by a single 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            view of a general practitioner, especially when one of those 
 
            specialists is the treating physician.  It is further 
 
            concluded that 10 additional weeks of compensation is 
 
            appropriate as a penalty in this matter for defendant's 
 
            misconduct.  These benefits shall be payable from July 1, 
 
            1990, the time when the claim became no longer fairly 
 
            debatable.
 
            
 
                 With reference to the denial of permanency benefits, 
 
            the issue of permanency and the extent of any permanency has 
 
            always been fairly debatable in this case.  Therefore, the 
 
            claim for penalty benefits for a failure to pay permanency 
 
            benefits is denied.
 
            
 
                                      order
 
            
 
                 1.  Defendant shall pay the claimant ten (10) weeks of 
 
            permanent partial disability benefits at the rate of one 
 
            hundred sixty-seven and 31/100 dollars ($167.31) per week 
 
            from February 13, 1991.
 
            
 
                 2.  Defendant shall pay the claimant healing period 
 
            benefits from June 21, 1989 through September 11, 1989, and 
 
            again from January 2, 1990 through February 12, 1991, at the 
 
            rate of one hundred sixty-seven and 31/100 dollars ($167.31) 
 
            per week.
 
            
 
                 3.  Defendant shall pay temporary partial disability 
 
            benefits as set forth in "Appendix A" of this decision.
 
            
 
                 4.  Defendant shall pay the medical expenses as set 
 
            forth in exhibits 4 and 5, except for the litigation costs.  
 
            Claimant shall be reimbursed for any of these expenses paid 
 
            by her.  Otherwise, defendant shall pay the provider 
 
            directly any lawful late payment penalties imposed upon the 
 
            account by the provider.
 
            
 
                 5.  As a penalty for unreasonable denial of temporary 
 
            total disability and temporary partial disability benefits, 
 
            defendant shall pay to claimant an additional ten (10) weeks 
 
            of weekly compensation at the rate of one hundred sixty-
 
            seven and 31/100 dollars per week from July 1, 1990.
 
            
 
                 6.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum.
 
            
 
                 7.  Defendant  shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 8.  Defendant shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.  This award 
 
            also includes the costs of the letter and medical reports 
 
            which do not constitute proper medical expenses under Iowa 
 
            Code section 85.27.
 
            
 
                 9.  Defendant shall file an activity reports upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 
 
                 Signed and filed this _____ day of August, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Harry W Dahl
 
            Attorney at Law
 
            974 73rd St  Ste 16
 
            Des Moines IA 50312
 
            
 
            Mr Robert L Ulstad
 
            Attorney at Law
 
            1031 Central Ave
 
            P O Box 1678
 
            Ft Dodge IA 50501
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1803; 4000.2
 
                      Filed August 19, 1991
 
                      Larry P. Walshire
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RENEE UNDERWOOD,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 933323
 
            AMOCO OIL COMPANY,  :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                 Self-Insured,  :       D E C I S I O N
 
                 Defendant.     :
 
                      :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            
 
                 Extent of permanent partial disability.
 
            
 
            4000.2
 
            Additional 10 weeks of benefits awarded as a penalty.  It is 
 
            concluded that defendant acted unreasonably in relying upon 
 
            the views of its company physician, a general practitioner, 
 
            when three specialists, whose opinions were not challenged 
 
            by any other specialist, disagreed with the physician's 
 
            opinion and felt that the condition was work related.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RENEE UNDERWOOD,              :
 
                                          :
 
                 Claimant,                :      File No. 933323
 
                                          :
 
            vs.                           :
 
                                          :   M O D I F I C A T I O N
 
            AMOCO OIL COMPANY,            :
 
                                          :             O F
 
                 Employer,                :
 
                 Self-Insured,             :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            Paragraph 3 of the Order portion of the arbitration decision 
 
            dated August 19, 1991 is modified by striking the words 
 
            "Appendix A" and inserting in lieu thereof the following:  
 
            "the chart on page 7."
 
                 
 
                 Signed and filed this _____ day of August, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Harry W Dahl
 
            Attorney at Law
 
            974 73rd St  STe 16
 
            Des Moines IA 50312
 
            
 
            Mr robert L Ulstad
 
            Attorney at Law
 
            1031 Central Ave
 
            P O Box 1678
 
            Ft. Dodge IA 50501
 
            
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            LARRY ETHELL,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File Nos. 858197/933329
 
            3 M COMPANY,                  :
 
                                          :             A P P E A L
 
                 Employer,                :
 
                                          :           D E C I S I O N
 
            and                           :
 
                                          :
 
            NORTHWESTERN NATIONAL,        :
 
                                          :
 
                 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 May 21, 1991 is affirmed and is adopted as the final 
 
            agency action in this case with the following additional 
 
            analysis:
 
            Defendants raise on appeal the issue whether certain 
 
            testimony of defendants' witness was improperly excluded.  A 
 
            fair reading of the transcript indicates that defendants' 
 
            witness, a vocational rehabilitationist, had generated a 
 
            Bureau of Labor salary survey and had used that information 
 
            in part to produce a written report.  The deputy disallowed 
 
            defendants' offering by live testimony information that 
 
            could not have been offered in writing.  (Presumedly, the 
 
            information or report would not have been allowed into 
 
            evidence as it would not have been served on the claimant in 
 
            a timely manner.)  Defendants' witness offered testimony as 
 
            to various types of jobs that might be available to claimant 
 
            and the pay range of those jobs (transcript, pages 128-129).  
 
            Defendants argue in their appeal brief that the ruling 
 
            prohibited testimony about specific examples of available 
 
            jobs for claimant.  However, defendants' witness did give 
 
            testimony on specific jobs that might be available to 
 
            claimant.  Defendants were allowed to offer and did give 
 
            testimony on available employment suitable for claimant.  
 
            The deputy's ruling apparently only precluded a limited 
 
            portion of the witness' testimony.  There was no error in 
 
            the ruling which precluded offering evidence indirectly that 
 
            would not have been admissible directly.  Even if the ruling 
 
            were in error, the error would be harmless.  There is 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            evidence in the record that there is suitable employment 
 
            available to claimant and the potential pay for the 
 
            employment.  Those facts, as well as all other relevant 
 
            facts, support the finding that claimant currently has a 
 
            present cumulative industrial disability of 40 percent.  A 
 
            claimant's loss of earnings, or in this case claimant's 
 
            current earnings, is only one factor used to determine 
 
            claimant's loss of earning capacity.
 
            Claimant and defendants shall equally bear the costs of the 
 
            appeal, including the preparation of the hearing transcript.
 
            Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Larry D. Spaulding
 
            Attorney at Law
 
            801 Grand Ave., Ste 3700
 
            Des Moines, Iowa 50309-2727
 
            
 
            Mr. Roger L. Ferris
 
            Attorney at Law
 
            1900 Hub Tower
 
            699 Walnut
 
            Des Moines, Iowa 50309
 
            
 
 
         
 
         Page   1
 
         
 
         51100 51802 51803 53002 53700
 
         Filed December 26, 1991
 
         Byron K. Orton
 
         MDM
 
         before the iowa industrial commissioner
 
         _________________________________________________________________
 
                                       :
 
         LARRY ETHELL,                 :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File Nos. 858197/933329
 
         3 M COMPANY,                  :
 
                                       :             A P P E A L
 
              Employer,                :
 
                                       :           D E C I S I O N
 
         and                           :
 
                                       :
 
         NORTHWESTERN NATIONAL,        :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         _________________________________________________________________
 
         
 
         51100 51802 51803
 
         Claimant sustained an injury to the low back which resulted in 
 
         surgery and 10 percent impairment.  At age 49, with excellent 
 
         experience as an industrial electrician, claimant was reemployed 
 
         by employer at same job.  Fifteen percent industrial disability 
 
         was awarded.
 
         Claimant reinjured his back doing same job and incurred another 
 
         surgery with a 20 percent combined impairment and 35-pound 
 
         lifting restriction.  Employer did not reemploy, but offered 
 
         vocational rehabilitation.  Claimant entered school, but quit due 
 
         to finding a higher paying job as compared to the last injury.  
 
         Claimant awarded an additional 25 percent due to loss of access 
 
         to job market notwithstanding an increase in actual earnings.  
 
         Claimant was motivated.
 
         
 
         53002
 
         Claimant's weekly rate of compensation excluded night shift 
 
         differential as it was a premium pay.  Weeks involving illness 
 
         were included as claimant was compensated for the leave.  Short 
 
         weeks and holidays were excluded as they did not adequately 
 
         represent claimant's earnings.
 
         
 
         53700
 
         Defendants' witness, a vocational rehabilitationist, was not 
 
         allowed to read from a report at time of hearing.  Deputy did not 
 
         abuse discretion in not allowing evidence indirectly that would 
 
         have been disallowed if offered directly.  Because witness gave 
 
         testimony from memory about available employment, it was harmless 
 
         error for deputy to disallow reading of an untimely report.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BETTY LASHLEY,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 933383
 
            VAN WYK, INC.,                :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :    
 
                                          :
 
            CIGNA INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                               STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Betty 
 
            Lashley against Van Wyk, Inc., her former employer, and its 
 
            insurance carrier Cigna Insurance Company based upon an 
 
            injury that occurred on October 30, 1989.  The issues to be 
 
            determined are fixing the rate of compensation and 
 
            determining the rate of permanent partial disability, 
 
            including whether the permanency is  scheduled or one which 
 
            should be compensated industrially.  
 
            
 
                 The case was heard at Mason City, Iowa, on July 15, 
 
            1993.  The evidence consists of joint exhibits 1 through 11 
 
            and testimony from Betty Lashley and Darla Van Wyk.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Betty Lashley is a 59-year-old married woman who was 
 
            working as a team semi driver with her husband Russell when 
 
            the truck went off the road, overturned, and Betty was 
 
            injured.  The injury occurred in Florida and her initial 
 
            care was provided by E. Tobias, M.D.  Betty was hospitalized 
 
            where it was found that she had an avulsion fracture of the 
 
            humeral head of her left humerus and that the head was 
 
            dislocated into the subscapular area and impacted.  Open 
 
            reduction and fixation surgery was performed.  It was 
 
            necessary to pry the head of the humerus back through the 
 
            capsular tear.  The surgery included repair of the medial 
 
            capsule and debridement of the inferior glenoid (exhibit 9, 
 
            pages 3-4).
 
            
 
                 Following the surgery Betty returned to Iowa where she 
 
            entered into a course of medical care.  She underwent 
 
            therapy and eventually attempted to return to work.  At the 
 
            time of the attempted return she complained of pain from 
 
            bouncing around in the truck.  The attempt was unsuccessful.  
 
            
 
                 Following the unsuccessful return to work Betty 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            commenced receiving care from Sterling Laaveg, M.D., a Mason 
 
            City, Iowa, orthopedic surgeon.  At his initial examination 
 
            on November 16, 1990, Dr. Laaveg noted the presence of the 
 
            incision on claimant's left shoulder and also noted atrophy 
 
            of the anterior deltoid, one of the muscles of the shoulder.  
 
            He measured the range of motion of the shoulder and found it 
 
            to be mildly limited (ex. 6, p. 1).  Dr. Laaveg felt that 
 
            claimant might have a torn rotator cuff but an arthrogram of 
 
            the shoulder was interpreted as being normal.  He then 
 
            formed the opinion that she had subacromial bursitis (ex. 6, 
 
            p. 2).  Therapy and a subacromial injection were provided 
 
            without success.  On January 28, 1991, it was decided that 
 
            further surgery would be performed (ex. 6, p. 4).  On 
 
            February 19, 1991, claimant's shoulder was examined under 
 
            general anesthesia, arthroscopy of the shoulder was 
 
            performed and minor debridement of the glenorhumeral joint 
 
            was performed.  The metal plate and screws which had been 
 
            used to stabilize the fractured head were removed (ex. 6,  
 
            p. 5).  On June 10, 1991, it was reported that Betty had 
 
            reached maximum improvement and that she had a permanent 
 
            partial impairment of 20 percent of the left upper 
 
            extremity.  It was recommended that she find an easier job 
 
            than truck driving (ex. 6, p. 6).  Following recuperation 
 
            from the 1991 surgery Betty was placed in a work 
 
            conditioning program and eventually attempted a return to 
 
            truck driving.  She was again unsuccessful due to her 
 
            complaints of pain.  Her employer, Van Wyk, Inc., made a 
 
            good faith reasonable effort to accommodate her limitations.  
 
            Betty had the assistance of Deanna Harris, a rehabilitation 
 
            specialist.  Despite the forgoing Betty did not resume 
 
            employment.  Her husband's job changed and took him to 
 
            western Iowa where she had moved in order to be with him.  
 
            
 
                 At the present time Betty works part-time providing 
 
            care for an elderly couple.  She has declined offered 
 
            vocational assistance for seeking full-time employment.  
 
            Betty has not made a serious effort to obtain replacement 
 
            employment.  
 
            
 
                 Betty had worked for Van Wyk, Inc., only a few weeks at 
 
            the time of the accident.  Prior to then she had been 
 
            employed in the computer room of Iowa Kemper Insurance 
 
            Company.  Prior to that she had been a filing clerk for the 
 
            insurance company.  She had been a housewife for 
 
            approximately ten years before beginning work in 1979 at 
 
            Winnebago Industries where she sewed seats for motor homes 
 
            for approximately one and one-half years.  The most Betty 
 
            has ever earned from any of her employments was in the range 
 
            of $16,000 per year.  
 
            
 
                 The parties stipulated to Betty's earnings and to what 
 
            the rate of compensation should be after resolution of the 
 
            dispute concerning what is shown on the pay sheets as "per 
 
            diem."  Claimant was paid as a truck driver by Van Wyk based 
 
            upon a percentage of the fees generated by the loads which 
 
            she hauled.  One-third of the percentage was designated to 
 
            be an expense allowance.  This means that for purposes of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            taxes, that neither Betty nor the employer paid FICA tax on 
 
            that portion of her earnings.  It was not subject to income 
 
            tax for Betty and the employer was still able to obtain a 
 
            tax deduction for paying it to her.  Though it was called 
 
            "per diem" it was really not a "per diem" allowance since 
 
            the term "per diem" literally translated means per day.  The 
 
            amount of the so-called per diem allowance was not shown to 
 
            be related to the personal living expenses incurred by the 
 
            employee.  It was related entirely to the amount of work the 
 
            employee provided, the same as the portion of the earnings 
 
            which were treated as wages and were subject to all taxes.  
 
            There was no explanation in the record showing why one-third 
 
            was treated as per diem rather than perhaps one-fourth or 
 
            one-half.  No relationship was shown between the amount that 
 
            was designated as per diem and the actual expenses involved.  
 
            Under the system which was used, it would be possible for 
 
            the claimant to have been on the road or driving and 
 
            incurring personal expenses on days for which there would 
 
            have been no wages payable if, for example, there were to be 
 
            a layover or a considerable number of miles driving without 
 
            carrying a load.  If the claimant incurred motel expenses, 
 
            with the authorization of the employer, she was reimbursed 
 
            directly for those motel expenses.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be addressed is the issue concerning 
 
            the rate of compensation.  Section 85.61(3) clearly excludes 
 
            reimbursement and expense allowances from the definition of 
 
            gross earnings.  The unusual factor in this case is that 
 
            what is called a per diem or expense allowance is based 
 
            directly upon the amount of work performed and the amount of 
 
            earnings generated.  It has no relationship to actual 
 
            expenses.  It is a misnomer to call it "per diem" because it 
 
            is paid based upon the amount of work performed rather than 
 
            per day or the amount of expense incurred.  Black's Law 
 
            Dictionary, 6th ed, 1990, defines per diem as "by the day, 
 
            an allowance or amount of so much per day."  The method of 
 
            computing a per diem allowance used in this case has been 
 
            seen in other cases.  It is apparently being used somewhat 
 
            regularly in the trucking industry.  It is a device used to 
 
            avoid taxes.  It is not, however, a bona fide expense 
 
            allowance or reimbursement of expenses.  It is not a per 
 
            diem allowance because it is not paid by the day.  An 
 
            allowance such as $15 per day or $100 per week as was the 
 
            situation in the case Norton v Stylecraft, Inc., I State of 
 
            Iowa Industrial Commissioner Decisions IV, 1001 (App. Dec. 
 
            1985) is an example of a "per diem" expense allowance and is 
 
            clearly distinguishable from the current situation in which 
 
            some portion of the earnings of the employee are arbitrarily 
 
            designated as "per diem" and then both the employer and the 
 
            employee benefit from doing so in the nature of reduced FICA 
 
            taxes.  The employee also benefits from reduced income 
 
            taxes.  While the Internal Revenue Service may very well 
 
            allow this type of a procedure to avoid taxation for FICA or 
 
            income tax purposes, such does not control whether or not 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the payment constitutes gross earnings under the Iowa 
 
            Workers' Compensation Act.  It must be remembered that 
 
            section 85.18 prohibits any contract, rule or device which 
 
            relieves the employer, in whole or in part, from any 
 
            liability created by chapter 85 of the Code.  Simply 
 
            labeling a part of a person's earnings as "per diem" or an 
 
            "expense allowance" does not make that portion of the 
 
            earnings an actual, bona fide per diem or expense allowance.  
 
            For a payment to be a bona fide per diem or expense 
 
            allowance there must be some relationship between the amount 
 
            of the allowance and the amount of the expenses for which it 
 
            is purportedly related.  It need not be a direct 
 
            reimbursement type of system such as what the employer in 
 
            this case uses for motel bill charges but there must be some 
 
            rational relationship between the expense allowance and the 
 
            expenses for which it is intended.  If defendants were 
 
            correct, it would be possible for them to designate 75 
 
            percent of the earnings as a per diem allowance.  It would 
 
            be possible for them to state that the employee was being 
 
            paid the hourly federal minimum wage and that all of the 
 
            excess above the federal minimum wage amount was an expense 
 
            allowance.  It is concluded that the practice used in this 
 
            case of labeling one-third of the employee's earnings as a 
 
            per diem expense allowance violates section 85.18 of the 
 
            Code.  It is a device which reduces the employer's liability 
 
            to the injured employee.  The employee's entire gross 
 
            earnings, before deduction of any so-called per diem 
 
            allowance, is to be used in determining the rate of 
 
            compensation.  Phillips v. C and K Transport, file number 
 
            844999 (App. Dec. May 26, 1993); Minnick v. C.R.S.T., Inc., 
 
            file number 865832 (Dec. 21, 1989).
 
            
 
                 In accordance with the stipulation made by the parties, 
 
            it is therefore determined that claimant's gross weekly wage 
 
            is $357 and her rate of compensation is $228.60 per week.  
 
            It should be noted that in order to provide the stipulated 
 
            rate, the earnings should be $358 per week.  
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 In this case there is no express expert medical opinion 
 
            which attributes the problems in Betty's shoulder to the 
 
            truck accident which is the subject of this case.  It is 
 
            noted, however, that expert opinion is not always necessary 
 
            in every case.  This case has unrefuted evidence of a lack 
 
            of any prior shoulder problems.  It has a very severe acute 
 
            trauma which is well documented in the medical records.  The 
 
            physicians have all relied upon the history of injury 
 
            provided and none have given any indication that anything 
 
            other than the accident which is the subject of this case is 
 
            responsible for causing Betty's shoulder problems.  There is 
 
            not a scintilla of evidence in the record which even 
 
            suggests that the shoulder problems might have resulted from 
 
            any other causative factor.  The statement by Dr. Emerson in 
 
            his January 16, 1992 note, which states, "Etiology of 
 
            symptoms unknown." is interpreted as meaning that he does 
 
            not know the physiological origin of the symptoms.  It is 
 
            not construed as meaning that he does not attribute those 
 
            symptoms to the truck accident.  Further, in view of the 
 
            extensive damage, particularly the impaction of the humeral 
 
            head into the soft tissues of the shoulder portion of the 
 
            shoulder joint there is every reason to believe that some 
 
            portion of the symptoms are due to damage to the socket 
 
            portion of the shoulder joint, rather than being entirely 
 
            due to the fracture of the humeral head.  In fact the 
 
            medical evidence indicates that the humeral fracture has 
 
            healed well.  In this case it is determined that the 
 
            evidence is sufficiently strong to show that it was the 
 
            original accident and trauma which is responsible for the 
 
            current impairment and disability which limits Betty's use 
 
            of her shoulder. 
 
            
 
                 The next issue to be addressed is whether this is a 
 
            scheduled injury to the arm.  The original operative report 
 
            from Dr. Tobias clearly shows serious damage to the glenoid 
 
            cavity of claimant's shoulder as well as a fracture of the 
 
            humerus.  The subsequent surgery performed on February 19, 
 
            1991, included debridement of the glenoid humeral joint.  
 
            The range of motion tests shown in the medical records are 
 
            the type of tests used to measure function of the shoulder 
 
            in the AMA Guides to the Evaluation of Permanent Impairment, 
 
            3rd ed (revised), section 3.1(g) pages 34-37.  In Stedman's 
 
            Medical Dictionary, 4th ed., 1982, the term glenoid is 
 
            defined as "...socket of a joint...; denoting the articular 
 
            depression of the scapula entering into the formation of the 
 
            shoulder joint."  From all of the references found in the 
 
            medical records it is abundantly clear that the initial 
 
            trauma and initial serious injury in this case was not 
 
            limited to the arm.  
 
            
 
                 The records seem to indicate that the fracture of the 
 
            humeral head has healed acceptably well.  Claimant continues 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            to have problems involving the injured shoulder.  The 
 
            limitations objectively measured by the medical 
 
            practitioners in the form of range of motion studies are 
 
            measurements of shoulder function.  As indicated by the Iowa 
 
            Supreme Court in the case Lauhoff Grain v. McIntosh, 395 
 
            N.W.2d 834 (Iowa 1986), the term "lower extremity" has a 
 
            different meaning than the term "leg."  It was also noted 
 
            that though the function of a hip is to provide articulation 
 
            to the leg, that impairment of the function of the hip is 
 
            not a scheduled injury of the leg.  The same reasoning would 
 
            be true if the court were dealing with an "upper extremity" 
 
            since the term has a different meaning than that statutory 
 
            term of "arm."  It includes the shoulder.  Even though the 
 
            function of the shoulder impacts upon the ability to make 
 
            use of the arm, disability which has its origin in the 
 
            shoulder joint is not a scheduled disability of the arm.  In 
 
            the AMA Guides, it is noted that the shoulder is responsible 
 
            for 60 percent of the function of the upper extremity.  The 
 
            other 40 percent is located in the elbow.  The undersigned 
 
            recently wrote extensively on the issue of whether an injury 
 
            is a scheduled injury of the arm or an unscheduled injury of 
 
            the shoulder in the case Weavill v. John Morrell and Co., 
 
            file number 903186, (July 22, 1993).  That analysis is 
 
            incorporated herein. 
 
            
 
                 In this case the glenoid cavity was injured, damaged 
 
            and deranged.  There is atrophy of the anterior deltoid 
 
            muscle.  She has been diagnosed with bursitis.  Clearly, the 
 
            disability in this case is not confined to the claimant's 
 
            arm.
 
            
 
                 It is therefore concluded that the permanent disability 
 
            and permanent impairment in this case is not restricted to 
 
            Betty Lashley's arm.  Part of the disability and impairment 
 
            is located in her shoulder.  Accordingly, the disability is 
 
            to be evaluated industrially.  
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            'disability' to mean 'industrial disability' or loss of 
 
            earning capacity and not a mere 'functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element 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, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 Betty has not made a serious effort to restore herself 
 
            to the level of earnings which she enjoyed while employed by 
 
            Van Wyk, Inc.  In fact, she has declined to seek retraining 
 
            or other full-time employment in favor of her current job.  
 
            That fact alone does not mean that she has no disability or 
 
            that the disability is trivial.  It simply means that her 
 
            current level of earnings is not an accurate indicator of 
 
            her actual earning capacity.  When all the material factors 
 
            of industrial disability are considered, it is determined 
 
            that Betty Lashley has a 25 percent permanent partial 
 
            disability as a result of the October 30, 1989 injury.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Betty 
 
            Lashley one hundred twenty-five (125) weeks of compensation 
 
            for permanent partial disability at the rate of two hundred 
 
            eighty-eight and 60/100 dollars ($288.60) per week payable 
 
            commencing June 11, 1991.  
 
            
 
                 It is further ordered that defendants pay claimant the 
 
            difference in weekly compensation between the rate 
 
            determined in this decision and the weekly benefits which 
 
            had been previously paid for healing period and temporary 
 
            partial disability.  Defendants are entitled to a credit for 
 
            the dollar amount of all weekly compensation previously 
 
            paid.
 
            
 
                 It is further ordered that all accrued unpaid amounts 
 
            be paid in a lump sum together with interest pursuant to 
 
            Iowa Code section 85.30.
 
            
 
                 It is further ordered that the costs of this action are 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            assessed against defendants.
 
            
 
                 Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. H.P. Folkers
 
            Attorney at Law
 
            5 W State St.
 
            Mason City, Ia  50401
 
            
 
            Mr. Charles Cutler
 
            Attorney at Law
 
            729 Insurance Exchange Bldg
 
            Des Moines, Iowa  50309
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
                                               1803.1 3001    
 
                                               Filed August 16, 1993
 
                                               Michael G. Trier
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            BETTY LASHLEY, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 933383
 
            VAN WYK, INC., 
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            CIGNA INSURANCE,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1803.1
 
            Where original injury was fracture of the humeral head of 
 
            the arm and dislocation of the shoulder, including impaction 
 
            of the humeral head into the soft tissues of the socket of 
 
            the shoulder, it was held that the injury was not a 
 
            scheduled injury limited to the arm.  
 
            
 
            3001
 
            Where one-third of a truck driver's gross earnings was 
 
            arbitrarily designated by the employer to be an expense 
 
            allowance, thereby avoiding various taxes, such was not held 
 
            to be an expense allowance within the provisions of section 
 
            85.61(3) since the so-called "per diem" was based upon the 
 
            amount of work performed.  It was not a daily allowance or a 
 
            weekly allowance of any type.  There was no demonstrated 
 
            relationship between the amount of the so-called per diem 
 
            and the amount of the expenses for which it was purportedly 
 
            given.  The practice was therefore held to be a violation of 
 
            section 85.18 as being a device used to reduce the 
 
            employer's liability.