BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            SHARANE D. GREENLEE,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 934910
 
            CEDAR FALLS COMMUNITY SCHOOLS,  
 
                                                    A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            EMPLOYERS MUTUAL COMPANIES,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed June 18, 1993 is affirmed and is adopted as the final 
 
            agency action in this case with the following additional 
 
            analysis:
 
            
 
            Defendants contend they did not receive an independent and 
 
            impartial arbitration decision because the deputy industrial 
 
            commissioner allegedly became an advocate for the claimant.  
 
            In support of this allegation of bias defendants call the 
 
            industrial commissioner's attention to the following 
 
            language that appears on page 17 of the arbitration 
 
            decision:
 
            
 
            [I]t is one thing to bowl on a few occasions a week as a 
 
            recreational pursuit as compared to fast repetitive motions 
 
            using your hands and arms in your work every day, three to 
 
            five hours a day, five days a week, when you have to perform 
 
            or possibly lose your job and your livelihood.
 
            
 
            The quoted language does not take on the tone of an advocate 
 
            for the claimant.  Defendants quite properly raised an issue 
 
            regarding the claimant's bowling, which in turn obviously 
 
            needed to be addressed by the deputy in his arbitration 
 
            decision.  The deputy, citing the evidence in the record 
 
            that was convincing to him, concluded that the claimant's 
 
            bowling was not inconsistent with the 12 percent permanent 
 
            disability previously found by the deputy on page 16 of his 
 
            arbitration decision.  The language defendants find 
 
            objectionable is nothing more than the deputy industrial 
 
            commissioner emphasizing his finding that the claimant's 
 
            bowling did not alter, nor in his opinion was it 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            inconsistent with, his previous finding of a 12 percent 
 
            permanent disability.  The deputy's election to use such 
 
            emphasizing language when resolving a potentially crucial 
 
            factual dispute does not constitute bias, either in fact or 
 
            appearance, nor does it cause the deputy to cross the line 
 
            from impartial decision maker to that of an advocate.  
 
            Defendants' allegation of bias fails.
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of December, 1993.
 
            
 
            
 
            
 
            
 
                                 ________________________________
 
                                 BYRON K. ORTON
 
                                 INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert L. Rausch
 
            Attorney at Law
 
            P.O. Box 905
 
            Waterloo, Iowa 50704
 
            
 
            Mr. Philip H. Dorff, Jr.
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
            
 
            
 
            
 
                                     1101; 1108.50; 1401; 1402.20;
 
                                     1402.30; 2209; 5-1802; 5-1803;
 
                                     5-1701
 
                                     Filed December 27, 1993
 
                                     Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            SHARANE D. GREENLEE,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 934910
 
            CEDAR FALLS COMMUNITY SCHOOLS,  
 
                                                    A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            EMPLOYERS MUTUAL COMPANIES,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            1101, 1108.50, 1401, 1402.20, 1402.30, 2209
 
            
 
                 It was determined that claimant sustained only one 
 
            cumulative injury of bilateral carpal tunnel on the first 
 
            date that she was forced to quit work and that she did not 
 
            receive a separate and distinct injury on a later date which 
 
            was not the subject of this original notice and petition.  
 
            The medical evidence unequivocally supported claimant's 
 
            testimony and gave no support to defendants' contention of a 
 
            separate and distinct injury on a later date.  The decision 
 
            summarizes the position of the agency on section 85.34(2)(s) 
 
            cases with several cites of authority from the past to the 
 
            present.
 
            
 
            5-1802
 
            
 
                 Claimant was awarded healing period for two periods of 
 
            time each of which followed separate bilateral carpal tunnel 
 
            surgeries.
 
            
 
            5-1803
 
            
 
                 Impairment ratings were (1) 2.5 percent body as a whole 
 
            by the treating physician, (2) 4 percent body as a whole by 
 
            defendants' independent evaluator and (3) 12 percent body as 
 
            a whole by claimant's independent evaluator.  The decision 
 

 
            
 
            Page   2
 
            
 
            
 
            has considerable discussion about the qualifications of the 
 
            doctors, their method of rating and the use of the AMA 
 
            Guides.  
 
            
 
                 After bilateral carpal tunnel surgery on two different 
 
            occasions (four surgeries in all) claimant still had mild 
 
            median neuropathy established by electrodiagnostic studies 
 
            and a significant loss of grip strength verified by all 
 
            three doctors.  The impairment rating of claimant's 
 
            independent evaluator was found to be the superior rating 
 
            because of his qualifications, the method he used, his 
 
            explanation of his rating in a deposition, apparent 
 
            deficiencies in the ratings of the other doctors, and 
 
            because his rating seemed to be the most reliable and 
 
            comported best with all of the other evidence.
 
            
 
                 The decision finds that it is the task of physicians to 
 
            determine impairment.  It is the task of the industrial 
 
            commissioner to determine loss.  Iowa Code section 
 
            85.34(2)(s).  The term loss has been judicially determined 
 
            to include loss of use.  Moses v. National Union Coal Mining 
 
            Company.  Loss or loss of use are considerations in the 
 
            ultimate responsibility of the industrial commissioner which 
 
            is to determine permanent disability.  Iowa Code section 
 
            85.34 (first unnumbered paragraph).  
 
            
 
                 Although the industrial commissioner is obligated to 
 
            take into consideration all of the impairment ratings he is 
 
            not obligated, restricted or limited to making a scheduled 
 
            member award in the same amount as one of the impairment 
 
            ratings.  The industrial commissioner can consider any 
 
            factor so long as it is not an industrial disability factor.  
 
            Soukup v. Shores.  He is also privileged to use agency 
 
            expertise.  Iowa Administrative Procedure Act 17A.14(5).  
 
            His award should be upheld on review if it is supported by 
 
            substantial evidence.
 
            
 
                 In this case loss of grip strength and the fact that 
 
            claimant was foreclosed from performing her job as second 
 
            cook were taken into consideration as physical factors 
 
            tending to establish physical loss of use and physical 
 
            permanent disability and not as industrial disability 
 
            factors.
 
            
 
                 It was determined that claimant sustained a 12 percent 
 
            body as a whole loss of use pursuant to Iowa Code section 
 
            85.34(2)(s) and a 12 percent permanent disability pursuant 
 
            to Iowa Code section 85.34 (first unnumbered paragraph).
 
            
 
            5-1701
 
            
 
                 Defendants did not sustain the burden of proof by a 
 
            preponderance of the evidence that they were entitled to a 
 
            credit for income disability payments made to claimant 
 
            pursuant to a nonoccupational group health insurance policy 
 
            prior to hearing.  First of all, they did not prove that 
 
            they contributed to the plan.  Secondly, they did not prove 
 
            that the plan benefits would not have been payable to 
 
            claimant in addition to workers' compensation benefits.  The 
 
            best evidence that claimant is not entitled to both benefits 
 

 
            
 
            Page   3
 
            
 
            
 
            is the plan document.  Defendants did not place the plan 
 
            document in evidence.  The decision contains several cites 
 
            showing the agency precedent on this point.
 
            
 
                 Furthermore, defendants' did not prove the amount of 
 
            the credit to which they were entitled.  Claimant disputed 
 
            the amount of payments that she received and there was a 
 
            wide disparity in the contentions of the two parties.  The 
 
            other evidence favored claimant's contention.
 
            
 
            
 
 
            
 
            
 
            
 
                   
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                       
 
            SHARANE D. GREENLEE,      
 
                       
 
                 Claimant,  
 
                      
 
            vs.        
 
                                                    File No. 934910
 
            CEDAR FALLS COMMUNITY SCHOOLS, 
 
                                                 A R B I T R A T I O N
 
                 Employer,  
 
                                                     D E C I S I O N
 
            and        
 
                       
 
            EMPLOYERS MUTUAL COMPANIES,    
 
                       
 
                 Insurance Carrier,   
 
                 Defendants.     
 
            ___________________________________________________________
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Sharane 
 
            D. Greenlee, claimant, against Cedar Falls Community 
 
            Schools, employer, and Employers Mutual Companies, insurance 
 
            carrier, for benefits as a result of an alleged injury which 
 
            occurred on November 6, 1989.  A hearing was held in 
 
            Waterloo, Iowa, on March 8, 1993 and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Robert L. Rausch.  Defendants were 
 
            represented by Philip H. Dorff, Jr.  The record consists of 
 
            the testimony of Sharane D. Greenlee, claimant, and Lavonne 
 
            Arndt, food service manager, joint exhibits A through F and 
 
            G-1 through G-6, claimant's exhibits 1, 3, 4, 5, and 6, and 
 
            defendants' exhibit 1.  Claimant's exhibits 1, 3, 4 and 5, 
 
            which are four different wrist braces, were placed in the 
 
            custody of claimant's attorney until the expiration of all 
 
            appellate periods.  The numerous written exhibits placed in 
 
            evidence were excessive.  Much of this paper was not helpful 
 
            to the determination of the issues in this case, nor did it 
 
            contribute to the determination of the issues of this case.  
 
            
 
                 Paragraph 11 of the hearing assignment order provides 
 
            that the parties are ordered to meet at such time and in 
 
            such manner, as can be agreed upon prior to the date of the 
 
            scheduled hearing and claimant shall prepare and submit to 
 
            the deputy, at commencement of the hearing, a written 
 
            prehearing report executed by all parties which shall 
 
            include several items of information.  In this case both 
 
            attorneys had prepared separate prehearing reports and it 
 
            required several minutes of hearing time and the assistance 
 
            of the deputy in order to prepare a prehearing report to 
 
            define the stipulations and issues to be determined in this 
 
            case (Tran., p. 4).  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                     ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.  
 
            
 
                 Whether claimant sustained one cumulative injury on 
 
            November 6, 1989 or whether claimant has sustained, in 
 
            addition, a separate and distinct traumatic injury on 
 
            November 5, 1990, which was unrelated to the injury of 
 
            November 6, 1989, and for which defendants would not be 
 
            liable for any benefits in the determination of the issues 
 
            in this case.
 
            
 
                 Whether the alleged injury was the cause of either 
 
            temporary or permanent disability benefits.
 
            
 
                 Whether claimant is entitled to either temporary or 
 
            permanent disability benefits, and if so, the nature and 
 
            extent of benefits to which she is entitled.
 
            
 
                 Whether defendants are entitled to a credit for income 
 
            disability payments made to claimant prior to hearing 
 
            pursuant to a nonoccupational group health plan.
 
            
 
                                      INJURY
 
            
 
                 Defendants admit that claimant sustained an injury on 
 
            November 6, 1989, which arose out of and in the course of 
 
            employment with employer, which caused right carpal tunnel 
 
            surgery on December 12, 1989 and left carpal tunnel surgery 
 
            on January 16, 1990.  Defendants admit that claimant was off 
 
            work from November 6, 1989 to March 5, 1990 and that 
 
            claimant is entitled to temporary disability benefits for 
 
            this period of time (Transcript pp. 5 & 6; Prehearing Report 
 
            p. 1).  
 
            
 
                 Defendants further contend that claimant sustained a 
 
            second injury a year later on November 5, 1990, when she 
 
            slipped on some grease, started to fall, and caught herself, 
 
            but in the process jammed her right wrist and hand against a 
 
            table causing a second separate and distinct injury which is 
 
            not the subject of this litigation (Tran., pp. 6 & 20; Pre. 
 
            Rpt., p. 1).  Defendants contended that they either have 
 
            paid or will pay claimant's medical expenses for the second 
 
            injury as a separate and distinct claim (Trans., pp. 7 & 8; 
 
            Pre. Rpt., p. 2).  Subsequent to this second, alleged, 
 
            separate and distinct injury of November 5, 1990, claimant 
 
            received a second right carpal tunnel surgery on April 30, 
 
            1991 and a second left carpal tunnel surgery on July 23, 
 
            1991.  
 
            
 
                 Defendants contend that a separate first report of 
 
            injury was filed for the second alleged injury.  There is a 
 
            first report of injury in the record for this incident of 
 
            slipping on the grease on November 5, 1990 (Ex. C, p. 53).
 
            
 
                 Claimant denies that there was a second separate and 
 
            distinct injury on November 5, 1990.  Claimant contends that 
 
            there was only one cumulative injury and that it occurred on 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            November 6, 1989 (Trans., pp. 15 & 25).
 
            
 
                 Defendants contend that they are not liable and it 
 
            should not be determined in this proceeding that they are 
 
            liable for the second right and left carpal tunnel surgeries 
 
            because they are not the subject of this litigation based 
 
            upon the original notice and petition filed in this case 
 
            (Tran. pp. 9, 21 & 24).  
 
            
 
                 Claimant contends that she sustained a loss of both 
 
            hands and arms caused by a single accident pursuant to Iowa 
 
            Code section 85.34(2)(s) and that she should be compensated 
 
            on the basis of 500 weeks rather than on the basis of each 
 
            hand and arm separately and individually (Tran., pp. 18 & 
 
            19).
 
            
 
                 It is determined that claimant did not receive a 
 
            separate and distinct injury when she slipped and fell on 
 
            some grease and jammed her right wrist when she caught 
 
            herself on November 5, 1990.
 
            
 
                 It is further determined that claimant sustained only 
 
            one continuous cumulative injury which occurred on November 
 
            6, 1989.  
 
            
 
                 It is further determined that the injury, which 
 
            claimant sustained on November 6, 1989, was a cumulative 
 
            bilateral carpal tunnel injury to both hands and arms which 
 
            was caused by a single accident within the context of the 
 
            meaning of those words in Iowa Code section 85.34(2)(s).  
 
            
 
                 It is further determined that the work which claimant 
 
            performed for employer was the cause of this injury which 
 
            occurred on November 6, 1989, and that it arose out of her 
 
            employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
            402, 68 N.W. 63 (1955) and in the course of her employment.  
 
            McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 
 
            1971).  
 
            
 
                 The evidence to support these determinations is as 
 
            follows.
 
            
 
                 Claimant was 52 years old at the time of the hearing 
 
            and 49 years old at the time of the injury (Ex. B, p. 2; 
 
            Tran., p. 27).  Past employments include telephone 
 
            switchboard operator, file clerk, grocery checker, general 
 
            laborer, meter reader, hospital admitting and insurance 
 
            clerk, secretary and sales representative (Ex. B., pp. 9 & 
 
            10).  Claimant started to work for employer on August 20, 
 
            1984, in the food service department (Tran. p. 28; Ex. C, p. 
 
            55).  Claimant continued to be employed by the employer at 
 
            the time of the hearing.  Thus, claimant has been employed 
 
            by employer for approximately eight and one-half years.  
 
            Claimant performed the job duties of second cook and food 
 
            server from 1984 until 1989.  She was also employed by 
 
            employer as a janitor in the Summer of 1989 and 1990 (Tran., 
 
            p. 93; Ex. B, p. 4).  
 
            
 
                 The food service jobs performed by claimant required 
 
            preparing and serving large quantities of food in a short 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            period of time to high school and junior high school 
 
            students.  Both the second cook job and the food server job 
 
            required extensive repetitive use of both hands and arms.  
 
            Claimant described the hand and arm movements in some detail 
 
            in both her deposition and her hearing testimony.  Employer 
 
            did not dispute this testimony.  
 
            
 
                 Claimant denied, and there is no contrary evidence, 
 
            that claimant performed any repetitive work at home (Tran., 
 
            p. 39).  Claimant denied, and there is no contrary evidence, 
 
            that claimant's job as a secretary caused any hand or arm 
 
            problems (Tran., p. 85).  Claimant testified that the typing 
 
            involved in that job was only sporadic (Tran., p. 113).  
 
            Claimant denied and there is no evidence of any prior or 
 
            subsequent injuries or accidents involving her hands or arms 
 
            (Tran., pp. 59 & 60) other than slipping on the grease.
 
            
 
                 Claimant related that she assisted in preparing large 
 
            quantities of food for anywhere from 1400 to 1800 students 
 
            per day during the school year for approximately five years 
 
            (Trans., p. 32).  She typically worked five hours per day or 
 
            less (Trans., pp. 42 & 43).  Claimant contended that 
 
            employer reduced the number of employees and the number of 
 
            hours of work until it was very stressful to prepare so much 
 
            food in such a short period of time (Trans., pp. 44, 45 & 
 
            55).  Claimant contended that the work was repetitive and 
 
            required the use of both of her hands and arms (Trans., p. 
 
            46).
 
            
 
                 Claimant related that she first encountered a problem 
 
            with her hands and arms in 1986.  At that time on one 
 
            occasion one of her wrists flopped backwards (Tran., p. 46).  
 
            Claimant testified that she saw her family physician, Thomas 
 
            A. Bairnson, M.D., who diagnosed this as a strain or sprain 
 
            (Tran., p. 48).  She added that she did not believe that she 
 
            received any impairment from this incident (Tran., pp. 79 & 
 
            110; Ex. B, p. 15).  The records of Dr. Bairnson were not 
 
            introduced into evidence by either party.
 
            
 
                 The uncontroverted testimony of claimant is that she 
 
            had symptoms in both wrists beginning in 1986.  She 
 
            testified that her condition became worse over time (Tran., 
 
            p. 110).  She related "It was a slow, gradual process." 
 
            (Tran., p. 46).  
 
            
 
                 Claimant testified that she returned to Dr. Bairnson in 
 
            late 1989 and he referred her to see David F. Poe, M.D., an 
 
            orthopedic surgeon.  Dr. Poe first saw claimant on November 
 
            6, 1989.  On the first recorded visit to a doctor, in this 
 
            record, Dr. Poe diagnosed bilateral carpal tunnel and took 
 
            her off work.  Dr. Poe recorded, "This young woman has 
 
            bilateral carpal tunnel symptoms which seem to be related to 
 
            repetitive gripping at work in the Cedar Falls Community 
 
            School lunch line." (Ex. G-1, p. 4).  The doctor also 
 
            completed a form for employer on November 6, 1989, which 
 
            indicated that her condition was due solely to repetitive 
 
            gripping (Ex. G-1, p. 3). 
 
            
 
                 On December 12, 1989, Dr. Poe admitted claimant to the 
 
            hospital for her first surgery.  At that time Dr. Bairnson 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            performed the preoperative history and physical examination 
 
            on December 11, 1989.  Dr. Bairnson recorded, 
 
            
 
                 The patient has had increasing pain and numbness 
 
                 in the fingers and hands of both wrists, for which 
 
                 she was seen in the office on 10-26-89.  ... The 
 
                 patient was seen by Dr. Poe and was found to have 
 
                 bilateral carpal tunnel syndromes, which were 
 
                 relative to repetitive gripping at work in the 
 
                 Cedar Falls Community School lunch line." (Ex. 
 
                 G-5, p. 78).
 
            
 
                 Dr. Bairnson noted weakness in the right hand of 
 
            approximately 50 percent as compared to the left.  His 
 
            impression was "Carpal tunnel syndrome bilaterally, right 
 
            greater than the left." (Ex. G-5, p. 79).
 
            
 
                 Prior to her admission to the hospital, Dr. Poe 
 
            referred claimant to A. K Nakhasi, M.D., a neurologist, who 
 
            performed nerve conduction studies on November 13, 1989.  
 
            His studies showed, "Carpal Tunnel Syndrome, bilateral, mild 
 
            severity, left side is slightly worse than the left [sic]" 
 
            (Ex. G-4, p. 4).  On November 16, 1989, Dr. Nakhasi reported 
 
            "mild bilateral carpal tunnel syndrome."  to Dr. Poe (Ex. 
 
            G-4, p. 3).  
 
            
 
                 On June 22, 1990, after the first two surgeries, Dr. 
 
            Poe reported to the insurance carrier that claimant had 
 
            "bilateral carpal tunnel surgery" and that he planned to 
 
            evaluate her in six months to determine if there was any 
 
            permanency (Ex. G-1, p. 2).
 
            
 
                 On May 10, 1991, after the first three surgeries, Dr. 
 
            Poe prepared a statement which stated "Sharane Greenlee has 
 
            had bilateral carpal tunnel syndrome.  
 
            
 
                 It is my opinion that her carpal tunnel situation is 
 
            aggravated by repetitive gripping in her work." (Ex. G-1, p. 
 
            1).
 
            
 
                 With respect to whether claimant sustained a separate 
 
            and distinct injury to her right wrist on November 5, 1989, 
 
            Lavonne  Arndt, food service manager, testified that she 
 
            learned by way of the grapevine that claimant injured her 
 
            right wrist on November 5, 1990.  Arndt contacted claimant 
 
            and entered in her notebook, "11-5-90, Sharane slipped by 
 
            ovens on grease.  Caught herself on table and jammed wrists.  
 
            Right wrist.  No witness." (Tran., pp. 124 & 125).  Arndt 
 
            did not know if a first report of injury had been made out 
 
            for this incident of November 5, 1990 or not (Tran., pp. 
 
            120-126).
 
            
 
                 Claimant admitted that, on November 5, 1990, she did 
 
            slip and catch her fall and injured her hand on the table 
 
            and filed an accident report because employer required all 
 
            accidents to be reported.  The incident just made her wrist 
 
            hurt more that day than usual (Tran., 52).  However, she had 
 
            already made an appointment with Dr. Poe to examine her 
 
            hands and arms after the first surgeries because the pain 
 
            and discomfort had returned again even prior to the slipping 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            injury (Tran., p. 110).  Claimant testified that, after the 
 
            first two surgeries it was better at first but then it 
 
            became as bad as it was prior to the first right and left 
 
            carpal tunnel surgeries and that both of her wrists and arms 
 
            were affected (Tran., pp. 50, 86, 100, and Ex. B., p. 15).  
 
            
 
                 Claimant testified, "It was the same.  It would wake me 
 
            up in the night the same as it did before.  My hands would 
 
            be numb.  My wrists would hurt.  It was very difficult to 
 
            hold on to anything.  I would drop things all the time." 
 
            (Tran., p. 51).  
 
            
 
                 Claimant further testified that she made the 
 
            appointment to see Dr. Poe about a week before November 5, 
 
            1990 (Tran., p. 51).  
 
            
 
                 Claimant testified that she told Dr. Poe about slipping 
 
            on the grease and catching herself with her hand (Tran., pp. 
 
            60 & 112).  Apparently, Dr. Poe did not think that the 
 
            slipping on the grease incident was significant because it 
 
            is not shown anywhere in any of his medical records (Ex. 
 
            G-1, pp. 1-20).  The report of the treating physician for 
 
            November 6, 1990 does not support the allegation of a 
 
            separate injury from slipping on grease.  On the contrary, 
 
            it supports claimant's contentions that she saw Dr. Poe for 
 
            continuation and recurrence of her long-standing bilateral 
 
            carpal tunnel problems.  
 
            
 
                 The office note of Dr. Poe for November 6, 1990, reads 
 
            as follows "Sharane Greenlee -- Pain free and back to full 
 
            duty until the past eight weeks.  She has gradually had 
 
            recurrence of all of her carpal tunnel symptoms.  Her work 
 
            involves repetitive clipping, moving pots and pans, 
 
            scooping, etc." (Ex. G-1, p. 9).  Thus, the unequivocal 
 
            evidence is that Dr. Poe makes no mention of a slipping 
 
            incident on November 5, 1990.  On November 6, 1990, he does 
 
            state that claimant has had a recurrence of all of her 
 
            carpal tunnel symptoms.  
 
            
 
                 After a recurrence, on January 21, 1991, Dr. Poe 
 
            continued to diagnose (1) bilateral carpal tunnel syndrome 
 
            and (2) repetitive work and cumulative trauma syndrome (Ex. 
 
            G-1, p. 8).  On March 25, 1991, he recorded, "Recurrent 
 
            bilateral carpal tunnel syndrome." (Ex. G-1, p. 7).  
 
            
 
                 Dr. Nakhasi performed a second nerve conduction study 
 
            and a electromyography again on January 16, 1991.  The tests 
 
            showed, "1) MILD CARPAL TUNNEL SYNDROME, BILATERAL.  
 
            (RECURRENT CARPAL TUNNEL SYNDROME BY HISTORY)  2) THE 
 
            LATENCIES ARE NEARLY THE SAME WHEN COMPARED TO NOVEMBER 
 
            1989." (Ex. G-4, p. 2).  Thus, claimant's testimony that her 
 
            hands and wrists were as bad as they were prior to the first 
 
            two surgeries is corroborated by the objective nerve 
 
            conduction and electromyography study of Dr. Nakhasi.  
 
            
 
                 Dr. Nakhasi wrote to Dr. Poe on January 29, 1991, that 
 
            claimant had a history of bilateral hand numbness and 
 
            tingling beginning in September of 1990.  He related that 
 
            his EMG and nerve conduction studies showed evidence of mild 
 
            bilateral carpal tunnel syndrome again (Ex. G-4, p. 1).
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 At the time of claimant's final office visit to Dr. 
 
            Poe, on October 2, 1991, when the doctor gave an impairment 
 
            rating, Dr. Poe recorded, "She still complains of numbness 
 
            in the median nerve distribution in both hands," (Ex. G-1, 
 
            p. 5).  
 
            
 
                 Thus, all of the evidence, (claimant's testimony and 
 
            all of the medical evidence) support only one conclusion, to 
 
            wit, that claimant suffered only one injury, bilateral 
 
            carpal tunnel syndrome, originating in 1986 and continuing 
 
            through four surgeries until the time of the hearing.  There 
 
            is no medical evidence of a separate injury on November 5, 
 
            1990.  There is no evidence of slipping on grease and 
 
            catching herself and jamming her right wrist had anything to 
 
            do with the treatment she received from any of the doctors.  
 
            On the contrary, Dr. Poe unequivocally stated on November 6, 
 
            1990, "She has gradually had recurrence of all of her carpal 
 
            tunnel symptoms." (Ex. G-1, p. 9).  Likewise, there is no 
 
            evidence other than the evidence that both hands and wrists 
 
            became symptomatic at the same time pursuant to claimant's 
 
            testimony.  This gives claimant the weight of the evidence 
 
            of a valid claim which is to be compensated on the basis of 
 
            500 weeks pursuant to Iowa Code section 85.34(2)(s).  
 
            
 
                 The industrial commissioner has determined that the 
 
            loss of two scheduled members simultaneously is a loss from 
 
            a single accident under Iowa Code section 85.34(2)(s).  
 
            Shank v. Mercy Hospital Medical Center, File No. 719627 
 
            (Appeal Decn. filed August 28, 1989).
 
            
 
                 More specifically, the industrial commissioner has 
 
            determined that bilateral carpal, cubital and ulnar tunnel 
 
            syndrome constitutes the loss of two scheduled members as a 
 
            result of a single gradual injury process and that the 
 
            disability is to be compensated as a single accident under 
 
            Iowa Code section 85.34(2)(s).  Larry Palmer v. Iowa Power, 
 
            Inc., File No. 941807 (Appeal Decn. May 25, 1993); Brundige 
 
            v. Cedar Rapids Meats, Inc., File 888708 (Appeal Decn. May 
 
            18, 1993); Daniel Fichter v. Griffin Pipe Products, File No. 
 
            941434 (Appeal Decn. filed April 29, 1993); Torgerson v. 
 
            Webster City Custom Meats, File No. 863533 (Appeal Decn. 
 
            1992) (Affirmed by the district court and appealed to the 
 
            supreme court on August 31, 1993); Johnson v. George A. 
 
            Hormel and Company, File Nos. 782796 and 7927933 (Appeal 
 
            Decn. June 21, 1988). 
 
            
 
                 Even more specifically, the industrial commissioner has 
 
            determined that bilateral carpal tunnel constituted a single 
 
            accident when the symptoms to both hands occurred at the 
 
            same time and were diagnosed on the first doctor appointment 
 
            even though employer submitted two first reports of injury, 
 
            two claim files were setup , two separate claims were 
 
            processed, two separate petitions were filed and the two 
 
            different surgeries occurred approximately a year apart.  
 
            Himschoot v. Montezuma Manufacturing, File Nos. 672778 and 
 
            738235 (Appeal Decn. April 15, 1988).  The decision in 
 
            Himschoot applies directly to the facts of this case in 
 
            many respects.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 In Himschoot, permanent partial disability benefits 
 
            were awarded for functional impairment as a single accident 
 
            based upon 500 weeks as prescribed by section 85.34(2)(s) by 
 
            converting and combining values using the Guides to 
 
            Evaluation of Permanent Impairment published by the American 
 
            Medical Association.  Simbro v. DeLong's Sportswear, 332 
 
            N.W.2d 886 (Iowa 1983).  (Himschoot was affirmed by the 
 
            court of appeals but that decision cannot be cited as 
 
            precedent because it is an unpublished decision.  Himschoot 
 
            v. Montezuma Manufacturing, 458 N.W. 2d 875 (Iowa, 1990).  
 
            Nevertheless, Himschoot has been agency precedent ever since 
 
            the date of its decision on April 15, 1988, based on the 
 
            decision of the industrial commissioner, which affirmed the 
 
            deputy industrial commissioner, on the points of law for 
 
            which it is now cited.  Himschoot is based on Simbro and has 
 
            solid foundation in the Simbro case. 
 
            
 
                 In Simbro, claimant had developed a compression of the 
 
            ulnar nerve in both wrists in her job as a material cutter 
 
            to make school and award jackets.  This job required heavy 
 
            lifting and the use of heavy cutting instruments.  The 
 
            Supreme Court stated, "In this appeal we hold that workers' 
 
            compensation benefits for permanent partial disability of 
 
            two members caused by a single accident is a scheduled 
 
            benefit."  Thus, the Supreme Court had no difficulty finding 
 
            a "single accident" in a cumulative trauma, repetitive 
 
            injury case.
 
            
 
                 Even prior to Brundige, cited above, bilateral carpal 
 
            tunnel syndromes were also determined to be a single 
 
            accident pursuant to Iowa Code section 85.34(2)(s) when 
 
            bilateral repetitive injury symptoms or complaints occurred 
 
            a few months apart in point of time, but subsequently 
 
            developed and were treated as a bilateral problem.  Jones v. 
 
            Lamoni Products, File No. 800310 filed May 29, 1991; 
 
            Kebernik v. Thatcher Plastic Packaging, File No. 704973 
 
            (Arb. Dec., December 22, 1988).  
 
            
 
                 The Iowa Supreme Court has defined "injury" very 
 
            broadly.  Almquist v. Shenandosh Nurseries, Inc., 218 Iowa 
 
            724, 732, 254 N.W. 35, 39 (1934); Lawyer and Higgs, Iowa 
 
            Workers' Compensation Law and Practice, section 4-1, page 
 
            19.
 
            
 
                 An accident is not required.  Olson v. Goodyear Serv. 
 
            Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  
 
            Proof of a special incident or unusual occurrence is not 
 
            required.  Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 159 
 
            (1949).  A personal injury may develop gradually over an 
 
            extended period of time.  Black v. Creston Auto Co., 255 
 
            Iowa 671, 281 N.W. 189 (1938).  Cumulative injuries such as 
 
            this one are recognized in Iowa in situations where the 
 
            disability comes on gradually and the compensable injury 
 
            occurs later.  Repetitive activity has been determined to be 
 
            a valid cause of an injury.  McKeever Custom Cabinets v. 
 
            Smith, 379 N.W.2d 368 (Iowa 1985).
 
            
 
                 Even though the Supreme Court of Iowa determined in 
 
            McKeever Custom Cabinets, 379 N.W.2d 368, that the injury 
 
            date was the date when pain or disability prevented the 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            employee from continuing to work, they later expanded the 
 
            determination of the possible injury date to any date 
 
            supported by the evidence and granted the industrial 
 
            commissioner substantial latitude in making this 
 
            determination.  Oscar Mayer Foods Corp. v. Tasler, 483 
 
            N.W.2d 824 (Iowa 1992).  
 
            
 
                 It is determined from the extensive evidence summarized 
 
            above that claimant's work as a second cook and food server 
 
            for employer was the cause of her bilateral carpal tunnel 
 
            syndrome.
 
            
 
                 It is determined that the injury date in this case is 
 
            November 6, 1989, which is the date that Dr. Poe first took 
 
            claimant off work because of this bilateral cumulative 
 
            injury.   Oscar Mayer Foods Corp., 483 N.W.2d 824 (Iowa 
 
            1992); McKeever Custom Cabinets, 379 N.W.2d 368 (Iowa 1985).  
 
            
 
                 It is further determined that claimant has sustained 
 
            only one cumulative injury which occurred on November 6, 
 
            1989, which arose out of and in the course of her employment 
 
            with employer.
 
            
 
                 It is further determined that claimant did not sustain 
 
            a separate and distinct injury to her right wrist on 
 
            November 5, 1990.  
 
            
 
                 It is further determined that claimant has sustained an 
 
            injury to both of her hands and both of her arms caused by a 
 
            single accident pursuant to Iowa Code section 85.34(2)(s).  
 
            
 
                causal connection-entitlement-temporary disability
 
            
 
                 The evidence summarized above establishes that this 
 
            injury was the cause of claimant's time off work after the 
 
            first two surgeries and after the second two surgeries.  
 
            There is no suggestion of any other cause for this time off 
 
            work in the record.
 
            
 
                 With respect to the first period of time off work 
 
            following the first two surgeries the parties stipulated 
 
            that claimant was off work from November 6, 1989 to March 5, 
 
            1990, a period of 17 weeks.  The parties further stipulated 
 
            that this time off work was caused by the injury of November 
 
            6, 1989 and that claimant was entitled to healing period 
 
            benefits for this period of time.  
 
            
 
                 The evidence supports this stipulation.  Dr. Poe took 
 
            claimant off work on November 6, 1989 (Ex. G-1, pp. 3, 4, & 
 
            19; Ex. C, pp. 28 & 43).  Dr. Poe did not return claimant to 
 
            work for regular duty until March 5, 1990 (Ex. G-1, pp. 9 & 
 
            20; Ex. C, p. 49).  Claimant is entitled to healing period 
 
            benefits for this period of time because all three of the 
 
            physicians who evaluated claimant found some percentage of 
 
            permanent impairment.  Iowa Code section 85.34(1).  
 
            
 
                 In spite of the fact that the evidence established that 
 
            claimant is entitled to healing period benefits for this 
 
            period of time, and in spite of the fact that defendants 
 
            stipulated on the hearing report that the injury was the 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            cause of temporary disability and that claimant is entitled 
 
            to benefits for this period of time, nevertheless, 
 
            defendants had not paid healing period benefits to the 
 
            claimant for this period of time as of the date of the 
 
            hearing.  Defendants have offered no evidence and have not 
 
            made any contention to show that they had reasonable or 
 
            probable cause or excuse for not commencing these benefits 
 
            when they were due on November 6, 1989.  However, since 
 
            penalty benefits were not asserted by claimant and penalty 
 
            benefits were not designated as a hearing issue in this 
 
            case, then no determination is made as to whether claimant 
 
            is or is not entitled to penalty benefits in this case 
 
            pursuant to Iowa Code section 86.13(4).
 
            
 
                 With respect to the second period of time that claimant 
 
            was off work following the second two surgeries, Dr. Poe 
 
            took claimant off work again on November 6, 1990 (Ex. G-1, 
 
            pp. 9 & 19; Ex. C, p. 43).  He returned claimant to work on 
 
            regular duty on January 8, 1992 (Ex. C, p. 158).  This is a 
 
            period of 61.143 weeks.  Wherefore, it is determined that 
 
            claimant is entitled to a total of 78.143 weeks of healing 
 
            period benefits for the foregoing periods (17 weeks plus 
 
            61.143 weeks equals 78.143 weeks).  
 
            
 
                CAUSAL CONNECTION-ENTITLEMENT-PERMANENT DISABILITY
 
            
 
                 Claimant testified that after the first two surgeries 
 
            she was better at first but then began to have intermittent 
 
            bilateral problems after her return to work on March 5, 1990 
 
            (Tran., p. 86).  According to Dr. Poe claimant had a 
 
            recurrence of her same symptoms on August 6, 1990 (Ex. G-1, 
 
            p. 9).  At that time he stated, "I do not believe that this 
 
            woman would ever be able to return to her old job." (Ex. 
 
            G-1, p. 9).  According to his office notes on December 4, 
 
            1990 and January 21, 1991, claimant continued to have 
 
            bilateral problems caused by cumulative trauma which was 
 
            caused by repetitive work (Ex. G-1, p. 8).  On February 20, 
 
            1991, Dr. Poe recorded that claimant had failed carpal 
 
            tunnel surgery with recurrence secondary to repetitive 
 
            trauma (Ex. G-1, p. 7).  On March 25, 1991, he suggested 
 
            that claimant be placed on a permanent light duty status 
 
            (Ex. G-1, p. 7).
 
            
 
                 On May 10, 1991, after the second right carpal tunnel 
 
            surgery which took place on April 30, 1991, Dr. Poe stated 
 
            that claimant continued to have carpal tunnel aggravated by 
 
            repetitive gripping at work.  He recommended rehabilitation 
 
            and then returning claimant to a job that does not involve 
 
            repetitive heavy gripping (Ex. G-1, p. 6).  
 
            
 
                 On July 10, 1991, Dr. Poe rated claimant's right hand 
 
            at 2.5 percent impairment due to reduced grip strength and 
 
            loss of sensation after her two surgeries on the right.  He 
 
            also found that she had a 50 percent loss of grip strength 
 
            on the left and recommended the second surgery on the left 
 
            hand which he performed on July 23, 1991 (Ex. G-1, p. 6).  
 
            After that surgery on September 5, 1991, Dr. Poe recorded 
 
            that claimant still had numbness in ulnar and radial 
 
            distribution and that she still had diminished grip strength 
 
            of 50 percent.  
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 On October 2, 1991, the final entry in his office notes 
 
            Dr. Poe found, 
 
            
 
                 She still complains of numbness in the median 
 
                 nerve distribution in both hands.  Her grip 
 
                 strength is diminished 50 %.  ... I believe that 
 
                 she has reached the end of her healing period, 
 
                 that she is on a permanent light duty status and 
 
                 that she could be assigned a permanent disability 
 
                 rating in the range of 2.5% to the right hand.  I 
 
                 would assign a similar disability to her left 
 
                 side." (Ex. G-1, p. 5).
 
            
 
                 It is presumed that Dr. Poe meant impairment when he 
 
            used the term disability.  This opinion is supported by one 
 
            of the opposing examiners, Arnold Delbridge, M.D., in his 
 
            deposition testimony (Ex. F, p. 14).  Physicians and others, 
 
            even the Supreme Court of the State of Iowa, sometimes use 
 
            the term disability when they mean impairment.  Olson v. 
 
            Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
            (1963); Beyer v. Iowa Beef Processors, Inc., File No. 759698 
 
            filed December 3, 1987.
 
            
 
                 As to causation, Dr. Poe, the treating physician and 
 
            four time operating surgeon, stated numerous times in the 
 
            quotes above that the condition for which he treated 
 
            claimant was because of cumulative trauma and repetitive 
 
            gripping at work (Ex. G-1, pp. 6-8).  
 
            
 
                 As to impairment, Dr. Poe did not say whether he used 
 
            (1) the Guides to the Evaluation of Permanent Impairment 
 
            published by the American Medical Association, (2) the 
 
            Orthopedic Surgeons' Guide (3), some other guide or (4) no 
 
            guide at all.  He did not cite any authoritative resource 
 
            for his impairment rating.  
 
            
 
                 No curriculum vitae was submitted for Dr. Poe.
 
            
 
                 It is noted that his numerical impairment rating of 2.5 
 
            percent appears to be low when compared to the fact that he 
 
            found claimant's grip strength was diminished 50 percent and 
 
            that she should be placed on permanent light duty status.  
 
            
 
                 Using the Guides to the Evaluation of Permanent 
 
            Impairment, published by the American Medical Association, 
 
            Third Edition (revised) 2.5 percent of the hand converts to 
 
            2.5 percent of the upper extremity and 2.5 of the upper 
 
            extremity converts to 1.5 percent of the whole person 
 
            (Tables 2 & 3, p. 16).  One point five percent of the whole 
 
            person for each arm combines to 2.5 percent of the whole 
 
            person (combined values chart, p. 254).  
 
            
 
                 Defendants obtained an independent evaluation from John 
 
            Milner-Brage, M.D.,.  No curriculum vitae was submitted for 
 
            him but his letterhead indicates that he is a Diplomate of 
 
            the American Board of Electrodiagnostic Medicine and also a 
 
            Diplomate of the American Board of Physical Medicine and 
 
            Rehabilitation.  The date of his examination is not given 
 
            but he reported on July 7, 1992 (Ex. G-3, pp. 9-12).
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Milner-Brage reported that claimant told him that 
 
            she had pain and loss of feeling in both hands and that she 
 
            dropped things.  Dr. Milner-Brage performed nerve conduction 
 
            studies and a electromyographic test.  These studies 
 
            resulted in these conclusions, "ELECTRODIAGNOSTIC SUMMARY:  
 
            Nerve conduction studies reveal prolonged median nerve 
 
            distal motor and sensory latencies bilaterally.  These 
 
            latencies were improved since the last study performed by 
 
            Dr. Nakhasi on January 16, 1991.  The EMG is normal.  
 
            
 
                 ELECTRODIAGNOSTIC IMPRESSION:  Mild bilateral median 
 
            neuropathy at the wrists." (Ex. G-3, p. 11).
 
            
 
                 Thus, even after four surgeries claimant still suffered 
 
            from mild bilateral median neuropathy at the wrists 
 
            according to defendants own evaluator who based his opinion 
 
            on the objective findings of nerve conduction and 
 
            electromyographic studies.
 
            
 
                 Dr. Milner-Brage attributes these residuals to carpal 
 
            tunnel.  The only carpal tunnel claimant has ever 
 
            experienced according to the record is this injury of 
 
            November 6, 1989.  Thus, the medical report of Dr. 
 
            Milner-Brage also establishes that this injury is the cause 
 
            of claimant's permanent impairment.  This evaluator further 
 
            stated, "Since there continues to be mild abnormalities on 
 
            electrical testing, one can assume that the patient has a 
 
            permanent residual impairment at the median nerve." (Ex. 
 
            G-3, p. 12).
 
            
 
                 Dr. Milner-Brage correctly converted and combined his 
 
            ratings to arrive at a 4 percent permanent impairment to the 
 
            body as a whole.  Using his own words he stated:  
 
            
 
                 The combination of electrodiagnostic findings and 
 
                 clinical sensory testing suggests that there is 
 
                 only a very minimal residual impairment.  The 
 
                 impairment consists of pain on gripping as well as 
 
                 some loss of fine motor control.  This translates 
 
                 into a 4% impairment at the upper extremity or a 
 
                 2% impairment of the whole person on each side.  
 
                 Combining both sides this is the equivalent of a 
 
                 4% impairment of the whole person.  (Ex. G-3, p. 
 
                 12).
 
            
 
                 With respect to causal connection and restrictions Dr. 
 
            Milner-Brage stated:
 
            
 
                 These median neuropathies were originally due to 
 
                 the gripping activities carried out while she was 
 
                 a cook in the Cedar Falls Schools.  The minimal 
 
                 residual impairment should not limit the patient's 
 
                 use of her hands.  Since she has had carpal tunnel 
 
                 release, full gripping can now be carried out 
 
                 without any fear of further injury to the nerve.  
 
                 ... I would not apply any restrictions to this 
 
                 patient's use of her hands since the impairment is 
 
                 so minimal. (Ex. G-12, p. 12).
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 Dr. Milner-Brage gave a good detailed explanation of 
 
            how he arrived at his figures in a letter dated September 
 
            28, 1992 and another letter dated February 11, 1993 (Ex. 
 
            G-3, pp. 1-8).  He also acknowledged that he did not use a 
 
            dynamometer to asses claimant's grip strength but rather he 
 
            had the patient squeeze his fingers briefly (Ex. G-3, p. 5).
 
            
 
                 Dr. Milner-Brage stated that he used the Guides to 
 
            Evaluation of Permanent Impairment, Table 11 on page 42 to 
 
            determine claimant's pain sensitivity and motor deficit (Ex. 
 
            G-3, p. 3).  
 
            
 
                 Claimant was independently evaluated by a physician 
 
            selected by claimant's attorney, Arnold Delbridge, M.D., on 
 
            July 14, 1992.  Dr. Delbridge reported on August 26, 1992 
 
            (Ex. G-2, pp. 1 & 2).  He noted that claimant had pains on 
 
            extremes of dorsiflexion and some loss of grip strength.  
 
            Dr. Delbridge made the following evaluation, "As a result of 
 
            her carpal tunnel problems on both hands, and her subsequent 
 
            sequelae, she has a 10% impairment of the left upper 
 
            extremity and a 10% impairment of the right upper 
 
            extremity." (Ex. G-2, p. 2).  
 
            
 
                 There is no curriculum vitae for Dr. Delbridge, but in 
 
            his deposition given on January 19, 1993, he stated that he 
 
            had been licensed to practice in Iowa since 1975, he has 
 
            been board certified in orthopedic surgery since 1977, and 
 
            that he has a sub-speciality in hand surgery which is not 
 
            common to most orthopedic surgeons (Ex. F, pp. 4 & 5).  Dr. 
 
            Delbridge had examined the records of Dr. Poe, Dr. Nakhasi 
 
            and Dr. Milner-Brage at the time of his evaluation (Ex. F, 
 
            p. 6).  He evaluated claimant on her work history as a 
 
            second cook and food server for employer.  
 
            
 
                 Dr. Delbridge said he did not include the extra space 
 
            between the navicular bone and the lunate bone because it 
 
            was not a carpal tunnel disability (Ex. F, p. 7).  He also 
 
            stated that he did not include the pain at the base of her 
 
            thumb because that was not carpal tunnel (Ex. F, p. 18). 
 
            
 
                 Dr. Delbridge concluded after reviewing her medical 
 
            history, looking at her x-rays and personally examining 
 
            claimant that she had sustained a 10 percent permanent 
 
            impairment to each of her upper extremities using Table 20 
 
            and 21 of the Guides of Evaluation of Permanent Impairment 
 
            in the Third Edition (revised), at page 53, based on the 
 
            fact that claimant was a female, age 52, and based on her 
 
            loss of grip strength (Ex. F, pp. 7 & 8).  
 
            
 
                 The doctor said that claimant's loss was primarily a 
 
            loss of power grip and that other forms of measurement in 
 
            the Guide did not take that into account.  Therefore, he 
 
            said it was necessary to consider grip strength in order to 
 
            fairly evaluate claimant (Ex. F, p. 10).  Dr. Delbridge 
 
            added that the 10 percent of each upper extremity converted 
 
            to 6 percent of the whole person and that combined to 12 
 
            percent to the body as a whole (Ex. F, p. 12).  He repeated 
 
            that it was necessary to use Table 20 and 21 because loss of 
 
            grip strength was not taken into account otherwise (Ex. F, 
 
            p. 13).
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
                 It is further noted that Dr. Delbridge measured the 
 
            loss of grip strength with a dynamometer, which he said was 
 
            standard practice, especially assessing the value of grip 
 
            strength.  This has been his practice for 12 or 15 years 
 
            (Ex. F, p. 33).  He added that most of the doctors that he 
 
            sees doing impairment ratings use grip meters in assessing 
 
            upper extremity values (Ex. F, p. 33).  Dr. Milner-Brage 
 
            admitted that he did not use a dynamometer but merely had 
 
            claimant squeeze some of his fingers briefly.  Dr. Delbridge 
 
            said that the trouble with this procedure is being able to 
 
            "quantitate" the result (Ex. F, p. 34). 
 
            
 
                 Thus, by way of summarization the impairment ratings of 
 
            the three evaluators are as follows:  (1) Dr. Poe, the 
 
            treating physician, 2.5 percent whole body impairment, (2) 
 
            Dr. Milner-Brage, defendants' independent evaluator, 4 
 
            percent whole body impairment, and (3) Dr. Delbridge, 
 
            claimant's independent evaluator 12 percent whole body 
 
            impairment.  
 
            
 
                 It should be noted that all three physicians agreed 
 
            that claimant had a loss of grip strength in both hands and 
 
            arms.  Dr. Delbridge testified that grip is primarily in the 
 
            hands, but some of grip is determined by the forearms.  He 
 
            said, "It's primarily a function of the hand and forearm.  
 
            There's a little arm involved in it, but not much.  Most of 
 
            it is forearm and hand.  Carpal tunnel release is noted to 
 
            decrease grip strength considerably." (Ex. F, p. 30).  At 
 
            another point Dr. Delbridge stated that, "The function 
 
            that's lost is a combination of hand and forearm primarily." 
 
            (Ex. F, p. 31).  
 
            
 
                 It is the task of physicians to determine impairment 
 
            ratings.  Impairment ratings are important criteria in the 
 
            evaluation of scheduled member injuries.  Rule 343 IAC 2.4 
 
            provides that impairment ratings made pursuant to the Guides 
 
            to the Evaluation of Permanent Impairment can have the 
 
            effect of prima facie evidence of permanent impairment.  All 
 
            impairment ratings are weighed in the determination of 
 
            scheduled member permanent disability.  Although the 
 
            industrial commissioner is obligated to give consideration 
 
            to all of the impairment ratings he is not obligated, 
 
            restricted or limited to making a scheduled member award in 
 
            the same amount as one of the impairment ratings.  
 
            
 
                 The task of the industrial commissioner is to determine 
 
            "loss" Iowa Code section 85.34(2)(s).  The term "loss" as 
 
            used in the Code has been determined to also mean "loss of 
 
            use" Moses v. National Union Coal Mining Co., 194 Iowa 819, 
 
            194 N.W. 746 (1921).  The purpose of determining loss of use 
 
            is because the industrial commissioner is charged with the 
 
            ultimate responsibility of determining permanent disability.  
 
            "Compensation for permanent disabilities ... shall be 
 
            payable to an employee as provided in this section."  Iowa 
 
            Code section 85.34 (first unnumbered paragraph).  The award 
 
            of the industrial commissioner should be upheld on appeal if 
 
            it is supported by substantial evidence.
 
            
 
                 As pointed out by Guides to the Evaluation of Permanent 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            Impairment, Chapter 1, Concepts of Impairment Evaluation, 
 
            paragraph 1.1 "As used in the Guides, "impairment" means an 
 
            alteration of an individual's health status that is assessed 
 
            by medical means, "disability," which is assessed by 
 
            nonmedical means, is an alteration of an individual's 
 
            capacity to meet personal, social, or occupational demands 
 
            or statutory or regulatory requirements."  Thus, doctors 
 
            determine impairment, the industrial commissioner determines 
 
            loss or loss of use and permanent disability taking into 
 
            consideration the impairment ratings of the physicians.
 
            
 
                 The impairment rating with the greatest weight in this 
 
            case is the determination of Dr. Delbridge because he is a 
 
            board certified orthopedic surgeon with over 15 years of 
 
            experience and a sub-speciality in hand surgery.  There is 
 
            no curriculum vitae for Dr. Poe.  All we know is that he is 
 
            an orthopedic surgeon retained by defendants.  Dr. 
 
            Milner-Brage is a physical medicine doctor and deals 
 
            primarily in physical measurements and rehabilitation.  His 
 
            other qualifications are not known because there is no 
 
            curriculum vitae for him.  A doctor's experience, expertise 
 
            and board certification may accord his testimony greater 
 
            weight.  Reiland v. Palco, Inc., Thirty-second Biennial 
 
            Report of the Industrial Commissioner 56 (1975); Dickey v. 
 
            ITT Continental Baking Co., Thirty-fourth Biennial Report of 
 
            the Industrial Commissioner 89 (1979).  Thus, the long 
 
            experience, expertise and board certification of Dr. 
 
            Delbridge is preferred over the other physicians in this 
 
            case.  Likewise, it should be added that his evaluation 
 
            seems to be the most realistic and comports best with all of 
 
            the other evidence in the case.  Rockwell Graphics Systems, 
 
            Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).  The other 
 
            physicians' ratings have some deficiencies which will be 
 
            discussed.
 
            
 
                 In the determination of either loss or loss of use and 
 
            permanent disability the industrial commissioner can 
 
            consider any evidence so long as earning capacity is not 
 
            considered Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 
 
            (1936).  
 
            
 
                 Likewise, the industrial commissioner may take into 
 
            consideration the agency's experience, technical competence 
 
            and specialized knowledge in the evaluation of the evidence.  
 
            Iowa Administrative Procedure Act 17A.14(5).  
 
            
 
                 Dr. Poe's 2.5 impairment rating would appear to be 
 
            inconsistently low when considered with his own remarks that 
 
            claimant had a 50 percent loss of grip strength and should 
 
            be placed on permanent light duty.  Dr. Delbridge commented 
 
            on this very point.  Dr. Delbridge stated about Dr. Poe's 
 
            rating, "He does mention, however, light-duty status, which 
 
            would be disability to a certain extent." (Ex. F, p. 14).  
 
            
 
                 Dr. Delbridge testified that Dr. Poe said that 
 
            claimant's grip strength was diminished by 50 percent but he 
 
            could not find any evidence that he had incorporated the 
 
            grip strength into his impairment evaluation (Ex. F, pp. 14 
 
            & 15).  
 
            
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
                 The industrial commissioner may consider loss of grip 
 
            strength in the determination of loss of use and permanent 
 
            disability.  Likewise, the industrial commissioner may 
 
            consider the fact that claimant was placed on a permanent 
 
            light duty work status by her physician who bears some 
 
            responsibility for the success or failure of her treatment.  
 
            Both of these facts relate to claimant's physical loss of 
 
            use and physical permanent disability of her hands and arms.  
 
            These factors are not considered as industrial disability 
 
            factors bearing on  claimant's loss of earning capacity.  
 
            Soukup, 222 Iowa 272, 268 N.W. 598 (1936).  
 
            
 
                 Wherefore, based upon the foregoing evidence, it is 
 
            determined that claimant has sustained a 12 percent 
 
            permanent impairment to the body as a whole and a 12 percent 
 
            permanent loss of use and 12 percent permanent disability 
 
            and is entitled to 60 weeks of permanent partial disability 
 
            benefits pursuant to Iowa Code section 85.34 (2)(s).  This 
 
            determination of loss of use is consistent with the 
 
            permanent impairment evaluation of Dr. Delbridge of 12 
 
            percent impairment to the body as a whole.  The evaluation 
 
            of Dr. Delbridge is preferred over the evaluation of Dr. 
 
            Milner-Brage because Dr. Delbridge used a dynamometer and 
 
            Dr. Milner-Brage only had claimant squeeze his fingers 
 
            briefly.  Furthermore, the tables used by Dr. Milner-Brage 
 
            permit him to supply his own judgment at anywhere between 1 
 
            percent and 25 percent.
 
            
 
                 Defendants contended that claimant is able to bowl in 
 
            league bowling in two different leagues and introduced 
 
            extensive bowling records into evidence (Ex. E).  Claimant 
 
            testified that she only bowled at times when it was 
 
            recommended to her by Dr. Poe as physical therapy.  Dr. 
 
            Poe's records corroborate the testimony of claimant.  On 
 
            January 25, 1990, after the first two surgeries Dr. Poe gave 
 
            claimant permission to bowl (Ex. G-1, p. 9).  
 
            
 
                 Furthermore, it is one thing to bowl on a few occasions 
 
            a week as a recreational pursuit as compared to fast 
 
            repetitive motions using your hands and arms in your work 
 
            every day, three to five hours a day, five days a week, when 
 
            you have to perform or possibly lose your job and your 
 
            livelihood.  
 
            
 
                 It is entirely possible for claimant to be able to 
 
            bowl, with wrist splints as she testified, and still have 
 
            sustained a 12 percent permanent disability to her whole 
 
            person as determined above.  Claimant testified that the 
 
            doctor permitted her to bowl as a therapeutic measure with a 
 
            wrist brace immobilizer.  Claimant's testimony is 
 
            corroborated by Dr. Poe.  There was no medical evidence 
 
            introduced on the part of defendants that claimant's ability 
 
            to bowl was inconsistent with a 12 percent impairment to the 
 
            body as a whole or a 12 percent loss of use of her hands and 
 
            arms.  Either a 12 percent permanent impairment or 12 
 
            percent loss of use does not mean that claimant is totally 
 
            incapacitated or that she is not able to bowl six games a 
 
            week in two different leagues.  There is no medical evidence 
 
            or other evidence to show that claimant's ability to bowl is 
 
            inconsistent with a 12 percent body as a whole impairment or 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            a 12 percent loss of use as determined in this case.
 
            
 
                 With reference to agency expertise, it is not uncommon 
 
            for carpal tunnel surgery to result in a 5 or 10 percent 
 
            permanent impairment to the affected extremity.  In this 
 
            case, claimant received not one or two carpal tunnel 
 
            surgeries, but rather four carpal tunnel surgeries, and 
 
            still has residuals of median neuropathy, significant loss 
 
            of grip strength and the physical inability to continue to 
 
            perform the job of second cook.  These factors indicate that 
 
            a 12 percent impairment to the body as a whole and a 12 
 
            percent loss of use is an appropriate and reasonable 
 
            determination in this case.
 
            
 
                                      CREDIT
 
            
 
                 Defendants contend that they are entitled to a credit 
 
            for $1,163.19 of long-term disability benefits paid to 
 
            claimant from May 31, 1991 through January 12, 1992.
 
            
 
                 The burden of proof is upon defendants to prove 
 
            entitlement to the credit which they are asserting.  
 
            McKernan v. Morningside College, File No. 955069 filed 
 
            February 22, 1993.  A reading of section 85.38(2) shows that 
 
            there are three conditions which must be met before a credit 
 
            may be allowed:  (1) benefits must be received under a group 
 
            plan, (2) contributions to that plan must have been made by 
 
            employer and (3) the benefits should not have been paid if 
 
            workers' compensation benefits were received.  Dyvad v. 
 
            Southfield Care Center, File No. 736345 (Appeal Decn. 
 
            September 9, 1986); Hebensperger v. Motorola Communications 
 
            & Electronics, Inc., II Iowa Industrial Commissioner Report 
 
            187, 189 (1981); McKernan, File No. 955069 filed February 
 
            22, 1993; Erbe v. Iowa State Penitentiary, File No. 824057 
 
            filed July 10, 1991; Koch v. Land O'Lakes, File No. 883532 
 
            filed December 4, 1990; McDonough v. Dubuque Packing Co., 
 
            Vol. I no. 1, State of Iowa Industrial Commissioner 
 
            Decisions 152 (1984); Mai v. Olan Mills, Inc., I Iowa 
 
            Industrial Commissioner Report 222 (1980); 
 
            
 
                 Defendants did not sustain the burden of proof by 
 
            preponderance of the evidence that they are entitled to a 
 
            credit for two reasons (Tran., pp. 10 & 26).  
 
            
 
                 First, defendants did not prove that the long-term 
 
            disability plan was contributed to in whole or in part by 
 
            employer.  Nor did they obtain a stipulation that it was 
 
            contributed to in whole or in part by employer.  Borg v. 
 
            King of Clubs, Inc., File No. 881019 (Appeal Decn. August 
 
            23, 1990, wherein the Industrial Commissioner confirmed the 
 
            decision of the deputy which made this same finding).  
 
            
 
                 Secondly, defendants did not prove that the benefits 
 
            should not have been paid to claimant or that they had any 
 
            rights of recovery in the event that long-term disability 
 
            payments were made to claimant.  Iowa Code section 85.38(2) 
 
            provides "this section shall not apply to payments made 
 
            under any group health plan which would have been payable 
 
            even though there was an injury under this chapter ...".  
 
            
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
                 There is no showing either in defendants' exhibit 1 
 
            from the Principal Financial Group or claimant's exhibit 6 
 
            from the Principal Financial Group that claimant should not 
 
            have received long-term disability benefits in addition to 
 
            workers' compensation benefits.  The plan document itself is 
 
            the best evidence of what it provides.  Defendants did not 
 
            introduce into evidence the plan document which would prove 
 
            their entitlement to a credit.  George v. Dubuque Packing 
 
            Co., File No. 694775 filed April 21, 1987.  
 
            
 
                 Defendants' did not obtain a stipulation from claimant 
 
            that defendants were entitled to a credit.
 
            
 
                 Furthermore, it should be noted that even if defendants 
 
            had demonstrated (1) that they had contributed to the plan 
 
            and (2) that the plan document provided that claimant was 
 
            not to receive both long-term disability benefits and 
 
            workers' compensation benefits their case still would have 
 
            failed.  
 
            
 
                 Claimant testified that she did receive long-term 
 
            disability benefits in the amount of $50 per month.  She 
 
            applied for benefits in March of 1991, there was a waiting 
 
            period and the benefits began in May of 1991 (Tran., pp. 99, 
 
            100, 103 & 105).  Claimant estimated that she only received 
 
            about six months of benefits at the rate of $50 a month in 
 
            the total amount of $300 (Tran., p. 101).  The evidence 
 
            received during the hearing, in a Fax, from the Principal 
 
            Financial Group at the request of defendants with the 
 
            consent of claimant shows that claimant received benefits 
 
            totaling $1,163.19 from May 31, 1991 through January 12, 
 
            1992, under a group policy with Cedar Falls Community 
 
            School.  This would constitute 23 months of benefits (Tran., 
 
            p. 102), whereas claimant was only disabled during the 
 
            specifically stated period of time from May 31, 1991 through 
 
            January 12, 1992, for a period of seven months and 12 days.  
 
            Therefore it can be seen that even if defendants had met the 
 
            tests of contributions and an exclusionary clause in the 
 
            policy they, nevertheless, failed to establish the amount of 
 
            their entitlement to credit for permanent disability 
 
            benefits.
 
            
 
                 Wherefore, it is determined that claimant is not liable 
 
            for and defendants are not entitled to a credit for 
 
            nonoccupational group health plan benefits paid to claimant 
 
            prior to hearing pursuant to Iowa Code section 85.38(2).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 WHEREFORE, based upon the foregoing and following 
 
            principles of law these conclusions of law are made:
 
            
 
                 That claimant sustained the burden of proof by 
 
            preponderance of the evidence that her employment as a 
 
            second cook and food server for employer was the cause of 
 
            bilateral carpel tunnel syndrome which is further determined 
 
            to be one injury which occurred on November 6, 1989, that 
 
            arose out of and in the course of employment with employer.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824 
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            (Iowa 1992).
 
            
 
                 That claimant did not sustain separate and distinct 
 
            injuries on November 6, 1989 and November 5, 1990, but 
 
            rather claimant sustained only one cumulative injury caused 
 
            by a single accident which occurred on November 6, 1989 and 
 
            that claimant is entitled to benefits pursuant to Iowa Code 
 
            section 85.34(2)(s).  Himschoot v. Montezuma Manufacturing, 
 
            File Nos. 672778 and 738235 (Appeal Decn. April 15, 1988).  
 
            Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983).  
 
            
 
                 That the injury was the cause of both temporary and 
 
            permanent disability.   Bodish v. Fischer, Inc., 257 Iowa 
 
            516, 133 N.W.2d 867 (1965); Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.E.2d 607 (1945).
 
            
 
                 That claimant is entitled to 17 weeks of healing period 
 
            benefits for the period from November 6, 1989 to March 5, 
 
            1990 and an additional 61.143 weeks of healing period 
 
            benefits for the period from November 6, 1990 to January 8, 
 
            1992, for a combined entitlement of healing period benefits 
 
            of 78.143 weeks.  Iowa Code section 85.34(1).
 
            
 
                 That claimant is entitled to 60 weeks of permanent 
 
            partial disability benefits based upon a 12 percent 
 
            impairment to the whole person and a 12 percent loss of use 
 
            of her hands and arms and a 12 percent permanent disability 
 
            to her hands and arms.  Iowa code section 85.34 (first 
 
            unnumbered paragraph).  Iowa Code section 85.34(2)(s).  
 
            Moses v. National Union Coal Mining Co., 194 Iowa 819, 194 
 
            N.W. 746 (1921); Soukup v. Shores, 222 Iowa 272, 268 N.W. 
 
            598 (1936); Iowa Administrative Procedure Act 17A.14 (5).  
 
            
 
                 That defendants did not sustain the burden of proof by 
 
            preponderance of the evidence that they are entitled to a 
 
            credit for nonoccupational group health plan benefits paid 
 
            to claimant prior to hearing.  Iowa Code section 85.38(2).  
 
            Dyvad, File No. 736345 (Appeal Decn. September 9, 1986); 
 
            Hebensperger, II Iowa Industrial Commissioner Report 187, 
 
            189 (1981);
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 That defendants pay to claimant seventy-eight point one 
 
            four three (78.143) weeks of healing period benefits at the 
 
            stipulated rate of one hundred thirteen and 68/100 dollars 
 
            ($113.68) in a total amount of eight thousand eight hundred 
 
            and eighty-three and 30/100 dollars ($8,883.30) commencing 
 
            on November 6, 1989 but interrupted during the period from 
 
            March 5, 1990 to November 4, 1990 but commencing again on 
 
            November 5, 1990 to January 8, 1992.  
 
            
 
                 That defendants pay to claimant sixty (60) weeks of 
 
            permanent partial disability benefits at the rate of one 
 
            hundred thirteen and 68/100 dollars ($113.68) per week in 
 
            the total amount of six thousand eight hundred twenty and 
 
            80/100 dollars ($6,820.80) commencing on January 8, 1992.
 
            
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
                 That defendants are entitled to a credit for four point 
 
            seven five (4.75) weeks of workers' compensation benefits 
 
            paid to claimant prior to hearing at the rate of one hundred 
 
            thirty-two and 69/100 dollars ($132.69) as stipulated to by 
 
            the parties on the prehearing report.  
 
            
 
                 That all of these benefits are to be paid in a lump 
 
            sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the cost 
 
            of the transcript of hearing are charged to defendants 
 
            pursuant to Iowa Code sections 86.19(1) and 86.40 and Rule 
 
            343 IAC 4.33. 
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Rule 343 IAC 3.1
 
            
 
                 Signed and filed this ____ day of June, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 

 
            
 
            Page  21
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Robert L. Rausch
 
            Attorney at Law
 
            P.O. Box 905
 
            Waterloo, IA  50704
 
            
 
            Mr. Philip H. Dorff
 
            Attorney at Law
 
            Terrace Ctr., Ste. 111
 
            2700 Grand Ave.
 
            Des Moines, IA  50312
 
            
 
 
            
 
           
 
            
 
                   
 
            
 
                                       1101, 1108.50, 1401, 1402.20,                
 
                                       1402.30 2209, 51802, 51803, 
 
                                       51701
 
                                       Filed June 18, 1993
 
                                       Walter R. McManus 
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                       
 
            SHARANE D. GREENLEE,      
 
                       
 
                 Claimant,  
 
                       
 
            vs.        
 
                                                    File No. 934910
 
            CEDAR FALLS COMMUNITY SCHOOLS, 
 
                                                A R B I T R A T I O N
 
                 Employer,  
 
                                                    D E C I S I O N
 
            and        
 
                       
 
            EMPLOYERS MUTUAL COMPANIES,    
 
                       
 
                 Insurance Carrier,   
 
                 Defendants.     
 
            ___________________________________________________________
 
            
 
            1101, 1108.50, 1401, 1402.20, 1402.30, 2209
 
            
 
                 It was determined that claimant sustained only one 
 
            cumulative injury of bilateral carpal tunnel on the first 
 
            date that she was forced to quit work and that she did not 
 
            receive a separate and distinct injury on a later date which 
 
            was not the subject of this original notice and petition.  
 
            The medical evidence unequivocally supported claimant's 
 
            testimony and gave no support to defendants' contention of a 
 
            separate and distinct injury on a later date.  The decision 
 
            summarizes the position of the agency on section 85.34(2)(s) 
 
            cases with several cites of authority from the past to the 
 
            present.
 
            
 
            51802
 
            
 
                 Claimant was awarded healing period for two periods of 
 
            time each of which followed separate bilateral carpal tunnel 
 
            surgeries.
 
            
 
            51803
 
            
 
                 Impairment ratings were (1) 2.5 percent body as a whole 
 
            by the treating physician, (2) 4 percent body as a whole by 
 
            defendants' independent evaluator and (3) 12 percent body as 
 
            a whole by claimant's independent evaluator.  The decision 
 
            has considerable discussion about the qualifications of the 
 
            doctors, their method of rating and the use of the AMA 
 
            Guides.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 After bilateral carpal tunnel surgery on two different 
 
            occasions (four surgeries in all) claimant still had mild 
 
            median neuropathy established by electrodiagnostic studies 
 
            and a significant loss of grip strength verified by all 
 
            three doctors.  The impairment rating of claimant's 
 
            independent evaluator was found to be the superior rating 
 
            because of his qualifications, the method he used, his 
 
            explanation of his rating in a deposition, apparent 
 
            deficiencies in the ratings of the other doctors, and 
 
            because his rating seemed to be the most reliable and 
 
            comported best with all of the other evidence.
 
            
 
                 The decision finds that it is the task of physicians to 
 
            determine impairment.  It is the task of the industrial 
 
            commissioner to determine loss.  Iowa Code section 
 
            85.34(2)(s).  The term loss has been judicially determined 
 
            to include loss of use.  Moses v. National Union Coal Mining 
 
            Company.  Loss or loss of use are considerations in the 
 
            ultimate responsibility of the industrial commissioner which 
 
            is to determine permanent disability.  Iowa Code section 
 
            85.34 (first unnumbered paragraph).  
 
            
 
                 Although the industrial commissioner is obligated to 
 
            take into consideration all of the impairment ratings he is 
 
            not obligated, restricted or limited to making a scheduled 
 
            member award in the same amount as one of the impairment 
 
            ratings.  The industrial commissioner can consider any 
 
            factor so long as it is not an industrial disability factor.  
 
            Soukup v. Shores.  He is also privileged to use agency 
 
            expertise.  Iowa Administrative Procedure Act 17A.14(5).  
 
            His award should be upheld on review if it is supported by 
 
            substantial evidence.
 
            
 
                 In this case loss of grip strength and the fact that 
 
            claimant was foreclosed from performing her job as second 
 
            cook were taken into consideration as physical factors 
 
            tending to establish physical loss of use and physical 
 
            permanent disability and not as industrial disability 
 
            factors.
 
            
 
                 It was determined that claimant sustained a 12 percent 
 
            body as a whole loss of use pursuant to Iowa Code section 
 
            85.34(2)(s) and a 12 percent permanent disability pursuant 
 
            to Iowa Code section 85.34 (first unnumbered paragraph).
 
            
 
            51701
 
            
 
                 Defendants did not sustain the burden of proof by a 
 
            preponderance of the evidence that they were entitled to a 
 
            credit for income disability payments made to claimant 
 
            pursuant to a nonoccupational group health insurance policy 
 
            prior to hearing.  First of all, they did not prove that 
 
            they contributed to the plan.  Secondly, they did not prove 
 
            that the plan benefits would not have been payable to 
 
            claimant in addition to workers' compensation benefits.  The 
 
            best evidence that claimant is not entitled to both benefits 
 
            is the plan document.  Defendants did not place the plan 
 
            document in evidence.  The decision contains several cites 
 
            showing the agency precedent on this point.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Furthermore, defendants' did not prove the amount of 
 
            the credit to which they were entitled.  Claimant disputed 
 
            the amount of payments that she received and there was a 
 
            wide disparity in the contentions of the two parties.  The 
 
            other evidence favored claimant's contention.
 
            
 
 
         
 
         
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         PEGGY SLAWSON,                  :
 
                                         :
 
              Claimant,                  :
 
                                         :    File Nos. 1015026/1015025
 
         vs.                             :              1015024/1015023
 
                                         :               950764/934958
 
         HUMBOLDT CARE CENTER SOUTH,     :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         FIDELITY & CASUALTY INSURANCE   :
 
         COMPANY,                        :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
         
 
                                      ISSUES
 
         
 
         Claimant states the following issues on appeal:
 
         
 
         I.  An award of 5% is unreasonable when a worker losses 40 hours 
 
         of work per week and also has a nearly complete loss of access to 
 
         her past labor market.
 
         
 
         II.  The factual circumstances of the last three injury dates 
 
         alleged by claimant constitute adequate notice of compensable 
 
         events under the workers' compensation Act.
 
         
 
                                 FINDINGS OF FACT
 
         
 
         The findings of fact contained in the proposed agency decision 
 
         filed June 24, 1993 are adopted as final agency action.
 
         
 
                                CONCLUSIONS OF LAW
 
         The conclusions of law contained in the proposed agency decision 
 
         filed June 24, 1993 are adopted as set forth below.  Segments 
 
         designated by asterisks (*****) indicate portions of the language 
 
         from the proposed agency decision that have been intentionally 
 
         deleted and do not form a part of this final agency decision.  
 
         Segments designated by brackets ([ ]) indicate language that is 
 
         in addition to the language of the proposed agency decision.
 
         
 
              *****
 
         
 
              In the instant case, defendants raise the affirmative 
 
         defense of lack of notice under Iowa Code section 85.23.  
 
         Defendants bear the burden of proof with respect to the issue.  
 
         The party who will suffer a loss if an issue is not established 
 

 
         
 
         Page   2
 
         
 
         
 
         has the burden of proving that issue by a preponderance of the 
 
         evidence.  Iowa R. App. P. 14 (f).
 
         
 
              *****
 
         
 
              [Claimant has alleged six dates of injury.  Defendants have 
 
         stipulated to the first three dates of injury.  The disputed 
 
         injury dates are July 3, 1990; August 13, 1990; and May 14, 1991.
 
         
 
              The record shows that claimant did not suffer a traumatic 
 
         injury on July 3, 1990.  Claimant urges this as a date of injury 
 
         because on that date, Dr. Boulden imposed permanent restrictions 
 
         and indicated claimant could not return to work.
 
         
 
              The record also shows that claimant did not suffer a 
 
         traumatic injury on August 13, 1990.  Claimant urges this as a 
 
         date of injury because on that date, claimant was transferred 
 
         from her work as a nurse's aide to a cook, with a reduction of 
 
         hours.
 
         
 
              Finally, the record shows no traumatic injury to claimant 
 
         occurring on May 14, 1991.  Claimant urges this as a date of 
 
         injury as it represents the last day claimant worked for 
 
         employer.
 
         
 
              Clearly each of the above events is a consequence of one or 
 
         more of the three stipulated injuries.  Although under some 
 
         records, such as in a cumulative injury case, one or more of 
 
         these events might be used as a date of injury when a more 
 
         readily ascertainable date of injury is not available, under this 
 
         record the above three dates do not represent new injuries, but 
 
         rather consequences or manifestations of one or more of the 
 
         stipulated injuries.
 
         
 
              Defendants urge as a defense that they did not have notice 
 
         of the three alleged injuries.  Before the question of notice of 
 
         an injury can be analyzed, claimant must first carry her burden 
 
         to show an injury occurred.  Claimant has failed to carry her 
 
         burden to show that an injury occurred on July 3, 1990; August 
 
         13, 1990; or May 14, 1991.
 
         
 
              It is further found that even if claimant had established 
 
         injuries on these three dates, claimant's current disability is 
 
         not causally connected to any of those three dates, but rather is 
 
         causally connected to her June 14, 1990 injury.]
 
         
 
              The remaining issues deal with files numbered 934958, 950764 
 
         and 1015023.  The parties have stipulated that separate work 
 
         injuries have occurred on each of the three dates.  The parties 
 
         have stipulated that defendants have paid for all temporary or 
 
         healing period benefits which may be due to claimant.  The 
 
         parties have not agreed that the three work injuries have given 
 
         rise to any permanent condition.  Likewise, the parties dispute 
 
         the nature and extent of claimant's permanent condition, if any. 
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the 
 

 
         
 
         Page   3
 
         
 
          
 
         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 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).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which the employee is 
 
         fitted.  Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 
 
         N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  
 
         Impairment and disability are not synonymous.  The degree of 
 
         industrial disability can be much different than the degree of 
 
         impairment because industrial disability references to loss of 
 
         earning capacity and impairment references to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of the healing period; 
 
         the work experience of the employee prior to the injury and after 
 
         the injury and the potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Likewise, an employer's refusal to give any sort of work to an 
 
         impaired employee may justify an award of disability.  McSpadden 
 
         v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  These are 
 

 
         
 
         Page   4
 
         
 
         
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  Neither does a rating of 
 
         functional impairment directly correlate to a degree of 
 
         industrial disability to the body as a whole.  In other words, 
 
         there are no formulae which can be applied and then added up to 
 
         determine the degree of industrial disability.  It therefore 
 
         becomes necessary for the deputy or commissioner to draw upon 
 
         prior experience as well as general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 529 (App. March 26, 1985); 
 
         Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 654 (App. February 28, 1985).
 
         
 
              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.  Iowa Code section 85.34.
 
         
 
              It is overwhelmingly clear that claimant's low back 
 
         condition stems from her work injury on June 14, 1990.  This was 
 
         the last date she was capable of working as a nurse's aide, a 
 
         position she had held for a number of years.  It is true that 
 
         claimant first injured her back on November 5, 1989.  However, 
 
         her injury was only temporary and she was able to return to her 
 
         regular work duties without restrictions.  She worked without 
 
         incident for approximately six months.  She sustained no 
 
         permanent condition as a result of her work injury on November 5, 
 
         1989. 
 
         
 
              After the May 5, 1990 work injury, claimant was placed on 
 
         light duty.  She was assigned to the laundry department on a 
 
         temporary basis where she was assigned the task of folding 
 
         clothes.  She worked for two weeks, then she reinjured her back.  
 
         She was diagnosed as having a muscle spasm.  
 
         
 
              It is the June 14, 1990 injury which is the cause of 
 
         claimant's permanent condition.  It is recognized there is little 
 
         objective evidence to substantiate claimant's permanent 
 
         condition, but claimant is working pursuant to permanently 
 
         imposed restrictions which were imposed by her physician.  The 
 
         treating orthopedic surgeon, Dr. Boulden, has assessed a five 
 
         percent permanent impairment.  After the June 14, 1990 date, 
 
         claimant was unable to continue in her position as a nurse's 
 
         aide.  She was forced to consider another position in the care 
 
         facility.  She could no longer engage in bending and twisting.  
 
         Dr. Boulden assigned the following restrictions to claimant:   
 
         "No bending, lifting, twisting with her back.  Cooking job."  
 
         (Ex. p. 8)
 
         
 
              Several weeks later Dr. Boulden opined that the restrictions 
 
         would be permanent.  Claimant was then assigned to the position 
 
         of cook where she earned five cents less per hour than what she 
 

 
         
 
         Page   5
 
         
 
         
 
         had earned as a nurse's aide.  She also worked a few hours less 
 
         per week as a cook.  The actual number of hours is uncertain, as 
 
         claimant could not provide specific information for each week 
 
         that she had worked.  The position of cook involved no lifting of 
 
         patients.  It did involve standing, walking, stooping and lifting 
 
         of cooking utensils.  Claimant continued in that capacity until 
 
         May 15, 1991 when claimant determined she could no longer work as 
 
         a cook.
 
         
 
              After May 15, 1991, claimant secured full time employment at 
 
         Pillar House, a group home for the mentally disabled. *****  At 
 
         the time of the hearing, claimant was earning $4.83 per hour plus 
 
         she received health benefits.  The most she had ever earned while 
 
         in the employ of defendant was $4.40 per hour.  Tax records for 
 
         claimant show that in 1990 she earned $13,748.98.  In 1991 she 
 
         earned $13,297.61 and in 1992 claimant earned $14,166.95.  
 
         
 
              *****
 
         
 
              [Claimant was working two jobs prior to her back injuries.  
 
         Claimant worked approximately 36 hours per week for another 
 
         employer and essentially full time with defendant employer.  
 
         After her injuries, claimant had her hours with defendant 
 
         employer reduced when she assumed the cook position.  Claimant 
 
         later went to full-time status with the other employer.  
 
         Eventually claimant lost her position with defendant employer 
 
         completely.
 
         
 
              In assessing industrial disability, loss of earnings is but 
 
         one of many factors.  Claimant has lost substantial earnings, in 
 
         that prior to her back injuries, she worked approximately 76 
 
         hours per week and was paid an hourly wage.  Subsequent to her 
 
         injuries, she is working only 40 hours per week and has suffered 
 
         a loss of earnings thereby.
 
         
 
              Nevertheless, claimant is, after her injuries, working full 
 
         time as that term is commonly used.  The fact that a worker is 
 
         able to work full time after a work injury is also a factor of 
 
         industrial disability.  Neither factor is controlling and there 
 
         is no formula prescribing greater weight for one factor of 
 
         industrial disability over another.
 
         
 
              Claimant has a rating of five percent impairment of the body 
 
         as a whole.  Claimant has suffered a loss of earnings, but is 
 
         able to work full time.  Claimant was 48 years old and has a high 
 
         school education.  Claimant's work history is limited to manual 
 
         labor jobs such as a nurse's aide, which generally pay wages at 
 
         or near minimum wage.  Although claimant has lost earnings in 
 
         terms of the number of hours she works, her wages at her present 
 
         employment are roughly similar to her wages as a nurse's aide for 
 
         defendant employer.
 
         
 
              Based on these and all other appropriate factors for 
 
         determining industrial disability, claimant is determined to have 
 
         an industrial disability of 20 percent.]
 
         WHEREFORE, the decision of the deputy is affirmed and modified.
 
         
 

 
         
 
         Page   6
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That with respect to file numbered 934958, claimant takes 
 
         nothing further from these proceedings.
 
         
 
              That with respect to file numbered 950764, claimant takes 
 
         nothing further from these proceedings.
 
         
 
              That with respect to file numbered 1015024, claimant takes 
 
         nothing further from this proceeding.
 
         
 
              That with respect to file numbered 1015025, claimant takes 
 
         nothing further from this proceeding.
 
         
 
              That with respect to file numbered 1015026, claimant takes 
 
         nothing from this proceeding.
 
         
 
              That with respect to file numbered 1015023, defendants shall 
 
         pay unto claimant one hundred (100) weeks of permanent partial 
 
         disability benefits at the stipulated rate of one hundred 
 
         fourteen and 39/l00 dollars ($114.39) per week commencing on 
 
         August 17, 1990.
 
         
 
              That accrued benefits shall be paid in a lump sum together 
 
         with statutory interest at the rate of ten percent (10%) per year 
 
         pursuant to Iowa Code section 85.30, as amended.
 
         
 
              That defendants shall receive credit for all benefits 
 
         previously paid to claimant as a result of the work injuries.
 
         
 
              That defendants shall pay the costs of the actions pursuant 
 
         to rule 343 IAC 4.33, including transcription of the hearing.
 
         
 
              That defendants shall file a claim activity report as 
 
         requested by this division and pursuant to rule 343 IAC 3.1.
 
         
 
         
 
              Signed and filed this ____ day of November, 1993.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Channing L. Dutton
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th Street, Suite 500
 
         West Des Moines, Iowa 50265
 
         
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         Mr. Joseph S. Cortese, II
 
         Attorney at Law
 
         500 Liberty Building
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
            
 
 
 
 
 
                                         2201; 2401; 1803
 
                                         Filed November 30, 1993
 
                                         Byron K. Orton
 
           
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            PEGGY SLAWSON,                  :
 
                                            :
 
                 Claimant,                  :
 
                                            :    File Nos. 1015026/1015025
 
           vs.                              :               1015024/1015023
 
                                            :               950764/934958
 
            HUMBOLDT CARE CENTER SOUTH,     :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            FIDELITY & CASUALTY INSURANCE   :
 
            COMPANY,                        :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            2201; 2401
 
            Claimant filed six separate petitions.  Each petition 
 
            alleged a separate date of injury.  The parties stipulated 
 
            to three of the six injury dates.  Defendants raised the 
 
            affirmative defense of lack of notice of the injury within 
 
            90 days of the alleged injury dates.  The basis for the 
 
            three alleged injury dates in dispute were:  (1) the date 
 
            claimant received permanent restrictions from her doctor and 
 
            was told not to go back to her job; (2) the date claimant 
 
            was transferred from her job as a nurse's aide to a cook; 
 
            and (3) the last day claimant worked.
 
            It was held on appeal that the three alleged injury dates 
 
            were not separate injuries, but rather manifestations or 
 
            consequences of one or more of the three stipulated 
 
            injuries.  Under claimant's interpretation, an injury on one 
 
            date that results in leaving the job because of the injury 
 
            on another date results in two separate injuries.  This 
 
            argument was rejected.
 
            
 
            1803
 
            Claimant was awarded a 20 percent industrial disability 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            after she had sustained a low back injury.  The physician 
 
            opined that claimant had sustained a five percent 
 
            impairment.  There was little objective evidence to support 
 
            a finding of permanency.  However, the treating orthopedic 
 
            surgeon imposed permanent restrictions of no bending, 
 
            twisting or lifting.  Claimant worked two jobs at the time 
 
            of her injury, working full time at the job where she was 
 
            injured, and 36 hours per week at another job.  After her 
 
            injury, she worked 40 hours per week at the other job, and 
 
            eventually had to quit the first job due to her injury.  
 
            Held that her loss of her job represented a loss of earnings 
 
            and was a factor of industrial disability, but her ability 
 
            to hold full-time employment in another job even after her 
 
            injury was also a factor of industrial disability.  
 
            Claimant, 48, with high school education, five percent 
 
            impairment of the body as a whole, with work restrictions 
 
            and work history limited to manual, minimum wage jobs, was 
 
            awarded 20 percent industrial disability.
 
            
 
 
         
 
              
 
         
 
                  
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         PEGGY SLAWSON,                :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :    File Nos. 1015026; 1015025
 
                                       :              1015024; 1015023
 
         HUMBOLDT CARE CENTER SOUTH,   :               950764; 934958
 
                                       :
 
              Employer,                :      A R B I T R A T I O N
 
                                       :
 
         and                           :         D E C I S I O N
 
                                       :
 
         FIDELITY & CASUALTY INSURANCE :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              These are proceedings in arbitration upon the petitions of 
 
         claimant, Peggy Slawson, against her employer, Humboldt Care 
 
         Center South, and its insurance carrier, Fidelity and Casualty 
 
         Insurance Company, defendants.  The cases were heard on May 20, 
 
         1993 at the offices of Jones, Hoffman, Huber, et al in Des 
 
         Moines, Iowa.  The record consists of the testimony of claimant.  
 
         The record also consists of joint exhibits 1-10 and exhibit D.  
 
         In addition, the undersigned deputy industrial commissioner takes 
 
         administrative notice of the first reports of injury, with 
 
         respect to notice only, in files numbered 1015024, 1015025 and 
 
         1015026.
 
         
 
                                      ISSUES
 
         
 
              The issues to be determined are:  
 
         
 
              For file numbered 934958 (November 5, 1989):  1) whether 
 
         there is a causal connection between the work injury and any 
 
         permanent partial disability; and 2) the nature and extent, if 
 
         any, of permanent partial disability.
 
         
 
              For file numbered 950764 (May 7, 1990):  1) whether there is 
 
         a causal connection between the work injury and any permanent 
 
         partial disability; and 2) the nature and extent, if any, of 
 
         permanent partial disability.
 
         
 
              For file numbered 1015023 (June 14, 1990):  1) whether there 
 
         is a causal connection between the work injury and any permanent 
 
         partial disability; and 2) the nature and extent, if any, of 
 
         permanent partial disability.
 
         
 
              For file numbered 1015024 (July 3, 1990):  1) whether 
 
         claimant tendered notice pursuant to section 85.23 to defendants 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         of an alleged injury on July 3, 1990; 2) whether claimant 
 
         sustained a work-related injury on July 3, 1990; 3) whether there 
 
         is a causal relationship between the alleged injury and any 
 
         permanent partial disability; and 4) whether claimant is entitled 
 
         to any permanent partial disability benefits.
 
         
 
              For file numbered 1015025 (August 13, 1990):  1) whether 
 
         claimant tendered notice pursuant to section 85.23 to defendants 
 
         of an alleged injury on August 13, 1990; 2) whether claimant 
 
         sustained a work-related injury on August 13, 1990; whether there 
 
         is a causal relationship between the alleged injury and any 
 
         permanent partial disability; and 4) whether claimant is entitled 
 
         to any permanent partial disability benefits.
 
         
 
              For file numbered 1015026 (May 14, 1991):  1) whether 
 
         claimant tendered notice pursuant to section 85.23 to defendants 
 
         of an alleged injury on May 14, 1991; 2) whether claimant 
 
         sustained a work-related injury on May 14, 1991; 3) whether there 
 
         is a causal relationship between the alleged injury and any 
 
         temporary or permanent partial disability; and 4) whether 
 
         claimant is entitled to any permanent partial disability 
 
         benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:  
 
         
 
              Claimant is the 48-year-old married woman of a 16-year-old 
 
         daughter.  In 1963 claimant graduated from Gilmore City High 
 
         School.  In addition to her high school education, claimant has 
 
         earned certificates of competency in several fields.  She holds 
 
         certificates as a geriatric aide and as a medication aide; she 
 
         has certificates with respect to cooking in a nursing home; she 
 
         also has a certificate for completion of a CPR course; she holds 
 
         a chauffeur's license; and she has taken a two level course in 
 
         handling the mentally disabled.
 
         
 
              Claimant has held a variety of positions throughout her 
 
         working life.  She has worked as a nurse's aide; she has worked 
 
         as a geriatric's aide; she has had a variety of positions in the 
 
         restaurant and lounge business; and she has had experience 
 
         running a family bar business.  All of the positions have been 
 
         minimum wage type jobs which have paid less than $5.00 per hour.  
 
         Because of the poor pay in the positions, claimant has been 
 
         forced to work more than one job, at one time.
 
         
 
              Currently, claimant is employed as a residential counselor 
 
         in a home for the mentally disabled.  She serves as a 
 
         "houseparent" at Pillar Housee.  Originally, claimant worked on a 
 
         part-time basis.  For a period of time, claimant worked at Pillar 
 
         House and also at the nursing center.  
 
         
 
              At the time of the hearing, claimant testified that she 
 
         earns $4.83 per hour and that she has health benefits provided to 
 
         her.  Her hours are from 11 p.m. to after 9 a.m.  She is now a 
 
         full time employee and works 40 hours per week.  Her duties 
 
         include:  waking up the clients at 5:30 a.m. and overseeing the 
 
         preparation of breakfast; assisting the clients to the morning 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         bus; and generally watching over the home.  There is no lifting 
 
         involved.  Claimant is allowed to sleep during the early morning 
 
         hours.  
 
         
 
              Claimant worked for defendant-employer on three separate 
 
         occasions during the period from 1973 through May 14, 1991.  The 
 
         last period of employment occurred on January 17, 1989 when she 
 
         was hired as a part-time nurse's aide.  At the time, claimant was 
 
         also working as a nurse's aide for a private individual.  It too 
 
         was a part-time position.
 
         
 
              During her employment at the nursing home, claimant's duties 
 
         varied from day-to-day.  She lifted and transported geriatric 
 
         residents.  She provided personal care to them.  She changed bed 
 
         sheets, cleaned, and cared for equipment and supplies, and she 
 
         performed other duties as assigned to her.  Sometimes the 
 
         residents weighed as little as 58 to 88 pounds; other residents 
 
         weighed as much as 250 pounds.  Claimant was required to push the 
 
         residents in wheelchairs; the work was physically demanding.
 
         
 
              The parties have stipulated that claimant has sustained 
 
         work-related injuries on November 5, 1989, May 7, 1990, and on 
 
         June 14, 1990.  
 
         
 
              On November 5, 1989, claimant was transporting a resident 
 
         from a bed to a wheelchair.  She experienced pain in her back 
 
         during the lifting operation.  Claimant reported the incident to 
 
         Jerry Wheeler, the nurse in charge.
 
         
 
              Defendant authorized claimant to receive medical attention 
 
         at the Humboldt County Memorial Hospital.  L. Dvorak, M.D., 
 
         rendered emergency treatment on the date of the injury.  He 
 
         diagnosed claimant as having "muscle spasm, back."  (Exhibit page 
 
         31).   X-rays of the thoracic spine were normal.  The physician 
 
         prescribed several medications.  Claimant was treated 
 
         conservatively.  She remained off work until November 14, 1989.  
 
         Upon her return to work, she continued in her same capacity.  Her 
 
         return to work was without incident until May 5, 1990.
 
         
 
              On May 5, 1990 claimant was lifting a resident into a 
 
         wheelchair.  During the lifting procedure, claimant felt a 
 
         "popping" in her back.  She reported the incident to a supervisor 
 
         who, in turn, authorized claimant to seek medical attention at 
 
         the Humboldt County Memorial Hospital.
 
         
 
              Records for that day indicate claimant was again examined by 
 
         Dr. Dvorak.  He diagnosed claimant as having, "acute muscle 
 
         spasm."  (Ex. p. 33)  The physician ordered x-rays of the lumbar 
 
         spine.  C. P. Pun, M.D., a radiologist, read the x-rays.  He 
 
         opined:
 
         
 
              IMPRESSION:  1) Degenerative disc disease at the level                      
 
              of L3 disc.
 
         
 
                           2) Osteophytosis of lumbar vertebrae at L1                     
 
              and L3.
 
             
 
         (Ex. p. 34)
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
              Dr. Dvorak also ordered a CT scan of the spine.  According 
 
         to Dr. Pun's report of May 10, 1990, the spine showed:
 
         
 
              1) Degenerative disc disc [sic] disease involving L3, 
 
                 L4 and L5 discs with severe bulging of the annular 
 
                 fibrosis.
 
         
 
              2) Herniation of the nucleus of the L3 disc into the 
 
                 lateral recess on the left with nerve root 
 
                 compression is considered radiographically.  
 
                 Possible compression to the nerve root sleeve on the 
 
                 left side and lateral recess of the L4 disc from 
 
                 severe bulging of the annular fibrosis is also 
 
                 evidenced radiographically.
 
         
 
              3) Facet joint arthritis at the level of L5-S1, more 
 
                 severe on the right. 
 
         
 
         (Ex. p. 35)
 
         
 
              Dr. Dvorak provided follow up treatment for claimant on May 
 
         9, 1990.  He also referred claimant to David W. Beck, M.D., a 
 
         neurological surgeon.  In his report of May 16, 1990, Dr. Beck 
 
         opined:
 
         
 
              I received the CT scan on Peggy.  I don't really see a 
 
              lot on the CT scan.  She has disc bulging at L3-4, 
 
              L4-5, and L5-S1.  Because of her large size, the 
 
              definition is not very good.  As I said before, I would 
 
              continue conservative measures on her as long as 
 
              possible.  I told her I probably wouldn't recommend 
 
              working until her pain goes all away.  I have given her 
 
              a prn return appointment.
 
         
 
         (Ex. p. 10)
 
         
 
              Dr. Beck removed claimant from work for a period of time.   
 
         She did not return to work until June 1, 1990 when she returned 
 
         to light duty in the laundry area.  Claimant folded clothes and 
 
         transported clothes in baskets which were on wheels.  The work 
 
         was lighter than the work performed by a nurse's aide.  Claimant 
 
         worked four hours per day and she received temporary partial 
 
         disability benefits.
 
         
 
              Two weeks later, claimant sustained a third work-related 
 
         injury to her back.  On June 14, 1990 claimant was pushing a 
 
         resident in a wheelchair.  She attempted to push the chair up to 
 
         a table when she experienced severe pain in the mid and lower 
 
         back area.
 
         
 
              Claimant sought medical treatment from Dr. Dvorak on the 
 
         following day.  (Ex. p. 16)  He prescribed Ibuprofen and Parafon 
 
         Forte, heat, and physical therapy.  Dr. Dvorak also referred 
 
         claimant to an orthopedic surgeon, William R. Boulden, M.D.
 
         
 
              Dr. Boulden removed claimant from work.  He also ordered a 
 
         MRI.  The results of the MRI showed that claimant's spine was 
 
         within the normal range.  (Ex. p. 30)
 
         
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
              After Dr. Boulden had an opportunity to review the MRI, the 
 
         orthopedic surgeon opined:
 
         
 
              MRI in our interpretation does not really show anything 
 
              abnormal.  It did not show any evidence of ruptured 
 
              disc.  It showed no signs of nerve entrapment and 
 
              therefore, at this point in time, I think most of her 
 
              pain is probably more myofascial in nature.
 
         
 
              We are going to start her on a conditioning program of 
 
              her lower back.  We will re-evaluate the patient in 
 
              approximately three weeks.  She is not ready to return 
 
              back to work at this point in time.
 
         
 
         (Ex. p. 5)
 
         
 
              Claimant returned to work on August 16, 1990 in the capacity 
 
         of a cook.  (Ex. p. 8)  Dr. Boulden also restricted claimant from 
 
         engaging in bending, lifting, and twisting with her back.  (Ex. 
 
         p. 8)  She returned to work at $4.25 per hour.  This was five 
 
         cents less than what she had been earning as a nurse's aide.  
 
         (Ex. p. 101)
 
         
 
              Claimant worked in the capacity of a cook until May 15, 
 
         1991.  During her tenure as a cook, claimant lifted large 
 
         kettles, cookie sheets and carried pots and pans.  She engaged in 
 
         bending and stooping in order to retrieve utensils and supplies 
 
         from the various cupboards.  While she continued to work during 
 
         this period, she worked slightly less hours than she had worked 
 
         as a nurse's aide.  
 
         
 
              Claimant experienced low back pain.  As a consequence, she 
 
         sought another examination with Dr. Boulden.  He authored a 
 
         report dated May 15, 1991, in which he wrote:
 
         Peggy is in today.  She still has the same complaints that she 
 
         had before.  She says she is worsening again.
 
         I really have no further treatment recommendations for this 
 
         patient.  I feel her problem is strictly soft tissue since she 
 
         has had normal work up in the past.  I think that her back is out 
 
         of shape and that work in general of any physical nature will 
 
         cause her symptoms.  Since she has not sustained any pathological 
 
         changes in her back, I think that she should just find different 
 
         work.
 
         
 
         (Ex. p. 2)
 
         
 
              Claimant did not return to work at defendant's establishment 
 
         after May 15, 1991.  Instead, she started working full time with 
 
         the Pillar House in the position described above.
 
         
 
              On May 14, 1990, claimant filed original notices and 
 
         petitions for files numbered 1015024, 1015025 and 1015026.  With 
 
         respect to 1015024, claimant alleged, in her petition, that she 
 
         had sustained a work-related injury in that, she had seen Dr. 
 
         Boulden, and he would not release claimant to return to work as a 
 
         nurse's aide.
 
         
 
              In file numbered 1015025, claimant alleged she sustained a 
 
         work-related injury to her back on August 13, 1990.  Claimant 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         alleged the injury occurred on that date because, Dr. Boulden 
 
         removed claimant from the nurse's aide job to the cook's job 
 
         which she started on August 16, 1990.
 
         
 
              In file numbered, 1015026, claimant alleged she sustained a 
 
         work-related injury to her back on May 14, 1991.  On that date, 
 
         claimant alleged she was no longer able to continue in the employ 
 
         of defendant and that the decision to terminate the employment 
 
         relationship was based upon the advice given to claimant from Dr. 
 
         Boulden.  The August 14, 1991 date was the last date on which 
 
         claimant worked for defendant.
 
         
 
              Upon taking official notice of the first reports of injury, 
 
         for the aforementioned three files, the undersigned deputy finds 
 
         that defendants had no notice of the injuries until on or about 
 
         the date the petitions were filed.  Defendants had actual 
 
         knowledge of the injuries in May of 1992.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The first issue to address is the issue which deals with 
 
         notice pursuant to section 85.23 of the Iowa Code.  The relevant 
 
         portion of the section provides that:
 
         Unless the employer or the employer's representative shall have 
 
         actual knowledge of the occurrence of an injury received within 
 
         ninety days from the date of the occurrence of the injury, or 
 
         unless the employee or someone on the employee's behalf or a 
 
         dependent or someone on the dependent's behalf shall give notice 
 
         thereof to the employer within ninety days from the date of the 
 
         occurrence of the injury, no compensation shall be allowed.
 
         
 
              Failure to give notice is an affirmative defense which the 
 
         employer must prove by a preponderance of the evidence.  DeLong 
 
         v. Highway Commission, 229 Iowa 700, 295 N.W. 91 (1940).  Mefferd 
 
         v. Ed Miller & Sons, Inc., Thirty-third Biennial Report of the 
 
         Industrial Commissioner 191 (Appeal Decision 1977).
 
         
 
              The time period contemplated in Iowa Code section 85.23 does 
 
         not begin to run until the claimant has knowledge of the nature 
 
         of his disability.  Jacques v. Farmers Lbr. & Sup. Co., 242 Iowa 
 
         548, 47 N.W.2d 236, 239 (1951).
 
         
 
              An employer's actual knowledge of occurrence of injury must 
 
         include some information that the injury is work-connected in 
 
         order to satisfy the alternative notice of claim requirement.   
 
         Robinson v. Department of Transp., 296 N.W.2d 809, 812 (Iowa 
 
         1980).  The interpretation in Robinson was confirmed in Doerfer 
 
         Division of CCA v. Nichol, 359 N.W.2d 4218, 435 (Iowa 1984).
 
         
 
              A claimant's duty to give notice of injury arises when the 
 
         claimant should recognize the nature, seriousness and probable 
 
         compensable character of his injury or disease.  The 
 
         reason-ableness of claimant's conduct is to be judged in light of 
 
         his education and intelligence.  Claimant must know enough about 
 
         the injury or disease to realize that it is both serious and work 
 
         connected, but positive medical information is unnecessary if he 
 
         has information from any source which puts him on notice of its 
 
         probable compensability.  Robinson, supra.
 
         
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
              The purpose of the 90 day notice or actual knowledge 
 
         requirement is to give the employer an opportunity to timely 
 
         investigate the facts of the injury.  Knipe v. Skelgas Co., 229 
 
         Iowa 740, 748, 294 N.W. 880, 994 (1940); Hobbs v. Sioux City, 368 
 
         N.W.2d 176 (Iowa 1985).  Koopmans v. Iowa Electric Light and 
 
         Power Company, (Appeal Decision dated December 30, 1981).
 
         
 
              The word "compensable" in the workers' compensation notice 
 
         context is not used to connote legal knowledge that a claim is 
 
         within the workers' compensation act.  Rather, "compensable" 
 
         means that the disability injury was work connected.  Quaker Oats 
 
         Co. v. Miller, 370 So. 2d 1363, 1366  (Miss. 1979).
 
         
 
              Unless a statute that imposes a period of limitations 
 
         expressly authorizes exceptions for extenuating circumstances, it 
 
         must be applied uniformly even though the result may seem harsh.  
 
         Burgess v. Great Plains Bag Corporation, 409 N.W.2d 676, 679 
 
         (Iowa 1987).
 
         
 
              A mistake of law is no more an excuse in connection with a 
 
         late compensation claim than anywhere else, unless expressly made 
 
         so by statute.  3 Larson, Workmen's Compensation Law, Section 
 
         78.47 at 15-334.
 
         
 
              In the instant case, defendants raise the affirmative 
 
         defense of lack of notice under section 85.23.  Defendants bear 
 
         the burden of proof with respect to the issue.  The party who 
 
         will suffer a loss if an issue is not established has the burden 
 
         of proving that issue by a preponderance of the evidence.  Iowa 
 
         R. App. P. 14 (f).
 
         
 
              There is no question in this deputy's mind that defendants 
 
         had no prior notice of claimant's alleged injuries of July 3, 
 
         1990, August 13, 1990 and May 14, 1991, until the date the 
 
         petitions were filed on May 14, 1992.  Administrative notice of 
 
         the first reports of injury was taken with respect to notice, as 
 
         provided by section 86.11.  That section provides in relevant 
 
         portion:
 
         
 
              The report to the industrial commissioner of injury 
 
              shall be without prejudice to the employer or insurance 
 
              carrier and shall not be admitted in evidence or used 
 
              in any trial or hearing before any court, the 
 
              industrial commissioner or a deputy industrial 
 
              commissioner except as to the notice under section 
 
              85.23
 
         
 
              All of the first reports of injury, for the aforementioned 
 
         dates, reflect that defendants first knew of the alleged 
 
         conditions in May of 1992.  The May 1992 date far exceeds the 90 
 
         day notice requirement which is set in section 85.23.  Claimant 
 
         argues that she has complied with the 90 day notice requirement 
 
         because there are medical reports from claimant's treating 
 
         physicians on the three dates in question, and the defendants had 
 
         received the respective medical reports prior to the date the 
 
         petition was filed.  Hence, claimant contends defendants had 
 
         sufficient notice.  Such a rationale is ludicrous.  It is absurd 
 
         to think that every time there is a medical report which is 
 
         authored by a treating physician, then there is a separate injury 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         date.  If claimant's argument is followed, the members of this 
 
         division will accomplish little more than opening new files.  
 
         Claimant's argument is without merit.  Claimant has failed to 
 
         tender proper notice under section 85.23 of the Iowa Code with 
 
         respect to files numbered 1015024, 1015025 and 1015026.  Since 
 
         claimant has failed to tender proper notice as provided by the 
 
         statute, no compensation shall be allowed for the aforementioned 
 
         three files.
 
         
 
              The remaining issues deal with files numbered 934958, 950764 
 
         and 1015023.  The parties have stipulated that separate work 
 
         injuries have occurred on each of the three dates. The parties 
 
         have stipulated that defendants have paid for all temporary or 
 
         healing period benefits which may be due to claimant.  The 
 
         parties have not agreed that the three work injuries have given 
 
         rise to any permanent condition.  Likewise, the parties dispute 
 
         the nature and extent of claimant's permanent condition, if any. 
 
         
 
              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 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).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which the employee is 
 
         fitted.  Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 
 
         N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  
 
         Impairment and disability are not synonymous.  The degree of 
 
         industrial disability can be much different than the degree of 
 
         impairment because industrial disability references to loss of 
 
         earning capacity and impairment references to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of the healing period; 
 
         the work experience of the employee prior to the injury and after 
 
         the injury and the potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Likewise, an employer's refusal to give any sort of work to an 
 
         impaired employee may justify an award of disability.  McSpadden 
 
         v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  Neither does a rating of 
 
         functional impairment directly correlate to a degree of 
 
         industrial disability to the body as a whole.  In other words, 
 
         there are no formulae which can be applied and then added up to 
 
         determine the degree of industrial disability.  It therefore 
 
         becomes necessary for the deputy or commissioner to draw upon 
 
         prior experience as well as general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 529 (App. March 26, 1985); 
 
         Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 654 (App. February 28, 1985).
 
         
 
              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.
 
         
 
              It is overwhelmingly clear that claimant's low back 
 
         condition stems from her work injury on June 14, 1990.  This was 
 
         the last date she was capable of working as a nurse's aide, a 
 
         position she had held for a number of years.  It is true that 
 
         claimant first injured her back on November 5, 1989.  However, 
 
         her injury was only temporary and she was able to return to her 
 
         regular work duties without restrictions.  She worked without 
 
         incident for approximately six months.  She sustained no 
 
         permanent condition as a result of her work injury on November 5, 
 
         1989. 
 
         
 
              After the May 5, 1990 work injury, claimant was placed on 
 
         light duty.  She was assigned to the laundry department on a 
 
         temporary basis where she was assigned the task of folding 
 
         clothes.  She worked for two weeks, then she reinjured her back.  
 
         She was diagnosed as having a muscle spasm.  
 
         
 
              It is the June 14, 1990 injury which is the cause of 
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         claimant's permanent condition.  It is recognized there is little 
 
         objective evidence to substantiate claimant's permanent 
 
         condition, but claimant is working pursuant to permanently 
 
         imposed restrictions which were imposed by her physician.  The 
 
         treating orthopedic surgeon, Dr. Boulden, has assessed a five 
 
         percent permanent impairment.  After the June 14, 1990 date, 
 
         claimant was unable to continue in her position as a nurse's 
 
         aide.  She was forced to consider another position in the care 
 
         facility.  She could no longer engage in bending and twisting.  
 
         Dr. Boulden assigned the following restrictions to claimant:  "No 
 
         bending, lifting, twisting with her back.  Cooking job."  (Ex. p. 
 
         8)
 
         
 
              Several weeks later Dr. Boulden opined that the restrictions 
 
         would be permanent.  Claimant was then assigned to the position 
 
         of cook where she earned five cents less per hour than what she 
 
         had earned as a nurse's aide.  She also worked a few hours less 
 
         per week as a cook.  The actual number of hours is uncertain, as 
 
         claimant could not provide specific information for each week 
 
         that she had worked.  The position of cook involved no lifting of 
 
         patients.  It did involve standing, walking, stooping and lifting 
 
         of cooking utensils.  Claimant continued in that capacity until 
 
         May 15, 1991 when claimant determined she could no longer work as 
 
         a cook.
 
         
 
              After May 15, 1991, claimant secured full time employment at 
 
         Pillar House, a group home for the mentally disabled.  Since her 
 
         employment at Pillar House, claimant has actually increased her 
 
         hourly earnings from what she had earned at defendant's care 
 
         facility.  At the time of the hearing, claimant was earning $4.83 
 
         per hour plus she received health benefits.  The most she had 
 
         ever earned while in the employ of defendant was $4.40 per hour.  
 
         Tax records for claimant show that in 1990 she earned $13,748.98.  
 
         In 1991 she earned $13,297.61 and in 1992 claimant earned 
 
         $14,166.95.  
 
         
 
              Claimant is still working in minimally skilled positions 
 
         which pay less than $5.00 per hour.  She has experienced a slight 
 
         reduction in her actual earnings.  She has had some reduction in 
 
         the hours worked during the final year of her employment with 
 
         defendant.  There is some evidence that claimant had not been 
 
         able to work all of the overtime which was available during her 
 
         final year of employment at the care facility.  Claimant has had 
 
         only a slight reduction in her earning capacity.  She is still 
 
         capable of working in minimally skilled positions.
 
         
 
              In light of the foregoing and in light of the observations 
 
         made of claimant, as well as agency expertise, it is the 
 
         determination of the undersigned that claimant has sustained a 
 
         permanent partial disability of five percent as a result of the 
 
         work injury of June 14, 1990.  Claimant is entitled to weekly 
 
         benefits for 25 weeks at the stipulated rate of $114.39 per week 
 
         commencing on August 17, 1990.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              With respect to file numbered 934958, claimant takes nothing 
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         
 
         further from these proceedings.
 
         
 
              With respect to file numbered 950764, claimant takes nothing 
 
         further from these proceedings.
 
         
 
              With respect to file numbered 1015024, claimant takes 
 
         nothing further from this proceeding.
 
         
 
              With respect to file numbered 1015025, claimant takes 
 
         nothing further from this proceeding.
 
         
 
              With respect to file numbered 1015026, claimant takes 
 
         nothing from this proceeding.
 
         
 
              With respect to file numbered 1015023, defendants shall pay 
 
         unto claimant twenty-five (25) weeks of permanent partial 
 
         disability benefits at the stipulated rate of one hundred 
 
         fourteen and 39/l00 dollars ($114.39) per week commencing on 
 
         August 17, 1990.
 
         
 
              Accrued benefits shall be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year 
 
         pursuant to section 85.30, Iowa Code, as amended.
 
         
 
              Defendants shall receive credit for all benefits previously 
 
         paid to claimant as a result of the work injuries.
 
         
 
              Defendants shall pay the costs of the actions pursuant to 
 
         rule 343 IAC 4.33.
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by this division and pursuant to rule 343 IAC 3.1.
 
         
 
         
 
         
 
              Signed and filed this ____ day of June, 1993.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Channing L. Dutton
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th Street, Suite 500
 
         West Des Moines, Iowa 50265
 
         
 
         Mr. Joseph S. Cortese, II
 
         Attorney at Law
 
         500 Liberty Building
 
         Des Moines, Iowa 50309
 
         
 
 
         
 
 
 
    
 
 
 
 
 
                                               2401; 1803
 
                                               Filed June 24, 1993
 
                                               MICHELLE A. McGOVERN
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         PEGGY SLAWSON, 
 
                                         File Nos. 1015026; 1015025
 
              Claimant,                            1015024; 1015023
 
                                                   950764; 934958
 
         vs.       
 
                                           A R B I T R A T I O N
 
         HUMBOLDT CARE CENTER SOUTH,   
 
                                             D E C I S I O N
 
              Employer, 
 
                   
 
         and       
 
                   
 
         FIDELITY & CASUALTY INSURANCE 
 
         COMPANY,  
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         
 
         
 
         2401
 
         Claimant filed six separate petitions.  Each petition alleged a 
 
         separate date of injury.  The parties stipulated to three of the 
 
         six injury dates.  Defendants raised the affirmative defense of 
 
         lack of notice of the injury within 90 days of the alleged injury 
 
         dates.  Defendants received no notice of three alleged injury 
 
         dates until the date the three petitions were filed.  The 
 
         petitions were filed more than six months after the last alleged 
 
         injury date.  The first reports of injury indicated there was no 
 
         notice until after the petitions were filed.  Claimant alleged 
 
         there was adequate notice since the three dates alleged, were 
 
         dates on which the treating physician had authored medical 
 
         reports and defendants had received copies of the medical 
 
         reports.  HELD:  Claimant did not tender notice of three alleged 
 
         injury dates within 90 days as provided by section 85.23.
 
         
 
         
 
         1803
 
         Claimant was awarded a 5 percent industrial disability after she 
 
         had sustained a low back injury.  The physician opined that 
 
         claimant had sustained a five percent impairment. There was 
 
         little objective evidence to support a finding of permanency.  
 
         However, the treating orthopedic surgeon imposed permanent 
 
         restrictions of no bending, twisting or lifting.  Claimant was 
 
         also forced to give up her position as a nurse's aide which she 
 
         had held on several occasions.  Claimant, with her doctor's 
 
         recommendations, took a position as a cook within defendant's 
 
         establishment.  She earned five cents less per hour than she had 
 

 
         
 
 
 
 
 
            
 
 
 
         earned as a nurse's aide.  After working as a cook for 
 
         approximately one year, claimant determined she was unable to 
 
         continue in the same capacity.  She then took another position 
 
         with a group home where she earned approximately forty-three 
 
         cents more per hour than she had earned as a nurse's aide or as a 
 
         cook.
 
         
 
         HELD:  Claimant sustained a five percent permanent partial 
 
         disability.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BOBBY L. STUBBS,              :
 
                                          :
 
                 Claimant,                : File Nos. 935057 & 949383
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :      
 
            POLK COUNTY,                  :       D E C I S I O N
 
                                          : 
 
                 Self-Insured,            :
 
                 Employer,                :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Bobby L. 
 
            Stubbs, claimant, against Polk County, self-insured 
 
            employer,  defendant, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of injuries sustained 
 
            on December 21, 1989 and February 21, 1990.  This matter 
 
            came on for hearing before the undersigned deputy industrial 
 
            commissioner on October 8, 1993, in Des Moines, Iowa.  The 
 
            record was considered fully submitted at the close of the 
 
            hearing.  The claimant was present and testified.  Also 
 
            present and testifying were Amy Desenberg-Wines and William 
 
            David Powell.  The documentary evidence identified in the 
 
            record consists of joint exhibits 1 through 34 and 36 
 
            through 76.
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and order approving same 
 
            dated October 8, 1993, the parties have presented the 
 
            following issues for resolution:
 
            
 
                 .  Whether claimant sustained an injury on December 21, 
 
            1989 and February 21, 1990, which arose out of and in the 
 
            course of employment with employer;
 
            
 
                 .  Whether the injuries caused permanent disability and 
 
            if so, the extent thereof; and
 
            
 
                 .  Whether claimant is entitled to payment of an 
 
            independent medical examination under Iowa Code section 
 
            85.39.
 
            
 
                                FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on June 3, 1939.  He completed the 
 
            ninth grade of school and received his GED in 1956 while 
 
            serving in the United States Air Force.  He served in the 
 

 
            
 
            Page   2
 
            
 
                
 
            
 
            United States Air Force from 1955 through 1960.  In 1960 he 
 
            worked in a warehouse loading sugar.  He served in the 
 
            United States Army from 1961 through 1972.  In September 
 
            1977 he received an associate degree in law enforcement.  In 
 
            1991 he received a bachelor of arts degree in criminal 
 
            justice from Simpson College in Indianola, Iowa.  He worked 
 
            for the Polk County Sheriff's department from 1970 through 
 
            1974.  From 1974 through January 1977 he worked for the 
 
            United States government as an administrative supply 
 
            technician.  In June 1977 he returned to the Polk County 
 
            Sheriff's department and was assigned to jail duty.  He 
 
            worked there until he was put on disability retirement on 
 
            July 13, 1993.  
 
            
 
                 Claimant has a 100 percent service-connected disability 
 
            rating which includes 30 percent for bronchitis, 30 percent 
 
            for posttraumatic stress, 10 percent for the back, and 30 
 
            percent for the ankle.  In 1974, while serving in the 
 
            reserves, claimant was involved in a crush injury to his 
 
            chest, arm and left rib.  He has had intermittent left sided 
 
            neck pain since that time.  However, this injury never 
 
            caused him to lose any work.  In November 1985, claimant 
 
            slipped and fell at a Sears store and twisted his back and 
 
            ankle.  He received intermittent medical attention for his 
 
            back until 1988.  Again, this injury did not cause him to 
 
            lose any time off work.  
 
            
 
                 In file number 935057, claimant alleges that on 
 
            December 21, 1989, while getting a prisoner off the 
 
            elevator, he slipped and twisted his ankle and sprained his 
 
            back and the right side of his neck.  Claimant testified 
 
            that he missed five or six days of work and returned to 
 
            regular duty while participating in conservative physical 
 
            therapy treatment.  The medical evidence reveals that 
 
            claimant saw Peter D. Wirtz, M.D., on February 5, 1990, as a 
 
            result of this injury (exhibits 2-5).
 
            
 
                 In file number 949383, claimant alleges that on 
 
            February 21, 1990, during an altercation with an inmate, he 
 
            hit his neck on the corner of a table in a Polk County 
 
            courtroom.  While continuing with physical therapy and 
 
            conservative treatment, claimant assumed his regular jailer 
 
            duties.  However, his symptoms did not improve and Dr. Wirtz 
 
            recommended an MRI evaluation (exs. 6-9).  An MRI cervical 
 
            spine evaluation was performed on May 16, 1990, and 
 
            interpreted by Charles Zacharias, M.D.  The results revealed 
 
            a central/right sided disc protrusion/herniation at C6/7 and 
 
            a slightly smaller, noncompressive disc protrusion on the 
 
            right at C5/6 (ex. 11).
 
            
 
                 On June 13, 1990, S. Randy Winston, M.D., admitted 
 
            claimant to Mercy Hospital Medical Center where he performed 
 
            an anterior cervical laminectomy and fusion at C6-7.  
 
            Claimant was discharged on June 16, 1990 (exs. 16-19).  
 
            
 
                 Subsequent to surgery, claimant was put on a work 
 
            hardening program under the direction of Scott Harmon (exs. 
 
            24-26).  On September 28, 1990, Dr. Winston requested that 
 
            Mr. Harmon perform a functional capacity evaluation (ex. 
 
            27).
 

 
            
 
            Page   3
 
               
 
            
 
               
 
                 On October 26, 1990, claimant underwent a functional 
 
            capacity evaluation by Robert W. Jones, B.S., vocational 
 
            evaluator.  The results indicated continued slight posterior 
 
            neck and right upper extremity pain and right upper 
 
            extremity weakness.  The evaluator questioned claimant's 
 
            physical stamina for maintaining medium work activity and 
 
            recommended that he be restricted to light-medium employment 
 
            lifting up to 35 pounds maximum and 20 pounds repetitively.  
 
            In addition, because of consistent weakness with his right 
 
            dominant extremity, he was restricted to no lifting above 
 
            waist to midchest height.  It was determined that he was 
 
            capable of returning to his previous employment as a Polk 
 
            County deputy sheriff (ex. 28).  
 
            
 
                 Dr. Winston released claimant to return to regular work 
 
            duties on December 17, 1990.  He gave him a permanent 
 
            partial impairment rating of 10 percent to the body as a 
 
            whole (exs. 31-32).  Claimant testified that he returned to 
 
            work on December 17, 1990.  He worked the day shift for 40 
 
            days and at his request, was transferred to the midnight 
 
            shift.  Claimant testified that he felt this shift would be 
 
            less strenuous than the day shift.  This was disputed by 
 
            claimant's supervisor, Lieutenant Powell.  Lt. Powell 
 
            testified that claimant informed him that he transferred to 
 
            the night shift in order to attend school.  Claimant stated 
 
            that he did not tell his superiors that he could only 
 
            perform light duty because he was afraid of losing his job.  
 
            At this time, his wife was dying and he needed to continue 
 
            to work.  He stated, and Lt. Powell corroborated, that there 
 
            is no light duty at Polk County Jail.
 
            
 
                 On August 21, 1991, claimant had a heart attack.  He 
 
            underwent coronary artery bypass surgery in October 1991.  
 
            Claimant testified that he returned to work on January 9, 
 
            1992.  He had another incident on March 3, 1992, and was put 
 
            on half-pay disability.  On September 2, 1992, he was 
 
            evaluated at the University of Iowa Medical Center.  In 
 
            addition to his heart condition, it was determined that he 
 
            had disabling dyspnea (ex. 73).  
 
            
 
                 Claimant's disability eligibility ended on January 13, 
 
            1993.  Due to his multiple medical problems he was forced to 
 
            take disability retirement on July 13, 1993.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is whether claimant 
 
            sustained injuries on December 21, 1989 and February 21, 
 
            1990, arising out of and in the course of employment with 
 
            employer.  
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 

 
            
 
            Page   4
 
            
 
            
 
               
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 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 
 
            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).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An occupational 
 
            disease covered by chapter 85A is specifically excluded from 
 
            the definition of personal injury.  Iowa Code section 
 
            85.61(5); Iowa Code section 85A.8.
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 Claimant testified that on December 21, 1989, he 
 

 
            
 
            Page   5
 
              
 
            
 
            
 
            slipped while at work and twisted his neck, right arm and 
 
            right shoulder.  He saw a physician in February 1990 and was 
 
            placed on conservative therapy.  Claimant was off work for a 
 
            few days and was paid temporary total disability benefits 
 
            through January 8, 1990.  Defendant paid all of claimant's 
 
            medical benefits as a result of this injury. 
 
            
 
                 Although defendant disputes that claimant sustained a 
 
            work injury on December 21, 1989, they presented no evidence 
 
            to the contrary.  Therefore, it is found that claimant 
 
            sustained his burden of proof as to an injury arising out of 
 
            and in the course of employment with employer on December 
 
            21, 1989.
 
            
 
                 Defendant also disputes that claimant sustained an 
 
            injury to the right side of his neck on February 21, 1990.  
 
            Again, defendant presented no evidence to refute claimant's 
 
            claimed injury.  They paid claimant healing period benefits 
 
            as to this injury from May 13, 1990 through December 16, 
 
            1990.  Defendant argues that claimant has had neck problems 
 
            for many years prior to this alleged injury.  However, a 
 
            careful review of the medical evidence from 1981 through 
 
            1986 reveals that claimant complained of neck discomfort on 
 
            January 21, 1984, but his complaints were referable to left 
 
            sided neck pain.  In any event, claimant never lost work on 
 
            account of a neck injury and it never precluded him from 
 
            performing his regular duties as a jailer for Polk County 
 
            (exs. 37-62).
 
            
 
                 Accordingly, it is determined that claimant has met his 
 
            burden of proof as to a work-related injury on February 21, 
 
            1990.  
 
            
 
                 The next issue to be determined is whether claimant 
 
            suffered a permanent impairment as a result of his work 
 
            injuries.  
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injuries 
 
            of December 21, 1989 and February 21, 1990, are causally 
 
            related to the disability on which he now bases his claim.  
 
            Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965);  
 
            Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945).  
 
            A possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 
 
            738 (Iowa 1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  
 
            Expert medical evidence must be considered with all other 
 
            evidence introduced bearing on the causal connection.  Burt, 
 
            73 N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, the weight to be given to such an opinion 
 
            is for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 

 
            
 
            Page   6
 
              
 
            
 
            
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The supreme court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 The record clearly demonstrates that claimant's neck 
 
            injury has caused permanent disability.  Claimant underwent 
 
            surgery on June 13, 1990.  He was placed on conservative 
 
            therapy, including a work hardening program.  On October 26, 
 
            1990, his treating surgeon authorized a functional capacity 
 
            evaluation.  As a result of this evaluation, claimant was 
 
            limited to lifting up to 35 pounds and no lifting above 
 
            midchest level.  Dr. Winston testified in a deposition taken 
 
            on August 13, 1993, that he does not usually disagree with 
 
            the limitations imposed by his consultants in physical 
 
            medicine and rehabilitation (ex. 76, page 14).   Dr. Winston 
 
            also testified that when he released claimant to return to 
 
            regular duty he was aware that he would be working on the 
 
            midnight shift (although this is not evident in his release 
 
            notice) and he felt that such work would be consistent with 
 
            the limitations imposed as a result of the functional 
 
            capacity evaluation.  He stated that he released claimant 
 
            consistent with what claimant wanted to do and what he 
 
            wanted claimant to do considering his circumstances at the 
 
            time (ex. 76, p. 16).  Dr. Winston stated that he was aware 
 
            of claimant's duties as a jailer and he had some 
 
            reservations releasing claimant to work even on the midnight 
 
            shift because he would be subject to the possibility of an 
 
            altercation and risk of re-injury.  Nevertheless, he felt 
 
            that sometimes people have to return to work in situations 
 
            which are not the most medically desirable (ex. 76, pp. 
 
            17-19).
 
            
 
                 Since it has been determined that claimant's work 
 
            injury resulted in a permanent impairment, the extent of 
 
            permanent disability must now be decided.
 
            
 
                 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, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson, 255 Iowa 1112, 125 N.W.2d 251; 
 
            Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 

 
            
 
            Page   7
 
            
 
             
 
            
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 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.
 
            
 
                 Critical to a determination of industrial disability, 
 
            is whether claimant's injury has caused a reduction in 
 
            earning capacity.  This determination is based on claimant's 
 
            status at the time he was released to return to work by his 
 
            treating physician on December 17, 1990.  Claimant's 
 
            subsequent medical problems which ultimately resulted in a 
 
            disability retirement are irrelevant to this claim and will 
 
            not be considered when determining claimant's industrial 
 
            disability.  
 
            
 
                 Although claimant was released to return to work, 
 
            supposedly without restrictions, Dr. Winston more than 
 
            adequately clarified his position regarding his 
 
            understanding of claimant's work status on December 17, 
 
            1990.  After a comprehensive functional capacity evaluation, 
 
            claimant was given certain physical restrictions.  Based on 
 
            this evaluation, Dr. Winston felt that claimant was capable 
 
            of performing light work activity and was told by claimant 
 

 
            
 
            Page   8
 
             
 
            
 
            
 
            that such work was available on the midnight shift to which 
 
            he would be transferred after a month or so.  Claimant 
 
            testified that the midnight shift was less strenuous than 
 
            the day shift and most of his work activity consisted of 
 
            sitting at his work station and making rounds when 
 
            appropriate.  The fact that claimant may have had to engage 
 
            in an altercation with a prisoner is irrelevant since he 
 
            chose to continue working realizing this risk.  
 
            Nevertheless, this does not negate the fact that claimant's 
 
            restrictions make him less attractive to other employers 
 
            which is a limitation of earning capacity.  
 
            
 
                 Nevertheless, the reality of the situation is that 
 
            claimant was able to work as a jailer without difficulty, 
 
            restriction or accommodation by employer from December 17, 
 
            1990, until he had a heart attack in August 1991.  The heart 
 
            attack is not the subject of this claim.  
 
            
 
                 At the time of his work-related injury, claimant was 51 
 
            years old.  He was a college graduate with a bachelor's 
 
            degree in criminal justice.  Claimant attended at least 30 
 
            training school programs and has extensive military 
 
            leadership experience.  It is conceivable that claimant has 
 
            transferable skills to other occupations if he chose to 
 
            voluntarily terminate his work as a jailer.  A vocational 
 
            assessment made by Amy Desenberg-Wines, M.S., vocational 
 
            consultant, indicates that jobs exist in the Des Moines area 
 
            for which claimant would be medically, vocationally and 
 
            educationally qualified (ex. 75).
 
            
 
                 Claimant's neck injury did not interfere with his 
 
            ability to work.  Employer did not need to reshape or adjust 
 
            claimant's job duties because of his injury.  Claimant did 
 
            not suffer a loss of earnings due to his injury.
 
            
 
                 After carefully considering the total evidence in this 
 
            case and all of the factors related to industrial 
 
            disability, it is determined that claimant is 15 percent 
 
            industrially disabled.  Claimant is entitled to 75 weeks of 
 
            permanent partial disability benefits commencing December 
 
            17, 1990, at the rate of $350.87 per week.  
 
            
 
                 The final issue to be determined is whether claimant is 
 
            entitled to reimbursement for an independent medical 
 
            examination performed by Martin S. Rosenfeld, D.O., on 
 
            September 13, 1993, under Iowa Code section 85.39.  
 
            
 
                 Defendant argues that claimant obtained Dr. Rosenfeld's 
 
            evaluation after the expiration of his case preparation 
 
            date.  Dr. Rosenfeld's report was excluded from evidence 
 
            based on defendant's objection that the report was untimely 
 
            served.  Defendant also challenges Dr. Rosenfeld's bill of 
 
            $750 (ex. 36).  
 
            
 
                 Iowa Code section 85.39 provides that if an evaluation 
 
            of permanent disability has been made by a physician 
 
            retained by the employer, and the employee believes this 
 
            evaluation to be too low, then the employee is entitled to 
 
            an examination by a physician of the employee's own choice 
 
            and the reasonable necessary transportation expenses 
 

 
            
 
            Page   9
 
            
 
              
 
            
 
            incurred for the examination.  
 
            
 
                 It is not necessary for the claimant to obtain the 
 
            prior approval of defendant or file an application prior to 
 
            seeing an independent medical examiner.  It is not necessary 
 
            for claimant to apply for reimbursement for an independent 
 
            medical examination by a physician of his own choice prior 
 
            to the examination or prior to hearing.  Pirozek v. Swift 
 
            Independent Packing, file no. 803955 (1986).  The only 
 
            condition precedent is a medical examination by an 
 
            employer-retained physician.  Pirozek v. Swift Independent 
 
            Packing and Second Injury Fund of Iowa, file nos. 753643, 
 
            753642, 724893 (App. Dec. 1987).  The provision for 
 
            reimbursement comes into play when, as here, defendant's 
 
            liability is established.  McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980).  
 
            
 
                 An application for an independent medical examination 
 
            under Iowa Code section 85.39 need not precede the 
 
            examination if the claimant is satisfied to wait until the 
 
            hearing to be reimbursed provided that this is designated as 
 
            a hearing issue on the hearing assignment order.  Pirozek, 
 
            file number 803955.  Dr. Winston gave claimant a 10 percent 
 
            permanent partial impairment rating on December 18, 1990.  
 
            Dr. Rosenfeld's evaluation was made on September 13, 1993, 
 
            which was subsequent to Dr. Winston's evaluation.
 
            
 
                 Accordingly, defendant is liable for payment of the 
 
            independent medical examination performed by Dr. Rosenfeld 
 
            and instructed to reimburse claimant in the amount of $750 
 
            to cover the cost of such evaluation.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In file number 935057:
 
            
 
                 Claimant shall take nothing further from these 
 
            proceedings.
 
            
 
     
 
            
 
            
 
            Page  10
 
            
 
            
 
             
 
            In file number 949383:
 
            
 
                 That defendant pay to claimant seventy-five (75) weeks 
 
            of permanent partial disability benefits at the rate of 
 
            three hundred fifty and 87/100 dollars ($350.87) per week 
 
            commencing December 17, 1990.  
 
            
 
                 That defendant pay claimant seven hundred fifty dollars 
 
            ($750) to cover the cost of an independent medical 
 
            examination pursuant to Iowa Code section 85.39.
 
            
 
                 That defendant receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendant pay accrued amounts in a lump sum.
 
            
 
                 That defendant pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendant pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of October, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Max Schott
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines, Iowa  50311-1540
 
            
 
            Mr. Daniel L. Flaherty
 
            Assistant Polk County Attorney
 
            Room 340, Polk County Office Bldg
 
            111 Court Ave
 
            Des Moines, Iowa  50309-2218
 
            
 
 
            
 
            
 
            
 
                                              51803 52700
 
                                              Filed October 20, 1993
 
                                              Jean M. Ingrassia
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            BOBBY L. STUBBS,    
 
                      
 
                 Claimant,                File Nos. 935057 & 949383
 
                      
 
            vs.                            A R B I T R A T I O N
 
                            
 
            POLK COUNTY,                      D E C I S I O N
 
                       
 
                 Self-Insured,  
 
                 Employer,       
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            51803
 
            Based on claimant's age (51), education (college graduate), 
 
            functional impairment rating (10 percent), ability to return 
 
            to his usual occupation (Polk County jailer), and minimal 
 
            restrictions, it is determined that claimant is 15 percent 
 
            industrially disabled.
 
            
 
            52700
 
            Claimant is entitled to reimbursed in the amount of $750 for 
 
            payment of an independent medical examination despite the 
 
            fact that the report from such examination was excluded from 
 
            the evidence because it was untimely served on defendant.