BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            SUE OLSON,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                   File No. 936192
 
            LAND O'LAKES, INC.,   
 
                                                     A P P E A L
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            AMERICAN MOTORISTS    
 
            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.  The decision of the deputy 
 
            filed July 9, 1993 is affirmed and is adopted as the final 
 
            agency action in this case with the following additional 
 
            analysis:
 
            
 
            Claimant's injury came as a result of repetitious use of her 
 
            hand and arm.  That injury manifested itself when claimant 
 
            was forced to leave work for one week beginning November 13, 
 
            1989.  She attempted to return to work on December 6, 1989 
 
            and continued to work until the plant closed on December 21, 
 
            1989.  Her work in December 1989 was again repetitious use 
 
            of her hands resulting in similar complaints of the 
 
            conditions of her hand and arm.  Clearly, claimant suffered 
 
            an injury on November 13, 1989.  That injury was aggravated 
 
            by the attempted return to work.  Given the chronological 
 
            proximity between the date of injury and the aggravation, it 
 
            cannot be said that the aggravation constituted a new and 
 
            separate injury.  The Iowa Supreme Court has recognized that 
 
            this agency has a "substantial amount of latitude in making 
 
            a determination regarding the date of manifestation since 
 
            this is an inherently fact-based determination."  Oscar 
 
            Mayer Foods Corp. v. Tasler, 483 N.W.2d 824 (Iowa 1992.
 
            In addition, it is clear from the information attached to 
 
            the petition that claimant was alleging an injury to the 
 
            right wrist and hand from repetitive work from October 
 
            through December 1989.  Defendants were aware or should have 
 
            been aware of the issues involved and when the injury might 
 
            have occurred.
 

 
            
 
            Page   2
 
            
 
            
 
               We have observed that with respect to agency 
 
            adjudications, due process requires that a party "be 
 
            informed somehow of the issue involved in order to prevent 
 
            surprise at the hearing and allow an opportunity to 
 
            prepare....  The test is fundamental fairness, not whether 
 
            the notice meets technical rules of common law pleading."  
 
            (Citation omitted)  See also Coghlan v. Quinn Wire & Iron 
 
            Works, 164 N.W.2d 848, 850 (Iowa 1969) ("An application for 
 
            arbitration is not a formal pleading and is not to be judged 
 
            by the technical rules of pleading.")
 
            
 
            Tasler, 483 N.W.2d 824 at 828.
 
            The injury occurred on November 13, 1989 and even if there 
 
            was a subsequent aggravation the following December which 
 
            constituted a "new" injury, this agency could determine the 
 
            defendants' liability for claimant's work-related injury.
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven H. Shindler
 
            Mr. Michael E. Marshall
 
            Attorneys at Law
 
            1000 Equitable Bldg.
 
            Des Moines, Iowa 50309
 
            
 
            Mr. Joseph S. Cortese, II
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, Iowa 50309
 
            
 
 
         
 
 
 
 
 
                                            5-1803.1, 2500, 2700
 
                                            Filed November 24, 1993
 
                                            Byron K. Orton
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         SUE OLSON,       
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                 File No. 936192
 
         LAND O'LAKES, INC.,   
 
                                                   A P P E A L
 
              Employer,   
 
                                                 D E C I S I O N
 
         and         
 
                     
 
         AMERICAN MOTORISTS    
 
         INSURANCE COMPANY,    
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         
 
         5-1803.1
 
         
 
              This was the classic carpal tunnel and cubital tunnel case.  
 
         Claimant's right arm, wrist, and hand were affected.
 
         
 
         2500, 2700
 
         
 
              Claimant had been authorized to treat with the company 
 
         doctor, and with the neurologist who had been a referral from the 
 
         company physician.  The neurologist opined that claimant had 
 
         sustained nothing more than a tendonitis in the right elbow.  He 
 
         ordered conservative treatment.
 
         
 
              Claimant did not respond to the conservative treatment.  She 
 
         continued to experience difficulties with her right arm, wrist, 
 
         and hand.  She requested permission to seek treatment from a 
 
         recognized hand specialist, Arnes Grundberg, M.D.  The requested 
 
         treatment was denied.
 
         
 
              Despite defendants' refusal to grant alternate medical care, 
 
         claimant sought treatment on her own from Dr. Grundberg.  The 
 
         hand specialist also recommended conservative treatment.  Still 
 
         claimant did not respond favorably.  Dr. Grundberg performed 
 
         surgery.  Claimant then progressed in a positive fashion.  Her 
 
         pain was greatly minimized. 
 
         
 
              HELD:  Defendants were liable for the medical expenses 
 
         incurred through Dr. Grundberg's treatment.  The alternate care 
 
         was reasonable and it improved claimant's condition so as to 
 
         mitigate defendants' liability.
 
         
 
         
 
 
         
 
       
 
         
 
         
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
         SUE OLSON,     
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                              File No. 936192
 
         LAND O'LAKES, INC., 
 
                                          A R B I T R A T I O N
 
              Employer, 
 
                                              D E C I S I O N
 
         and       
 
                   
 
         AMERICAN MOTORISTS, 
 
         INSURANCE COMPANY,  
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
                            STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Sue Olson, against her employer, Land O'Lakes, and its 
 
         insurance carrier, American Motorists Insurance Company, 
 
         defendants.  The case was heard on May 28, 1993, at the office of 
 
         the industrial commissioner in Des Moines, Iowa.  The record 
 
         consists of the testimony of claimant.  The record also consists 
 
         of joint exhibits 1-10, claimant's exhibits, 11-15, and 
 
         defendants' exhibits A-F.
 
         
 
                                      ISSUES
 
         
 
              The issues to be determined are:  1) whether there is a 
 
         causal relationship between the work injury and any permanent 
 
         disability; 2) whether claimant is entitled to any healing period 
 
         or to any permanent partial disability benefits; 3) the 
 
         appropriate rate to use, if claimant is entitled to any weekly 
 
         benefits; 4) whether claimant is entitled to medical benefits 
 
         pursuant to section 85.27 of the Iowa Code; and 5) whether 
 
         defendant is entitled to any credit for benefits previously paid 
 
         to claimant.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is a 35-year-old wife and mother of two children.  
 
         She is a 1976 high school graduate.  In addition, claimant has an 
 
         associate of arts degree in management.  At the time of the 
 
         hearing, claimant was employed as a bookkeeper with H and H 
 
         Construction.
 
         
 
              Claimant commenced her employment with defendant-employer on 
 
         October 17, 1989.  She was hired to work at the hourly rate of 
 
         $5.25 per hour.  During the first week of her employment, 
 
         claimant was placed in the packing room where she was assigned 
 
         the duties of a netter.  
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
              Claimant's job responsibilities included:  pulling turkeys 
 
         from the conveyor belt, pushing netting through a tube, and 
 
         around the processed turkey, then twisting, pulling, and pushing 
 
         netting so as to make a loop with the netting.  She repeated the 
 
         same hand movements throughout the course of her shift.  Claimant 
 
         testified she began to experience soreness in her hands and 
 
         wrists for the first time.  She also noticed swelling in the 
 
         hands.
 
         
 
              In week two of her employment, management assigned claimant 
 
         to the eviserator room where the turkeys were processed.  
 
         Claimant gutted turkeys, cleaned gizzards, and placed the 
 
         gizzards onto a cutter.  The position required moving and 
 
         especially twisting.  At times claimant worked with a knife.  She 
 
         testified that it became hard to grip objects, that she was 
 
         having difficulties bending her finger, that she experienced 
 
         severe pain and she took over-the-counter medication for her 
 
         pain.
 
         
 
              On November 13, 1989, claimant met with C. E. Semler, M.D., 
 
         who was also the company physician.  Claimant complained of 
 
         numbness in both her right and left hands.  Dr. Semler removed 
 
         claimant from work for one week.  He diagnosed claimant's 
 
         condition as "ulnar tunnel syndrome." (Joint Exhibit, p. 1-4).
 
         
 
              Claimant returned for follow-up care on November 20, 1989.  
 
         Dr. Semler restricted claimant from working.  He later referred 
 
         claimant to Michael J. Kitchell, M.D., at the McFarland Clinic in 
 
         Ames.  Dr. Kitchell examined claimant.  In a report he forwarded 
 
         to Dr. Semler, Dr. Kitchell opined:
 
         
 
                 On examination her blood pressure was 114/81.  Her 
 
              pulse rate was 84.  She was quite slender, but there 
 
              was no obvious atrophy or deformity in her hands except 
 
              for some mild degenerative arthritic changes in the 
 
              fingers.  She did have a Tinel's sign over the carpal 
 
              tunnel region on the right side, but not in the ulnar 
 
              groove of the elbow.
 
         
 
                 Her neurologic examination revealed only a slight 
 
              diminution to pin prick in the right thumb.  The other 
 
              fingers were normal in sensation.  Her motor 
 
              examination revealed some variable, breakaway type of 
 
              weakness in a number of muscle groups of the arms, but 
 
              there was no consistent weakness noted.  Her reflexes 
 
              were 2t throughout.
 
         
 
                 Her nerve conduction velocity testing report was 
 
              carried back to your office.  To reiterate, her right 
 
              median motor, right median sensory, and right ulnar 
 
              sensory values were all perfectly within normal limits.  
 
         
 
                 My impression, therefore, is that Sue does not have 
 
              any evidence of a carpal tunnel syndrome or an ulnar 
 
              neuropathy.  I do think her symptoms are related to 
 
              musculoskeletal factors, probably a tendinitis.
 
         
 
              (Jt. Ex. 2-2, 2-3).
 
         
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
              In a report to claimant's attorney, Dr. Kitchell opined:
 
         
 
                 Her nerve conduction velocity testing was 
 
              essentially normal.  I felt that she most likely had 
 
              some musculoskeletal problems, probably a tendonitis 
 
              involving her flexor tendons.  I am not aware of 
 
              whether she was off work after I saw her, though 
 
              apparently she had been off work for about 2 weeks 
 
              before I evaluated her.  I did not feel that she had 
 
              any definite injury from her work, though her symptoms 
 
              may have been aggravated by her work.  The type of 
 
              symptoms that she had may have resolved by now, so I 
 
              cannot say anything at this point about how the injury 
 
              may affect her quality of life.  I would suggest 
 
              finding out from Dr. Semler exactly what dates he had 
 
              released her to return to work, since I advised her to 
 
              check back with him for follow-up.  
 
         
 
              (Jt. Ex. 2-5).
 
         
 
              Claimant returned to work on December 6, 1989.  A member of 
 
         the management team assigned claimant to work on the house 
 
         inspection line.  Her duties consisted of inserting her hand into 
 
         a bird and cleaning out the liver, and kidneys, and then throwing 
 
         the insides into a waste can.  Claimant testified that her pain 
 
         intensified.  She described the process as much harder than what 
 
         she had experienced on previous jobs.  Claimant continued to work 
 
         until the plant closed on December 21, 1989.
 
         
 
              Besides her wrist, hand and arm complaints, claimant was 
 
         treating with Michael Taylor, M.D., for an unrelated condition.  
 
         Claimant was treated for depression.  In the course of his 
 
         treatment, Dr. Taylor referred claimant to A.B. Grundberg, M.D., 
 
         an orthopedic surgeon.  Claimant testified that she knew 
 
         defendant-employer did not authorize Dr. Grundberg as a treating 
 
         physician.  Nevertheless, claimant desired an examination and 
 
         evaluation from him.
 
         
 
              Dr. Grundberg examined and evaluated claimant's condition 
 
         with respect to the right arm, wrist, hand, and fingers.  Dr. 
 
         Grundberg wrote the following in his office note of January 2, 
 
         1990:
 
         
 
                 Grip right is 25, left 55; Pinch right 4, left 5.  
 
              The patient has visible swelling over the dorsum of the 
 
              thumb, index, and long finger metacarpals.  This is of 
 
              a moderate nature.  There is a positive Tinel's sign at 
 
              the wrist and causes tingling in the little finger and 
 
              there is also tingling proximal to her carpal tunnel 
 
              with the Tinel's sign.  Phalen's test causes pain over 
 
              the dorsum of the index metacarpal.  The patient is 
 
              tender over the ulnar nerve at the elbow and the 
 
              Tinel's sign there is positive.
 
         
 
              An EMG, done by Dr. Kitchell in Ames on 12/4/89, revealed no 
 
         carpal tunnel syndrome and no compression of the ulnar nerve at 
 
         the elbow.
 
         
 
              IMPRESSION:  1.  Probable left carpal and cubital tunnel 
 
         syndrome in spite of the normal EMG.  
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
              2.  HX of depression, now under treatment.
 
         
 
              DISCUSSION:  I explained to the patient the nature of the 
 
         problem.  I told her that since this problem started at work and 
 
         she was doing repetitive work at the time that the problem 
 
         started, that I think it is a work related problem, even though 
 
         it started a very short period of time after she began her work 
 
         at Land-O-Lakes.  I sent her for an EMG evaluation.  She will 
 
         stay off work in the meantime (Jt. Ex. 4-1). 
 
         
 
              Claimant also sought a second opinion from Paul K. Ho, M.D.  
 
         The physician examined claimant on January 30, 1990.  In his 
 
         progress notes, Dr. Ho wrote:
 
         
 
                 O:  Positive Tinel's with hand pain at carpal 
 
              tunnel.  Positive Tinel's at cubital tunnel with distal 
 
              ulna digit numbness.  Recreation of right hand symptoms 
 
              with Roos maneuver.  Adson's test and Wright's test 
 
              negative.  EMG/NCV 1/17/90 showed very mild right ulna 
 
              nerve neuropathy near the elbow.
 
         
 
                 X-ray Report:  AP lateral right hand is within 
 
              normal limits.
 
         
 
                 A:  1.  Right cubital tunnel syndrome-mild.  2.  
 
              Right carpal tunnel syndrome--normal EMGs.  354.0  3.  
 
              R/o thoracic outlet component.
 
         
 
                 P:  I discussed the patient's problem with her.  
 
              Surgical intervention at this time carries a high 
 
              probability of continued symptoms.  I feel that a 
 
              further trial of conservative therapy is indicated at 
 
              present.  Thoracic outlet exercise program should be 
 
              instituted.  She should be advised to stop smoking.  
 
              Further attempts should be made to sort out her 
 
              multiple medications for depression.  After the above 
 
              has been instituted, further EMG should be obtained.  
 
              At present, I do not feel that she should undergo 
 
              surgery for her right hand.  
 
         
 
              (Jt. Ex. 3-1).  
 
         
 
              Claimant continued to experience difficulties with her right 
 
         hand and arm.  Dr. Grundberg continued to treat claimant.  First, 
 
         he treated her in a conservative fashion.  Claimant exhibited no 
 
         improvement.  Consequently, claimant underwent a "decompression 
 
         of the ulnar nerve, right elbow decompression of right carpal 
 
         tunnel", on April 4, 1990 (Jt. Ex. 4-3).
 
         
 
              Claimant participated in follow-up care with Dr. Grundberg.  
 
         She testified that her condition was much improved after the 
 
         surgery was performed.  Claimant also testified that she had not 
 
         received relief from the conservative treatments prescribed by 
 
         Dr. Semler, Dr. Kitchell, or Dr. Ho.  She testified that she can 
 
         now lead "a normal life."  However, she testified she would never 
 
         be able to return to work in a processing plant.  
 
         
 
              Dr. Grundberg released claimant to return to work on June 4, 
 
         1990 (Jt. Ex. 4-3).  Since the plant had already closed, claimant 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         was unable to return to her position on the turkey processing 
 
         line.  
 
         
 
              The parties stipulated at the hearing that if claimant is 
 
         entitled to any permanent partial disability benefits, then the 
 
         benefits should have commenced on June 4, 1990.  The parties also 
 
         stipulated that if a permanent disability is determined, the 
 
         disability is a scheduled member disability.  
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The party who would suffer a loss if an issue were not 
 
         established has the burden of proving that issue by a 
 
         preponderance of the evidence.  Iowa Rule Appellate Procedure 
 
         14(f).  
 
         
 
              The first disputed issue deals with the issue of proximate 
 
         cause.  Claimant alleges that her right carpal tunnel syndrome 
 
         and her right cubital tunnel syndrome is the result of her 
 
         employment at defendant's establishment.  Defendants deny there 
 
         is any causal connection between the work injury and the 
 
         condition.
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              A cause is proximate if it is a substantial factor in 
 
         bringing about the result.  It need not be the only cause.  
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
         1980).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955). 
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The medical evidence supports a conclusion of proximate 
 
         cause between the work injury on November 13, 1989 and claimant's 
 
         right carpal tunnel syndrome and right cubital tunnel syndrome.  
 
         Dr. Shemler opines that the condition is work related.  He is the 
 
         company physician (Ex. 1, p. 7).  He expressly states, " This was 
 
         caused because of her work at Land of Lakes".
 
         
 
              In addition to the opinion of Dr. Shemler, there is the 
 
         opinion of Dr. Grundberg.  He too opines that the cause of her 
 
         condition is work related (Ex. 4, p. 4).
 
         
 
              The undersigned deputy finds and concludes that the injury 
 
         on November 13, 1989 is a cause of impairment which is currently 
 
         present in claimant's right hand and arm.  
 
         
 
              The next issue to address is whether claimant is entitled to 
 
         any permanent partial disability benefits.  The opinion of the 
 
         supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
         1121, 125 N.W.2d 251 (1963), cited with approval a decision of 
 
         the industrial commissioner for the following proposition:
 
         
 
                 Disability * * * as defined by the Compensation Act 
 
              means industrial disability, although functional 
 
              disability is an element to be considered .... In 
 
              determining industrial disability, consideration may be 
 
              given to the injured employee's age, education, 
 
              qualifications, experience and his inability, because 
 
              of the injury, to engage in employment for which he is 
 
              fitted. * * * *
 
         
 
              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 he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Dr. Grundberg has opined that claimant has a permanent 
 
         partial impairment.  His evaluation is contained in his progress 
 
         note of August 3, 1990, where he writes:
 
         
 
                 She still has pain in the hand but it is better than 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
              it was.  It no longer wakes her at night.  The numbness 
 
              is better as well.  Grip right is 35, left 60; Pinch 
 
              right 5, left 7.
 
         
 
                 Her permanent impairment is 5% of the right arm due 
 
              to residual from right cubital tunnel syndrome and 3% 
 
              of the right arm due to residual from right carpal 
 
              tunnel syndrome.  This is a total of 8% of the right 
 
              arm.
 
         
 
              (Ex. 4, p. 5).
 
         
 
              Dr. Grundberg's testimony is uncontroverted relative to the 
 
         issue of permanent impairment.  Dr. Kitchell testified by way of 
 
         deposition.  However, Dr. Kitchell only examined claimant on one 
 
         occasion and that was in December of 1989.  He had no information 
 
         relative to claimant's condition immediately prior to the surgery 
 
         or subsequent to it.  In fact, Dr. Kitchell testified to the 
 
         following with respect to claimant's condition:
 
         
 
                 q.  Do you have an opinion, based upon a reasonable 
 
              degree of medical certainty, if in fact the surgical 
 
              intervention that took place in this case actually 
 
              prevented her from making a complete recovery?
 
         
 
                 A.  I have not seen the patient since December of 
 
              1989, and I think there is too much that could have 
 
              gone on at the time of the surgery.  For example, the 
 
              patient may have had some damage as a result of the 
 
              surgery.  So I'm really not able to give a firm opinion 
 
              about what may have happened after I saw her, but it is 
 
              possible that her condition could have worsened as a 
 
              result of the surgery.
 
         
 
              (Ex. 9, p. 13).
 
         
 
              Dr. Kitchell's opinions are not accorded as much weight as 
 
         is the opinion of Dr. Grundberg.  Dr. Grundberg specializes in 
 
         hand surgery and he has treated several thousand cases of carpal 
 
         tunnel and hand problems.  Dr. Grundberg has also treated 
 
         claimant on a number of occasions.  He has had more than one 
 
         opportunity to examine and observe claimant.  Furthermore, Dr. 
 
         Grundberg has administered several diagnostic tests in order to 
 
         assess claimant's condition.  On the other hand, Dr. Kitchell has 
 
         only seen claimant in December of 1989.  Basically, all Dr. 
 
         Kitchell has done is order an EMG of claimant's right arm and 
 
         hand.
 
         
 
              Therefore, in light of the foregoing, it is the 
 
         determination of the undersigned that claimant has a permanent 
 
         partial disability of eight percent to the arm.  Using section 
 
         85.34(2)(m), claimant is entitled to 20 weeks of compensation.  
 
         The weeks are calculated as:  250 weeks x .08 percent equals 20 
 
         weeks.
 
         
 
              The next issue to address is the issue of healing period 
 
         benefits.  If a claimant contends he has industrial disability he 
 
         has the burden of proving his injury results in an ailment 
 
         extending beyond the scheduled loss.  Kellogg v. Shute and Lewis 
 
         Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
              Healing period may be ended at the time a physician states 
 
         the condition has remained unchanged and he provides an 
 
         impairment rating.  Hungate v. Lear Sigler, Vol. II-1 State of 
 
         Iowa Industrial Commissioner Decisions 196 (App. Decn. 1985).
 
         
 
              Generally, healing period benefits accrue from the date of 
 
         the injury.  Compensation payments are to be made beginning on 
 
         the eleventh day after injury.  Interest is to be paid on 
 
         benefits which are due but not paid.  Iowa Code section 85.30.  
 
         Healing period benefits can be interrupted or intermittent.  Teel 
 
         v. McCord, 394 N.W.2d 405 (Iowa 1986).  
 
         
 
              In the case before this deputy, claimant's healing period 
 
         benefits were interrupted by a return to work.  It is clear to 
 
         the undersigned that claimant is owed healing period benefits for 
 
         the following period:  November 13, 1989 through December 5, 
 
         1989.  This is a period of 3.143 weeks.  Claimant returned to 
 
         work on December 6, 1989 and she worked through December 21, 
 
         1989, the day the plant closed.  Claimant is also entitled to 
 
         healing period benefits from January 2, 1990, the first day she 
 
         saw Dr. Grundberg, through June 3, 1990.  Dr. Grundberg 
 
         determined claimant could return to work on June 4, 1990.  This 
 
         is a period of 21.857 weeks.  Defendants are responsible for 
 
         healing period benefits for those two periods, less any benefits 
 
         previously paid, plus the applicable interest on the unpaid 
 
         amounts.  
 
         
 
              The third issue to address is the appropriate rate to be 
 
         used to calculate claimant's weekly benefit rate.  Section 85.36 
 
         of the Iowa Code provides in relevant portion:
 
         
 
                 The basis of compensation shall be the weekly 
 
              earnings of the injured employee at the time of the 
 
              injury.  Weekly earnings means gross salary, wages, or 
 
              earnings of an employee to which such employee would 
 
              have been entitled had the employee worked the 
 
              customary hours for the full pay period in which the 
 
              employee was injured as regularly required by the 
 
              employee's employer for the work or employment for 
 
              which the employee was employed, computed or determined 
 
              as follows and then rounded to the nearest dollar.
 
         
 
                 6.  In the case of an employee who is paid on a 
 
              daily, or hourly basis, or by the output of the 
 
              employee, the weekly earnings shall be computed by 
 
              dividing by thirteen the earnings, not including 
 
              overtime or premium pay, of said employee earned in the 
 
              employ of the employer in the last completed  period of 
 
              thirteen consecutive calendar weeks immediately 
 
              preceding the injury.
 
         
 
                 7.  In the case of an employee who has been in the 
 
              employ of the employer less than thirteen calendar 
 
              weeks immediately preceding the injury, the employee's 
 
              weekly earnings shall be computed under subsection 6, 
 
              taking the earnings, not including overtime or premium 
 
              pay, for such purpose to be the amount the employee 
 
              would have earned had the employee been so employed by 
 
              the employer the full thirteen calendar weeks 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
              immediately preceding the injury and had worked, when 
 
              work was available to other employees in a similar 
 
              occupation.
 
         
 
              Claimant's weekly benefit rate is calculated as follows: 
 
         
 
              period ending 11-4-89  80 hours x 45.25 per hour =  $420.00
 
         
 
              period ending 11-18-89 48.5 hours x 5.25 per hour = $254.62
 
         
 
                       TOTAL = $674.46
 
         
 
                     4 weeks = $168.86 gross weekly wages
 
         
 
              Then the Guide to Iowa Workers' Compensation Claim Handling, 
 
         July 1, 1989, is consulted for the weekly benefits rate for a 
 
         married person who is entitled to three exemptions.  The Guide 
 
         establishes the weekly benefit rate as $123.42 per week.
 
         
 
              The next issue which is disputed is the issue dealing with 
 
         medical benefits, and whether certain medical expenses are work 
 
         related.  Section 85.27 of the Iowa Code provides in relevant 
 
         portion that:
 
         
 
                The employer, for all injuries compensable under this 
 
              chapter of chapter 85A, shall furnish reasonable 
 
     
 
         
 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
              surgical, medical, dental, osteopathic, chiropractic, 
 
              podiatric, physical rehabilitation, nursing, ambulance 
 
              and hospital services and supplies therefor and shall 
 
              allow reasonably necessary transportation expenses 
 
              incurred for such services.  The employer shall also 
 
              furnish reasonable and necessary crutches, artificial 
 
              members and appliances but shall not be required to 
 
              furnish more than one set of permanent prosthetic 
 
              devices.
 
         
 
              The employer has the right to choose the provider of care 
 
         except where the employer has denied liability for the injury.  
 
         Section 85.27.  Holbert v. Townsend Engineering Co., 
 
         Thirty-second Biennial Report of the Industrial Commissioner 78 
 
         (Review-reopen 1975). 
 
         
 
              Unauthorized treatment which improves an employee's 
 
         condition and ultimately may mitigate the employer's liability 
 
         may subsequently be found reasonable and necessary for treatment 
 
         of an injury.  Butcher v. Valley Sheet Metal, IV Iowa Industrial 
 
         Commissioner Report 49 (App. Decn., 1983); Rittgers v. United 
 
         Parcel Service, III Iowa Industrial Commissioner Report 210 (App. 
 
         Decn., 1982); Hutchinson v. American Freight Systems, Inc., I-1 
 
         Iowa Industrial Commissioner Report 94 (App. Decn., 1984).
 
         
 
              Clearly, defendants in this action, authorized care with Dr. 
 
         Semler and Dr. Kitchell.  Claimant requested authorized care from 
 
         Dr. Grundberg, who is a recognized hand specialist in the Central 
 
         Iowa area.  She was denied alternate medical care with Dr. 
 
         Grundberg.  However, claimant proceeded with treatment from Dr. 
 
         Grundberg, despite defendants' refusal to grant her the requested 
 
         care.  Dr. Grundberg ultimately recommended surgery.   The 
 
         surgery was a reasonable procedure, given claimant's complaints 
 
         and the doctor's findings.  The surgery improved claimant's 
 
         condition.  Claimant testified that the surgical procedure 
 
         relieved her pain.  She also testified that she can now lead "a 
 
         normal life."  The surgery was reasonable and necessary.  The 
 
         medical treatment assisted in mitigating defendants' liability, 
 
         while affording claimant relief from her work injury.  Defendants 
 
         are liable for the following medical expenses:
 
         
 
              Iowa Methodist Medical Center
 
              4-04-90           $1,001.08
 
              1-17-90               60.00
 
                                $1,061.08
 
         
 
              Des Moines Orthopaedic Surgeons
 
              Dr. Arnis Grundberg
 
              1-02-90           $   95.00
 
              1-19-90              160.00
 
              3-02-90               30.00
 
              4-04-90            1,565.00
 
              4-13-90               15.00
 
              8-03-90               40.00
 
              11-06-90              50.00
 
              12-17-91              85.00
 
                                $2,040.00
 
         
 
     
 
         
 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         Rehabilitation Medicine Assoc.
 
              1-17-90           $  189.00
 
                                $  189.00
 
         
 
              Associated Anesthesiologist, P.C.
 
              4-04-90           $  297.00
 
                                $  297.00
 
         
 
              McFarland Clinic
 
              Dr. Michael Kitchell, M.D.
 
                                $  198.00
 
                                $  198.00
 
         
 
              Veakel Pharmacy
 
              11-14-89          $   21.27
 
              11-16-89              28.02
 
              12-12-89              28.02
 
                                $   77.31
 
         
 
              The total medical expenses are $3,862.39.  Defendants shall 
 
         make payment to the necessary medical providers.
 
         
 
                                      ORDER
 
         
 
              THEREFORE,  IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant twenty (20) weeks of 
 
         permanent partial disability benefits at the rate of one hundred 
 
         twenty-three and 43/100 dollars ($123.43) per week commencing on 
 
         June 4, 1990.
 
         
 
              Defendants shall also pay unto claimant twenty-five point 
 
         one four three (25.143) weeks of healing period benefits for the 
 
         period from November 13, 1989 through December 5, 1989, and from 
 
         January 2, 1990 through June 3, 1990; the benefits shall be paid 
 
         at the weekly benefit rate of one hundred twenty-three and 42/100 
 
         dollars ($123.42) per week.
 
         
 
              Defendants shall also pay medical expenses as aforementioned 
 
         and in the total sum of three thousand eight hundred sixty-two 
 
         and 39/100 dollars ($3,862.39).
 
         
 
              Accrued benefits shall be paid in a lump sum together with 
 
         statutory interest at the rate of 10 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 following costs pursuant to rule 
 
         343 IAC 4.33:
 
         
 
              Deposition Dr. Grundberg   $130.30
 
              Filing fee                   65.00
 
              Total                      $195.30
 
         
 
              Defendants shall file a claim activity report as requested 
 
         by the division and pursuant to rule 343 IAC 3.1.
 
         
 
              Signed and filed this ____ day of July, 1993.
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Steven H. Shindler 
 
         Attorney at Law
 
         1000  Equitable Bldg.
 
         Des Moines, IA  50309
 
         
 
         Mr. Joseph Cortese, II
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, IA  50309
 
         
 
 
            
 
        
 
            
 
            
 
            
 
                                               5-1803.1, 2500, 2700
 
                                               Filed July 9, 1993
 
                                               Michelle A. McGovern
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            SUE OLSON,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 936192
 
            LAND O'LAKES, INC., 
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            AMERICAN MOTORISTS, 
 
            INSURANCE COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1803.1
 
            
 
                 This was the classic carpal tunnel and cubital tunnel 
 
            case.  Claimant's right arm, wrist, and hand were affected.
 
            
 
            2500, 2700
 
            
 
                 Claimant had been authorized to treat with the company 
 
            doctor, and with the neurologist who had been a referral 
 
            from the company physician.  The neurologist opined that 
 
            claimant had sustained nothing more than a tendonitis in the 
 
            right elbow.  He ordered conservative treatment.
 
            
 
                 Claimant did not respond to the conservative treatment.  
 
            She continued to experience difficulties with her right arm, 
 
            wrist, and hand.  She requested permission to seek treatment 
 
            from a recognized hand specialist, Arnes Grundberg, M.D.  
 
            The requested treatment was denied.
 
            
 
                 Despite defendants refusal to grant alternate medical 
 
            care, claimant sought treatment on her own from Dr. 
 
            Grundberg.  The hand specialist also recommended 
 
            conservative treatment.  Still claimant did not respond 
 
            favorably.  Dr. Grundberg performed surgery.  Claimant then 
 
            progressed in a positive fashion.  Her pain was greatly 
 
            minimized. 
 
            
 
                 HELD:  Defendants were liable for the medical expenses 
 
            incurred through Dr. Grundberg's treatment.  The alternate 
 
            care was reasonable and it improved claimant's condition so 
 
            as to mitigate defendants' liability.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         _________________________________________________________________
 
                     :
 
         WILLIAM E. AGNEW,     :
 
                     :
 
              Claimant,   :
 
                     :
 
         vs.         :
 
                     :       File No. 936267
 
         PEAVEY GRAIN COMPANY,      :
 
                     :          A P P E A L
 
              Employer,   :
 
                     :        D E C I S I O N
 
         and         :
 
                     :
 
         SEDGWICK JAMES,       :
 
                     :
 
              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.
 
         issue
 
         Those portions of the proposed agency decision pertaining to 
 
         issues not raised on appeal are adopted as a part of this appeal 
 
         decision.  The issue raised on appeal is whether the deputy 
 
         commissioner erred in finding a 60 percent loss of earning 
 
         capacity.
 
         findings of fact
 
         The findings of fact contained in the proposed agency decision 
 
         filed May 29, 1992 are adopted as set forth below.  Segments 
 
         designated by asterisks (*****) indicate portions of the language 
 
         from the proposed agency decision that have been intentionally 
 
         deleted and do not form a part of this final agency decision.
 
         *****
 
         Claimant worked for Peavey from January 1989 until the date of 
 
         injury herein as a grain hopper loader and car puller.  His 
 
         duties consisted of loading railroad cars with bulk grain.  
 
         On or about December 1, 1989, claimant injured his low back while 
 
         attempting to open a heavy steel door on a railroad car.  
 
         Claimant experienced the immediate onset of low back and leg 
 
         pain.  Claimant's credible testimony established that he reported 
 
         the injury immediately after the injury and was allowed to leave 
 
         to seek medical attention only after he finished loading the 
 
         railroad car.  He was not initially referred for medical 
 
         treatment to any physician by Peavey management.  
 
         Claimant sought treatment on the day of injury from Charles 
 
         Pigneri, D.O., who diagnosed acute lumbar disc syndrome with 
 
         right leg radiculopathy.  He then was referred to a neurosurgeon, 
 
         Behrouz Rassekh, M.D.  Dr. Rassekh reported that his studies 
 
         revealed a bulging disc and he diagnosed lumbosacral strain and 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         degenerative disc disease.  Dr. Rassekh treated claimant with 
 
         physical therapy, restricted activity and medication.  Claimant 
 
         then attempted light duty work but soon returned to Dr. Pigneri 
 
         and was then referred in February 1990 to Michael J. Morrison, 
 
         M.D., an orthopedic surgeon.  Dr. Morrison ordered a myelogram.  
 
         When the myelogram came back normal, claimant was referred back 
 
         to Dr. Pigneri.  Dr. Pigneri then treated claimant through 
 
         November 1990 with physical therapy, analgesics, ultrasound, 
 
         muscle relaxers, and manipulative therapy.  Claimant improved but 
 
         the low back and leg pain continued.  
 
         In November and December 1990, claimant was evaluated and treated 
 
         by Dennis Green, D.C., with chiropractic therapy and the use and 
 
         assistance of a thermogram, a test to reveal locations of pain 
 
         with changes in skin temperature.  
 
         On January 14, 1991, defendants asserted their right to choose 
 
         the care and directed claimant's care to Dr. Morrison.  Dr. 
 
         Morrison then treated claimant for persistent low back and leg 
 
         pain until June 12, 1991, at which time he opined that claimant 
 
         reached maximum healing.  The doctor released claimant to work 
 
         but only with a permanent restriction against frequent bending 
 
         over to lift over 30 pounds.  He also recommended that claimant 
 
         engage in no excessive or recurrent crawling, kneeling or 
 
         squatting.  Dr. Pigneri also prohibits repetitive bending, 
 
         twisting, turning, or lifting in excess of 25 pounds.  According 
 
         to his physicians, claimant's pain will continued indefinitely 
 
         requiring periodic medical care and treatment.
 
         Although Dr. Pigneri found some evidence of a prior spinal injury 
 
         in his x-rays, no other physician mentions such a finding.  
 
         Claimant denies any prior injury or back problems and Dr. Pigneri 
 
         states that such a prior injury may only have resulted in mild if 
 
         any pain.  Claimant's back screening during his preemployment 
 
         physical before working at Peavey in February 1989 revealed no 
 
         back problems or abnormalities.  It is found that claimant had no 
 
         prior back injuries or impairment.
 
         It is found that the work injury of December 1, 1989 was a cause 
 
         of a significant permanent impairment to the body as a whole.  
 
         ***** As a result of the injury, claimant is restricted to light 
 
         duty or lifting under 30 pounds for the rest of his life.  
 
         Claimant's past employments as a cement construction worker, auto 
 
         mechanic and grain elevator worker always required heavy manual 
 
         labor.  The work injury precludes a return to work to the jobs 
 
         for which claimant is best suited given his employment history.  
 
         A return to work at Peavey in any capacity is precluded by 
 
         layoffs.  
 
         The extent of claimant's formal education before the injury was 
 
         not shown in the record.  It has been shown that he is capable of 
 
         successful classroom work. He received 2200 hours of instruction 
 
         in auto mechanics in the 1960's.  Since his release to work, 
 
         claimant sought employment at Job Service and was referred to the 
 
         Iowa Department of Vocational Rehabilitation.  This agency tested 
 
         claimant's aptitudes and recommended retraining as an auto damage 
 
         appraiser for an insurance company or as a paralegal.  Claimant 
 
         chose paralegal and is now attending classes at a community 
 
         college to qualify as a paralegal.  However, counselors have only 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         a guarded prognosis for successful completion of this retraining 
 
         due to continued pain problems which affect his ability to study.  
 
         His performance is poor in some subjects.  Salaries for either of 
 
         these two job alternatives range from $12,000 to $22,000 
 
         annually.  Although claimant was earning $22,000 at the time of 
 
         injury, counselors expect claimant to initially fall in the 
 
         minimum wage or $12,000 annual income category.
 
         Counselors have stated that they feel claimant is well motivated 
 
         to return to work and genuinely desires to do so.  *****
 
         *****
 
         It is found that defendant chose to acquiesce in claimant's 
 
         choice of physicians prior to January 14, 1991.
 
         With reference to weekly rate, claimant testified that he has one 
 
         dependant other than himself for purposes of filing his tax 
 
         returns.  Claimant's supervisor at Peavey testified at hearing.  
 
         He initially stated that in the 13 week period before the injury, 
 
         claimant's gross earnings averaged $409.21 per week.  However, he 
 
         later admitted that claimant customarily worked a full 40 hour 
 
         work week and earned $10.39 per hour.  The difference in the 
 
         earlier figure was due to absences from work.  It is found that 
 
         claimant's representative week was a full 40 hour work week and 
 
         that his gross earnings for rate purposes herein was $415.60 per 
 
         week.
 
         It is found that claimant's present permanent disability is 
 
         preventing a return to gainful employment.  It is further found 
 
         that his paralegal training courses will lead to rehabilitation 
 
         if successfully completed.
 
         conclusions of law
 
         The conclusions of law contained in the proposed agency decision 
 
         filed May 29, 1992 are adopted as set forth below.  Segments 
 
         designated by asterisks (*****) indicate portions of the language 
 
         from the proposed agency decision that have been intentionally 
 
         deleted and do not form a part of this final agency decision.  
 
         Segments designated by brackets ([ ]) indicate language that is 
 
         in addition to the language of the proposed agency decision.
 
         I.  Claimant must establish by a preponderance of the evidence 
 
         the extent of weekly benefits for permanent disability to which 
 
         claimant is entitled.  As the claimant has shown that the work 
 
         injury was a cause of permanent physical impairment or limitation 
 
         upon activity involving the body as a whole, the degree of 
 
         permanent disability must be measured pursuant to Iowa Code 
 
         section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or  restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  Examination of several 
 
         factors determines the extent to which a work injury and a 
 
         resulting medical condition caused an industrial disability.  
 
         These factors include the employee's medical condition prior to 
 
         the injury, immediately after the injury and presently; the situs 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         of the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         [Claimant's industrial disability must be assessed.  Claimant, as 
 
         a result of his work injury, has a low back condition that has 
 
         resulted in some amount of permanent impairment.  Claimant has 
 
         work restrictions as a result of his injury.  Claimant's work 
 
         history is limited to manual labor.  Claimant is now unable to do 
 
         many manual labor jobs as a result of his work injury.
 
         Claimant is 45 years old.  Claimant is young enough to retrain 
 
         for another profession, and in fact claimant is retraining to 
 
         become a paralegal.  It is speculative to predict what claimant's 
 
         earnings as a paralegal will be.  Claimant's industrial 
 
         disability is to be measured at this point in time and not at 
 
         some point of time in the future.  Claimant's present earnings 
 
         have decreased substantially because of his work injury.
 
         Based on these and all other appropriate factors for determining 
 
         industrial disability, claimant is determined to have an 
 
         industrial disability of 45 percent.]
 
         *****
 
         The parties dispute as to rate of compensation centered around 
 
         the calculation of gross wages.  As claimant's hours varied from 
 
         week to week, the previous 13 weeks, including absences, was 
 
         utilized by defendants to calculate the rate.  However, this 
 
         agency has consistently held that weeks which contain absences 
 
         due to illness, vacation or other causes are not representative 
 
         weeks and should be excluded from the calculation.  Lewis v. 
 
         Aalf's Mfg. Co. 1 Iowa Indus. Comm'r Report 206 (Appeal Decision 
 
         1980).  Absent the absences, claimant's customary work week was a 
 
         full 40 hours and the gross rate will be calculated accordingly.  
 
         Given single status, entitlement to two exemptions and a gross 
 
         rate of $415.60, the commissioner's rate booklet for FY 90 sets 
 
         the weekly rate in the amount of $257.04.
 
          II.  Pursuant to Iowa Code section 85.27, claimant is entitled 
 
         to payment of reasonable medical expenses incurred for treatment 
 
         of a work injury.  Claimant is entitled to an order of 
 
         reimbursement if he has paid those expenses.  Otherwise, claimant 
 
         is entitled only to an order directing the responsible defendants 
 
         to make such payments directly to the provider.  See Krohn v. 
 
         State, 420 N.W.2d 463 (Iowa 1988).
 
         In the case at bar, the dispute was over authorization.  However, 
 
         a right to choose the care also carries with it the right to 
 
         offer the care.  In this case, defendants defaulted and did not 
 
         direct claimant to any particular care until January 1991.  
 
         Consequently, they are liable for claimant's care that he chose 
 
         prior to that time.
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         III.  Iowa Code section 85.70 provides a small vocational 
 
         rehabilitation benefit of $20.00 per week for a maximum of 26 
 
         weeks under certain conditions.  Given the findings as to 
 
         permanent disability and claimant's current inability to return 
 
         to work due to this disability, claimant is entitled to these 
 
         benefits as well. 
 
         WHEREFORE, the decision of the deputy is affirmed and modified.
 
         order
 
         THEREFORE, it is ordered:
 
         That defendants shall pay to claimant two hundred twenty-five 
 
         (225) weeks of permanent partial disability benefits at a rate of 
 
         two hundred fifty-seven and 04/l00 dollars ($257.04) per week 
 
         from April 9, 1990.
 
         That defendants shall pay to claimant additional healing period 
 
         benefits for the stipulated period of time at the correct rate of 
 
         two hundred fifty-seven and 04/l00 dollars ($257.04) per week.
 
         That defendants shall pay the medical expenses listed in the 
 
         prehearing report.  Claimant shall be reimbursed for any of these 
 
         expenses paid by him.  Otherwise, defendants shall pay the 
 
         provider directly along with any lawful late payment penalties 
 
         imposed upon the account by the provider.
 
         That defendants shall pay accrued weekly benefits in a lump sum 
 
         and shall receive credit against this award for all benefits 
 
         previously paid.  
 
         That defendants shall pay to claimant a maximum of twenty-six 
 
         (26) weeks of vocational rehabilitation benefits at the rate of 
 
         twenty and 00/l00 dollars ($20.00) per week for each week he 
 
         attended courses at Western Community College as a part of the 
 
         paralegal training program.
 
         That defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30. 
 
         
 
              That defendants shall pay the costs of this matter including 
 
         transcription of the hearing and shall reimburse claimant for the 
 
         filing fee if previously paid by claimant.
 
         That defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to rule 343 IAC 
 
         3.1.
 
         Signed and filed this ____ day of February, 1993.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John A. Rodenburg
 
         Attorney at Law
 
         100 Park Building
 
         500 Willow Avenue
 
         Council Bluffs, Iowa  51503
 
         
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Mr. John F. Thomas
 
         Attorney at Law
 
         One Central Park Plaza
 
         222 South 50th Street #1100
 
         Omaha, Nebraska  68102
 
         
 
         Mr. James A. Thomas
 
         Attorney at Law
 
         10 North Walnut
 
         Glenwood, Iowa  51534
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803
 
            Filed February 26, 1993
 
            Byron K. Orton
 
            LPW
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            WILLIAM E. AGNEW,     :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :       File No. 936267
 
            PEAVEY GRAIN COMPANY,      :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            SEDGWICK JAMES,       :
 
                        :
 
                 Insurance Carrier,    :
 
                 Defendants.      :
 
            ____________________________________________________________
 
            _____
 
            
 
            1803
 
            Claimant, age 45, with a back injury and restrictions not to 
 
            lift over 30 pounds repetitively, unable to return to manual 
 
            labor, presently retraining to become a paralegal, awarded 
 
            45 percent industrial disability.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM E. AGNEW,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 936267
 
            PEAVEY GRAIN COMPANY,         :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            SEDGWICK JAMES,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by William 
 
            E. Agnew, claimant, against Peavey Grain Company, employer, 
 
            hereinafter referred to as Peavey, and Sedgwick James, 
 
            insurance carrier, defendants, for workers' compensation 
 
            benefits as a result of an alleged injury on December 1, 
 
            1989.  On April 14, 1992, a hearing was held on claimant's 
 
            petition and the matter was considered fully submitted at 
 
            the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.  
 
            All objections to evidence received at hearing are over
 
            ruled.                        
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On December 1, 1989 claimant received an injury 
 
            arising out of and in the course of employment with Peavey.
 
            
 
                 2. Claimant is entitled to temporary total or healing 
 
            period benefits from December 1, 1989 through April 8, 1990.
 
            
 
                 3. If the injury is found to have caused permanent dis
 
            ability, the type of disability is an industrial disability 
 
            to the body as a whole.
 
            
 
                 4.  If permanent partial disability benefits are 
 
            awarded, they shall begin as of April 9, 1990.
 
            
 
                 5.  At the time of injury, claimant was single. 
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 6.  It was stipulated that the providers of the 
 
            requested medical expenses would testify as to their reason
 
            ableness and defendants are not offering contrary evidence.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                 I.  The extent of claimant's entitlement to disability 
 
            benefits, including the proper weekly rate of compensation.
 
            
 
                 II.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                 III.  The extent of claimant's entitlement to voca
 
            tional rehabilitation benefits under Iowa Code section 
 
            85.70.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From his demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant worked for Peavey from January 1989 until the 
 
            date of injury herein as a grain hopper loader and car 
 
            puller.  His duties consisted of loading railroad cars with 
 
            bulk grain.  
 
            
 
                 On or about December 1, 1989, claimant injured his low 
 
            back while attempting to open a heavy steel door on a rail
 
            road car.  Claimant experienced the immediate onset of low 
 
            back and leg pain.  Claimant's credible testimony estab
 
            lished that he reported the injury immediately after the 
 
            injury and was allowed to leave to seek medical attention 
 
            only after he finished loading the railroad car.  He was not 
 
            initially referred for medical treatment to any physician by 
 
            Peavey management.  
 
            
 
                 Claimant sought treatment on the day of injury from 
 
            Charles Pigneri, D.O., who diagnosed acute lumbar disc syn
 
            drome with right leg radiculopathy.  He then was referred to 
 
            a neurosurgeon, Behrouz Rassekh, M.D.  Dr. Rassekh reported 
 
            that his studies revealed a bulging disc and he diagnosed 
 
            lumbosacral strain and degenerative disc disease.  Dr. 
 
            Rassekh treated claimant with physical therapy, restricted 
 
            activity and medication.  Claimant then attempted light duty 
 
            work but soon returned to Dr. Pigneri and was then referred 
 
            in February 1990 to Michael J. Morrison, M.D., an orthopedic 
 
            surgeon.  Dr. Morrison ordered a myelogram.  When the myelo
 
            gram came back normal, claimant was referred back to Dr. 
 
            Pigneri.  Dr. Pigneri then treated claimant through November 
 
            1990 with physical therapy, analgesics, ultra-sound, muscle 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            relaxers, and manipulative therapy.  Claimant improved but 
 
            the low back and leg pain continued.  
 
            
 
                 In November and December 1990, claimant was evaluated 
 
            and treated by Dennis Green, D.C., with chiropractic therapy 
 
            and the use and assistance of a thermogram, a test to reveal 
 
            locations of pain with changes in skin temperature.  
 
            
 
                 On January 14, 1991, defendants asserted their right to 
 
            choose the care and directed claimant's care to Dr. 
 
            Morrison.  Dr. Morrison then treated claimant for persistent 
 
            low back and leg pain until June 12, 1991, at which time he 
 
            opined that claimant reached maximum healing.  The doctor 
 
            released claimant to work but only with a permanent restric
 
            tion against frequent bending over to lift over 30 pounds.  
 
            He also recommended that claimant engage in no excessive or 
 
            recurrent crawling, kneeling or squatting.  Dr. Pigneri also 
 
            prohibits repetitive bending, twisting, turning, or lifting 
 
            in excess of 25 pounds.  According to his physicians, 
 
            claimant's pain will continued indefinitely requiring peri
 
            odic medical care and treatment.
 
            
 
                 Although Dr. Pigneri found some evidence of a prior 
 
            spinal injury in his x-rays, no other physician mentions 
 
            such a finding.  Claimant denies any prior injury or back 
 
            problems and Dr. Pigneri states that such a prior injury may 
 
            only have resulted in mild if any pain.  Claimant's back 
 
            screening during his pre-employment physical before working 
 
            at Peavey in February 1989 revealed no back problems or 
 
            abnormalities.  It is found that claimant had no prior back 
 
            injuries or impairment.
 
            
 
                 It is found that the work injury of December 1, 1989 
 
            was a cause of a significant permanent impairment to the 
 
            body as a whole.  The exact percentage is unimportant from 
 
            an industrial disability standpoint.  More important are the 
 
            restrictions against work activity imposed by Drs. Morrison 
 
            and Pigneri.  As a result of the injury, claimant is 
 
            restricted to light duty or lifting under 30 pounds for the 
 
            rest of his life.  Claimant's past employments as a cement 
 
            construction worker, auto mechanic and grain elevator worker 
 
            always required heavy manual labor.  The work injury pre
 
            cludes a return to work to the jobs for which claimant is 
 
            best suited given his employment history.  A return to work 
 
            at Peavey in any capacity is precluded by layoffs.  
 
            
 
                 The extent of claimant's formal education before the 
 
            injury was not shown in the record.  It has been shown that 
 
            he is capable of successful classroom work. He received 2200 
 
            hours of instruction in auto mechanics in the 1960's.  Since 
 
            his release to work, claimant sought employment at Job 
 
            Service and was referred to the Iowa Department of 
 
            Vocational Rehabilitation.  This agency tested claimant's 
 
            aptitudes and recommended retraining as an auto damage 
 
            appraiser for an insurance company or as a paralegal.  
 
            Claimant chose paralegal and is now attending classes at a 
 
            community college to qualify as a paralegal.  However, coun
 
            selors have only a guarded prognosis for successful comple
 
            tion of this retraining due to continued pain problems which 
 
            affect his ability to study.  His performance is poor in 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            some subjects.  Salaries for either of these two job alter
 
            natives range from $12,000 to $22,000 annually.  Although 
 
            claimant was earning $22,000 at the time of injury, coun
 
            selors expect claimant to initially fall in the minimum wage 
 
            or $12,000 annual income category.
 
            
 
                 Counselors have stated that they feel claimant is  well 
 
            motivated to return to work and genuinely desires to do so.  
 
            Claimant's age of 45 is certainly not a positive factor for 
 
            retraining but is not an impediment either.
 
            
 
                 After considering all of the above, it is found that 
 
            the work injury of December 1, 1989 was a cause of a 60 per
 
            cent loss of earning capacity.  
 
            
 
                 It is found that defendant chose to acquiesce in 
 
            claimant's choice of physicians prior to January 14, 1991.
 
            
 
                 With reference to weekly rate, claimant testified that 
 
            he has one dependant other than himself for purposes of 
 
            filing his tax returns.  Claimant's supervisor at Peavey 
 
            testified at hearing.  He initially stated that in the 13 
 
            week period before the injury, claimant's gross earnings 
 
            averaged $409.21 per week.  However, he later admitted that 
 
            claimant customarily worked a full 40 hour work week and 
 
            earned $10.39 per hour.  The difference in the earlier 
 
            figure was due to absences from work.  It is found that 
 
            claimant's representative week was a full 40 hour work week 
 
            and that his gross earnings for rate purposes herein was 
 
            $415.60 per week.
 
            
 
                 It is found that claimant's present permanent disabil
 
            ity is preventing a return to gainful employment.  It is 
 
            further found that his paralegal training courses will lead 
 
            to rehabilitation if successfully completed.
 
            
 
                    
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            CONCLUSIONS OF LAW
 
            
 
                   I.  Claimant must establish by a preponderance of the 
 
            evidence the extent of weekly benefits for permanent dis
 
            ability to which claimant is entitled.  As the claimant has 
 
            shown that the work injury was a cause of permanent physical 
 
            impairment or limitation upon activity involving the body as 
 
            a whole, the degree of permanent disability must be measured 
 
            pursuant to Iowa Code section 85.34(2)(u).  However, unlike 
 
            scheduled member disabilities, the degree of disability 
 
            under this provision is not measured solely by the extent of 
 
            a functional impairment or loss of use of a body member.  A 
 
            disability to the body as a whole or an "industrial disabil
 
            ity" is a loss of earning capacity resulting from the work 
 
            injury.  Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
            593, 258 N.W. 899 (1935).  A physical impairment or  
 
            restriction on work activity may or may not result in such a 
 
            loss of earning capacity.  Examination of several factors 
 
            determines the extent to which a work injury and a resulting 
 
            medical condition caused an industrial disability.  These 
 
            factors include the employee's medical condition prior to 
 
            the injury, immediately after the injury and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  See Peterson v. Truck Haven 
 
            Cafe, Inc., (Appeal Decision, February 28, 1985).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 60 percent loss of his earning capacity as a result 
 
            of the work injury.  Such a finding entitles claimant to 300 
 
            weeks of permanent partial disability benefits as a matter 
 
            of law under Iowa Code section 85.34(2)(u) which is 60 per
 
            cent of 500 weeks, the maximum allowable number of weeks for 
 
            an injury to the body as a whole in that subsection. 
 
            
 
                 The parties dispute as to rate of compensation centered 
 
            around the calculation of gross wages.  As claimant's hours 
 
            varied from week to week, the previous 13 weeks, including 
 
            absences, was utilized by defendants to calculate the rate.  
 
            However, this agency has consistently held that weeks which 
 
            contain absences due to illness, vacation or other causes 
 
            are not representative weeks and should be excluded from the 
 
            calculation.  Lewis v. Aalf's Mfg. Co. 1 Iowa Indus. Comm'r 
 
            Report 206 (Appeal Decision 1980).  Absent the absences, 
 
            claimant's customary work week was a full 40 hours and the 
 
            gross rate will be calculated accordingly.  Given single 
 
            status, entitlement to two exemptions and a gross rate of 
 
            $415.60, the commissioner's rate booklet for FY 90 sets the 
 
            weekly rate in the amount of $257.04.
 
            
 
                  II.  Pursuant to Iowa Code section 85.27, claimant is 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 
                 In the case at bar, the dispute was over authorization.  
 
            However, a right to choose the care also carries with it the 
 
            right to offer the care.  In this case, defendants defaulted 
 
            and did not direct claimant to any particular care until 
 
            January 1991.  Consequently, they are liable for claimant's 
 
            care that he chose prior to that time.
 
            
 
                 III.  Iowa Code section 85.70 provides a small voca
 
            tional rehabilitation benefit of $20.00 per week for a maxi
 
            mum of 26 weeks under certain conditions.  Given the find
 
            ings as to permanent disability and claimant's current 
 
            inability to return to work due to this disability, claimant 
 
            is entitled to these benefits as well.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant three hundred 
 
            (300) weeks of permanent partial disability benefits at a 
 
            rate of two hundred fifty-seven and 04/l00 dollars ($257.04) 
 
            per week from April 9, 1990.
 
            
 
                 2.  Defendants shall pay to claimant additional healing 
 
            period benefits for the stipulated period of time at the 
 
            correct rate of two hundred fifty-seven and 04/l00 dollars 
 
            ($257.04) per week.
 
            
 
                 3.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 
            of these expenses paid by him.  Otherwise, defendants shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.  
 
            
 
                 5.  Defendants shall pay to claimant a maximum of 
 
            twenty-six (26) weeks of vocational rehabilitation benefits 
 
            at the rate of twenty and no/l00 dollars ($20.00) per week 
 
            for each week he attended courses at Western Community 
 
            College as a part of the paralegal training program.
 
            
 
                 6.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 7.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 8.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. John A. Rodenburg
 
            Attorney at Law
 
            100 Park Building
 
            500 Willow Avenue
 
            Council Bluffs, Iowa  51503
 
            
 
            Mr. John F. Thomas
 
            Attorney at Law
 
            One Central Park Plaza
 
            222 South 50th Street #1100
 
            Omaha, Nebraska  68102
 
            
 
            Mr. James A. Thomas
 
            Attorney at Law
 
            10 North Walnut
 
            Glenwood, Iowa  51534
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed May 29, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM E. AGNEW,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 936267
 
            PEAVEY GRAIN COMPANY,         :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            SEDGWICK JAMES,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803 
 
            
 
            
 
                 Non-precedential, extent of disability case.
 
                 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         WILLIAM E. AGNEW,             :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :       File No. 936267
 
         PEAVEY GRAIN COMPANY,         :
 
                                       :   M O D I F I C A T I O N
 
              Employer,                :
 
                                       :            O F
 
         and                           :
 
                                       :      D E C I S I O N
 
         SEDGWICK JAMES,               :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         The conclusions of law and order portion of the arbitration 
 
         decision filed May 29, 1992, is hereby modified to reflect that 
 
         the proper weekly rate of compensation is two hundred fifty-seven 
 
         and 04/l00 dollars ($257.04), not the figure two hundred 
 
         fifty-seven and 07/l00 dollars ($257.07) as contained in the 
 
         decision.
 
         
 
              Signed and filed this ____ day of June, 1992.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John A. Rodenburg
 
         Attorney at Law
 
         100 Park Building
 
         500 Willow Avenue
 
         Council Bluffs, Iowa  51503
 
         
 
         Mr. John F. Thomas
 
         Attorney at Law
 
         One Central Park Plaza
 
         222 South 50th Street #1100
 
         Omaha, Nebraska  68102
 
         
 
         Mr. James A. Thomas
 
         Attorney at Law
 
         10 North Walnut
 
         Glenwood, Iowa  51534
 
         
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CHARLES EUGENE EAGLE,         :
 
                                          :      File No. 936300
 
                 Claimant,                :
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :       D E C I S I O N
 
                                          :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Charles 
 
            Eugene Eagle against the Second Injury Fund of Iowa.  Mr. 
 
            Eagle alleges that he sustained a permanent injury to his 
 
            right wrist and forearm on September 19, 1988.  He alleges 
 
            an additional work injury date of October 11, 1989.
 
            
 
                 The case was heard and fully submitted at Des Moines, 
 
            Iowa, on August 10, 1992.  The record consists of testimony 
 
            from the claimant and Roger Reynolds; and, joint exhibits 1 
 
            through 9.
 
            
 
                                      ISSUES
 
            
 
                 The parties submit the following issues for resolution:
 
            
 
                 1.  Whether claimant received an injury on October 11, 
 
            1989, which arose out of and in the course of his 
 
            employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and the disability;
 
            
 
                 3.  Whether claimant is entitled to permanent partial 
 
            or total disability benefits;
 
            
 
                 4.  Whether the Second Injury Fund has been exposed to 
 
            liability on the claim.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Charles Eagle was 35 years old at the time of the 
 
            hearing.  He is a high school graduate, and has not received 
 
            any additional training.
 
            
 
                 In July of 1983, he began to work for Rees Associates.  
 
            During his eight year tenure with the company, claimant 
 
            worked as  a stock person for five and one-half years, and 
 
            then as a loader beginning in 1988.  These positions 
 
            required claimant to load and unload machines, requiring him 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            to perform lifting duties.  Claimant also worked as a 
 
            warehouseman for a short amount of time, which required him 
 
            to drive a forklift, take inventory, and pick up materials 
 
            to be weighed.  When claimant began working for Rees 
 
            Associates, he earned $3.80 per hour.  When he left the 
 
            employment in 1992, he was earning $6.25 per hour.
 
            
 
                 In September of 1988, claimant sought medical treatment 
 
            for pain in his right wrist.  Initially, he saw Lyle Smith, 
 
            M.D., at the Iowa Methodist Medical Center emergency room.  
 
            He was diagnosed as having tendinitis, was given a wrist 
 
            support, Motrin, and instructions to rest (Joint Exhibit 2, 
 
            page 1).
 
            
 
                 Claimant returned to the emergency room on December 29, 
 
            1988, continuing to complain of numbness and tingling in his 
 
            right wrist.  He was referred to an orthopedic surgeon, 
 
            Arnis Grundberg, M.D., for treatment (Jt. Ex. 2, pp. 2-3).
 
            
 
                 On January 13, 1989, claimant began treatment with Dr. 
 
            Grundberg, who diagnosed carpal tunnel in the right wrist, 
 
            and scheduled an EMG which confirmed his diagnosis.  He 
 
            recommended claimant undergo an injection and return in two 
 
            months (Jt. Ex. 1, p. 3).
 
            
 
                 Claimant returned to Dr. Grundberg in late January and 
 
            late February 1989.  Dr. Grundberg recommended decompression 
 
            of the right carpal tunnel and decompression of the 
 
            intersection syndrome of the right forearm.  These 
 
            procedures were performed on March 13 and March 15, 1989 
 
            (Jt. Ex. 1, pp. 3-4).  Due to the nature of claimant's 
 
            occupation and his injuries, Dr. Grundberg recommended that 
 
            he seek employment at an establishment other than Rees 
 
            Associates (Jt. Ex. 1, p. 4; Jt. Ex. 2, pp. 4-10).
 
            
 
                 After several months of follow-up treatment, claimant 
 
            still displayed weakness in his right hand and intermittent 
 
            pain.  In September of 1989, Dr. Grundberg was of the 
 
            opinion that claimant had sustained a 3 percent permanent 
 
            impairment of the right hand, and converted the rating to 
 
            2.7 percent of the arm (Jt. Ex. 1, p. 5).  Dr. Grundberg 
 
            related this impairment to claimant's injury, which he 
 
            considered work related (Jt. Ex. 1, pp. 15-16).
 
            
 
                 Claimant began having pain in his left wrist in October 
 
            of 1989.  Dr. Grundberg diagnosed a left carpal tunnel 
 
            syndrome and recommended an EMG if his systems became worse 
 
            (Jt. Ex. 1, p. 6).
 
            
 
                 From November of 1989 to February of 1992, claimant saw 
 
            Dr. Grundberg on eight occasions.  Most of the complaints 
 
            and treatment centered around claimant's physical problems 
 
            with the right arm.  Claimant's right elbow continued to 
 
            cause the most pronounced symptoms.  Dr. Grundberg reviewed 
 
            two job descriptions provided by Rees Associates and was of 
 
            the opinion that claimant could perform duties as a machine 
 
            loader, but would be unable to perform custodial and 
 
            maintenance duties due to the potential of aggravating the 
 
            elbow (Jt. Ex. 1, pp. 6-10).
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 In November of 1989, claimant secured an independent 
 
            medical evaluation from Jerome Bashara, M.D., who reviewed 
 
            all relevant medical records and test results.  Dr. Bashara 
 
            was of the opinion that because of his job duties at Rees 
 
            Associates, claimant sustained a 5 percent permanent partial 
 
            impairment of the right hand (Jt. Ex. 3).
 
            
 
                 In December of 1989, Dr. Grundberg had stated that 
 
            claimant had a 3 percent permanent partial disability to the 
 
            left hand and was restricted from pushing, pulling or 
 
            lifting more than 25 pounds, and was to do no assembly line 
 
            work (Jt. Ex. 1, p. 17).
 
            
 
                 Dr. Grundberg was of the opinion that claimant had 
 
            sustained a 5 percent impairment due to right cubital tunnel 
 
            syndrome (Jt. Ex. 1, p. 26).
 
            
 
                 From January of 1991 through December of 1991, claimant 
 
            sought treatment from Camilla Fredericks, M.D., who note 
 
            that claimant continued to have pain in his left wrist with 
 
            increased pain in both forearms.  She diagnosed the 
 
            condition as tendinitis (Jt. Ex. 4, pp. 2-10).
 
            
 
                 In 1992, claimant was terminated from Rees Associates, 
 
            and eventually secured employment at the Holiday Inn South 
 
            where he presently works as a houseman.  He lauders dirty 
 
            linen and performs pick up and delivery services.  He is 
 
            required to lift 10 pounds occasionally, and does not have 
 
            to perform repetitive movements.  He earns $4.75 per hour.
 
            
 
                 A questionnaire sent to Dr. Grundberg from the 
 
            defendant Fund sets forth 11 questions regarding the cause, 
 
            nature and extent of claimant's injuries.  Questions 3 and 4 
 
            best support the Fund's argument that claimant sustained 
 
            simultaneous injuries:
 
            
 
                 3.  Would you agree that, given what you know 
 
                 about Mr. Eagle's job activities at Rees 
 
                 Associates, Inc., his bilateral carpal tunnel 
 
                 syndrome and right cubital tunnel syndrome 
 
                 problems were developing simultaneouly but yet 
 
                 could and did manifest themselves on different 
 
                 occasions.
 
            
 
                 ANSWER:  Yes
 
            
 
                 4.  Would you agree that Mr. Eagle did not sustain 
 
                 separate and distinct traumatic incidents at work 
 
                 that caused his bilateral carpal tunnel syndrome 
 
                 and right cubital tunnel syndrome problems but 
 
                 rather his problems developed over a period of 
 
                 time due to the repetitive nature of his work at 
 
                 Rees Associates, Inc.?
 
            
 
                 ANSWER:  Yes
 
            
 
            (Jt. Ex. 1, pp. 28-29)
 
            
 
                         analysis and conclusions of law
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained simultaneous bilateral injuries, in which case the 
 
            Second Injury Fund does not incur liability, or if he 
 
            sustained two separate injuries, a situation which exposes 
 
            the Fund to liability.
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  To 
 
            invoke the entitlement to Fund benefits, three requirements 
 
            must be met.  First, the employee must have lost or lost the 
 
            use of a hand, arm, foot, leg or eye.  Second, the employee 
 
            must sustain a loss or loss of use of another specified 
 
            member or organ through a compensable injury.  Third, 
 
            permanent disability must exist as to both the initial 
 
            injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation-Law and Practice, section 17-1.
 
            
 
                 The Fund is responsible for the industrial disability 
 
            present after the second injury that exceeds the disability 
 
            attributable to the first and second injuries.  Section 
 
            85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 
 
            (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 
 
            (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 
 
            N.W.2d 300 (Iowa 1970).
 
            
 
                 Interest accrues on unpaid Second Injury Fund benefits 
 
            from the date of the decision.  Second Injury Fund of Iowa 
 
            v. Braden, 459 N.W.2d 467 (Iowa 1990).
 
            
 
                 Claimant first suffered from symptoms in the right 
 
            wrist in September of 1988.  No left wrist pain is noted in 
 
            the medical records until October of 1989, more than one 
 
            year after claimant sought treatment for the right wrist.
 
            
 
                 Although Dr. Grundberg answers affirmatively that 
 
            claimant's bilateral carpal tunnel syndrome and right 
 
            cubital tunnel syndrome developed simultaneously, but 
 
            manifested themselves on separate occasions, the undersigned 
 
            finds no basis in fact for this particular opinion.  No 
 
            tests were ever performed on the left wrist until October of 
 
            1989.  By that time, claimant had undergone numerous 
 
            treatments including surgery to the right wrist without 
 
            complaining of left wrist pain.  Likewise, the records 
 
            indicate that claimant's left wrist pain developed one to 
 
            four months prior to his initial complaints in October of 
 
            1989.  As a result, it is found that claimant sustained two 
 
            separate injuries and the Second Injury Fund is a proper 
 
            party to this claim.
 
            
 
                 The next issue to be addressed is the extent of 
 
            claimant's industrial disability which is determined from 
 
            the combined effects of the prior loss and the work-related 
 
            injury which is the subject of this litigation.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 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 he is 
 
            fitted.  Olson v. Goodyear Service 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 disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter 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 healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  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.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  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, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 As indicated earlier, claimant has sustained a prior 
 
            loss of 3 percent to his right hand due to the carpal 
 
            tunnel, and a 5 percent impairment to the cubital tunnel 
 
            syndrome.  Claimant's second injury resulted in a 3 percent 
 
            loss to the left hand due to carpal tunnel symptoms.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Claimant's employment background has been primarily in 
 
            manual labor positions.  Most of have paid minimum wage, 
 
            although claimant had received regular increases at Rees 
 
            Associates and was earning $6.25 per hour at the time he was 
 
            terminated.  Claimant's current position, a job he had held 
 
            for less than three months at the time of the hearing, paid 
 
            $4.75 per hour.  Claimant has held other jobs which paid 
 
            approximately $5 per hour.
 
            
 
                 Claimant's work restrictions include no repetitive work 
 
            and no lifting, pushing or pulling of more than 25 pounds.  
 
            These restrictions will preclude claimant from most of the 
 
            jobs he held at Rees Associates.  However, apparently there 
 
            were positions which would have accommodated claimant's 
 
            limitations, but the employer chose not to place claimant in 
 
            these positions on an extended basis.
 
            
 
                 The actual impairments assessed to claimant's condition 
 
            are minimal.  Yet, the medical records indicate claimant 
 
            still has some objective symptoms.  It was recommended that 
 
            he change occupations.
 
            
 
                 Although claimant had undergone some vocational 
 
            rehabilitation and continued physical therapy, motivation is 
 
            questionable.  He was working at the time of the hearing, 
 
            but his job search between the time of his termination and 
 
            the hearing was minimal.  Claimant indicated he had applied 
 
            to six businesses for work between his termination at Rees 
 
            Associates and the hearing.
 
            
 
                 After considering all of the relevant factors, it is 
 
            determined that claimant has sustained a 10 percent 
 
            disability.
 
            
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            The Fund's liability is determined by using the following 
 
            formula:
 
            
 
                 
 
                      50 weeks (industrial disability resulting from
 
                               combined effects of all injuries)
 
            
 
                  - 18.2 weeks (impairment value of the prior losses:
 
                               5% of 250 weeks; 3% of 190 weeks)
 
            
 
                  -  5.7 weeks (impairment value of the second injury
 
                               for which defendant employer is
 
                               responsible: 3% of 190).
 
                  ____________
 
            
 
                    26.1 weeks
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant Second Injury Fund shall pay claimant 
 
            twenty-six point one (26.1) weeks of permanent partial 
 
            disability at the rate of one hundred forty-four and 41/100 
 
            dollars ($144.41) per week beginning December 5, 1989.
 
            
 
                 That defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendant shall pay interest on benefits awarded 
 
            herein.
 
            
 
                 That defendant shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr Jon B Schuster
 
            Attorney at Law
 
            Ste 106 Homestead Bldg
 
            303 Locust St
 
            Des Moines IA 50309
 
            
 
            Mr. Robert D. Wilson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines IA 50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803; 5-3202
 
                                            Filed September 23, 1992
 
                                            Patricia J. Lantz
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CHARLES EUGENE EAGLE,         :
 
                                          :      File No. 936300
 
                 Claimant,                :
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :       D E C I S I O N
 
                                          :
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1803; 5-3202
 
            Defendant Fund found liable for 26.1 weeks of benefits.  
 
            Claimant had sustained separate injuries to both wrists and 
 
            his right elbow.  After considering all of the relevant 
 
            factors, it was determined that he had sustained a 10% 
 
            industrial disability.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            STAN WISNIEWSKI,      
 
                                         File Nos. 936473/952931
 
                 Claimant,                         1014991
 
                        
 
            vs.                               A P P E A L
 
                        
 
            FARMLAND FOODS, INC.,           D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            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 November 12, 1994 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                     BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert L. Brink
 
            Attorney at Law
 
            P.O. Box 308
 
            Denison, Iowa 51442
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102-3086
 
            
 
            
 
 
            
 
 
 
 
 
                                                5-1803
 
                                                Filed March 10, 1994
 
                                                Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            STAN WISNIEWSKI,      
 
                                          File Nos. 936473/952931
 
                 Claimant,                         1014991
 
                        
 
            vs.                                  A P P E A L
 
                        
 
            FARMLAND FOODS, INC.,             D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            
 
            5-1803
 
            Claimant alleged he had sustained three cumulative injuries.  
 
            The hearing deputy determined claimant had sustained a 
 
            cumulative trauma to his right hand.
 
            Claimant failed to establish that he had sustained permanent 
 
            injuries to the left hand, the right upper extremity, the 
 
            left upper extremity, both shoulders, the neck and the back.  
 
            The treating physician made several different ratings of his 
 
            patient.  While the treating physician testified that he 
 
            used the AMA Guides, it was apparent to the deputy that the 
 
            physician used the guides improperly when evaluating 
 
            claimant's condition.  The treating physician continually 
 
            modified his impairment ratings.
 
            
 
            
 
 
            
 
          
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            STAN WISNIEWSKI,              :
 
                                          :       File Nos. 936473
 
                 Claimant,                :                 952931
 
                                          :                1014991
 
            vs.                           :
 
                                          :    A R B I T R A T I O N
 
            FARMLAND FOODS, INC.,         :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 These are proceedings in arbitration upon the petitions 
 
            of claimant, Stan Wisniewski, against his self-insured 
 
            employer, Farmland Foods, Inc.  The cases were heard on 
 
            September 23, 1993 at the Woodbury County courthouse in 
 
            Sioux City, Iowa.  The record consists of the testimony of 
 
            claimant.  The other witnesses who testified are:  Susan 
 
            Marie Wisnewski, spouse of claimant; Rodney A. Koch, kill 
 
            floor supervisor; and Nancy Wiese, R.N., plant nurse.  
 
            Additionally, the record consists of joint exhibits 1-40, 
 
            claimant's exhibit I, and defendant's exhibits   A-H.
 
            
 
                 The three files represent alleged injury dates as 
 
            follows:
 
            
 
                      936473  alleged injury date of 11-14-89
 
            
 
                      952931  alleged injury date of 6-20-90
 
                 1014991 alleged injury date of 2-14-91, however, the 
 
            claim against the Second Injury Fund of Iowa was settled 
 
            prior to the date of the hearing.  The settlement was 
 
            approved by the industrial commissioner on May 12, 1993.
 
            
 
                                      ISSUES
 
            
 
                 The issues to be determined are: 
 
            
 
                 For file number 936473:  whether claimant is entitled 
 
            to any permanent partial disability benefits at the rate of 
 
            $265.65 per week.
 
            
 
                 For file number 952931:  whether claimant is entitled 
 
            to any permanent partial disability benefits at a rate of 
 
            $276.77 per week.
 
            
 
                 For file number 1014991:  1)  whether claimant is 
 
            entitled to any permanent partial disability benefits at a 
 
            rate of $312.26; and 2)  whether claimant is entitled to any 
 
            costs pursuant to rule 343 IAC 4.33.
 
            
 
                                 FINDINGS OF FACT
 

 
            
 
            Page   2
 
                  
 
                  
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is 40 years old.  He is the married father of 
 
            five children, although only four of the children are 
 
            minors.  Claimant is a high school graduate.  He received 
 
            his diploma in 1971.  He has no formalized education beyond 
 
            the high school level.  Since graduating from high school, 
 
            claimant has held a variety of positions.  He has worked in 
 
            counter sales in a tractor supply company; in a dime store; 
 
            he has worked in a supermarket; and in an electronics shop.  
 
            He has held several factory positions where he has engaged 
 
            in repetitive activities.  Claimant has had warehouse and 
 
            milk delivery jobs.  He has held a position as an assistant 
 
            manager in a warehouse where he ordered groceries, stocked 
 
            shelves and cleaned the facility.  He has also engaged in 
 
            meat packing where he has been hired to work on the kill 
 
            floor.
 
            
 
                 With respect to the defendant in question, claimant 
 
            commenced his employment on May 19, 1983.  Prior to his 
 
            employment, claimant passed the company pre-employment 
 
            physical examination.  At the time of his hire, claimant was 
 
            under no medical restrictions.  During the hearing, claimant 
 
            testified that he had sustained no work injuries prior to 
 
            his employment with defendant.
 
            
 
                 Claimant started work on the "fabline."  His job 
 
            entailed skinning chips from picnic hams.  However, for the 
 
            last five or six years of his employment, claimant worked 
 
            "shaving jowls."  He testified that his duties required him 
 
            to shave the animal hair from the neck down and that he was 
 
            also expected to shave some skin from the animal carcass.  
 
            Claimant indicated to the deputy that the number of people 
 
            who performed the same jobs gradually changed from 3 to 2 to 
 
            1.  As a result of reduced labor, claimant was expected to 
 
            perform his duties at a rapid rate of speed.
 
            
 
                 Later claimant's job duties increased to "pulling 
 
            toenails."   Claimant testified that he eventually pulled 
 
            the toenails from hogs at the rate of 1000 per hour.  
 
            Claimant's employment was terminated on January 15, 1992 for 
 
            medical reasons.
 
            
 
                 All of claimant's duties involved repetitive 
 
            activities.  Claimant testified that he began to experience 
 
            some problems with his fingers, hands, wrists, arms and 
 
            shoulders.  He also stated that pain and redness gradually 
 
            traveled up his arm, into the shoulder and then into the 
 
            neck and back.  He described numbness, redness, swelling and 
 
            low back pain.
 
            
 
                 In November of 1988, claimant had surgery for a right 
 
            carpal tunnel syndrome.  Dennis Crabb, M.D., performed the 
 
            surgery.  After about six weeks into his healing period, 
 
            claimant returned to work at his same job and at his same 
 
            rate of pay.   Claimant was previously compensated for that 
 
            work injury.
 
            
 

 
            
 
            Page   3
 
                  
 
                  
 
                 Approximately one year later, claimant saw Dr. Crabb 
 
            for problems relating to his right hand.  Dr. Crabb 
 
            described the problems in his deposition beginning at page 
 
            16, line 15.  He testified:
 
            
 
                    A.  Okay.  My office records of that date, 
 
                 11-14 of `89, indicates that he came complaining 
 
                 of having trouble with the right hand that has 
 
                 been a problem since he had his surgery.  He was 
 
                 having a lot of pain and tenderness in the right 
 
                 hand, a lot of swelling and erythema.  That's 
 
                 redness of hand and fingers.  The dorsal part of 
 
                 the hand was primarily involved and so was the 
 
                 palm.  I indicated that he was having a lot of 
 
                 tendonitis problems, Tinel's sign, T-I-N-E-L-S, 
 
                 sign was negative.  The carpal tunnel had been 
 
                 previously released and that did not appear to be 
 
                 the problem.  He indicated he was simply 
 
                 overworking the hand.  We began treating him with 
 
                 a medicine, anti-inflammatory medication, at that 
 
                 time and put him in a cock-up splint to wear at 
 
                 night and after work and told him that he should 
 
                 ice pack his hand at breaks and at lunch time and 
 
                 after work and requested to recheck in three 
 
                 weeks.
 
            
 
                    Q.  Am I correct that you didn't think the 
 
                 carpal tunnel was the problem at that point?
 
            
 
                    A.  That's correct.  There was a tendonitis of 
 
                 the top of the hand and in the palm but he had no 
 
                 symptoms related to the carpal tunnel which had 
 
                 already been released.
 
            
 
                    Q.  And am I also correct that thus far the 
 
                 only complaints that we've had are on the right 
 
                 side as opposed to the left?
 
            
 
                    A.  That's all we have in our records up to 
 
                 this point.  Yes.
 
            
 
                 Claimant continued to have problems with redness and 
 
            swelling in the right hand.  As a result, Dr. Crabb referred 
 
            claimant to Thomas P. Ferlic, M.D., an orthopedic specialist 
 
            in hand surgery.  Dr. Ferlic first examined claimant on 
 
            March 13, 1990.  The office note for that date reflected the 
 
            following:
 
            
 
                 He went back to work in early Jan. of 1989.  At 
 
                 that time, he noted some swelling in the fingers 
 
                 and the volar aspect of his hand.  He also noted 
 
                 discoloration in the form of redness more often 
 
                 than he had noted before.  This was especially 
 
                 true with exposure to the cold.
 
            
 
                 Eventually he tried Voltaren, ice and a brace.  
 
                 This helped somewhat but did not totally 
 
                 ameliorate the symptoms.
 
            
 
                 He is left with some swelling in the hand and 
 

 
            
 
            Page   4
 
                   
 
                   
 
                 wrist.  Mild cold intolerance, intermittent 
 
                 numbness.  The patient states that on his left 
 
                 wrist he has been having increasing problems with 
 
                 some numbness which occasionally wakes him up from 
 
                 sleep.  He would estimate that this is once a 
 
                 week.  He feels like his symptoms are much the 
 
                 same as his right hand pre operatively from his 
 
                 carpal tunnel.
 
            
 
                 He has not lost control of bowel or bladder.  He 
 
                 has no systemmic [sic] illness and no radicular 
 
                 pain from his neck.
 
            
 
                 PE:
 
            This is a very pleasant man who appears stated 
 
            age.
 
            
 
                 His neck shows good ROM.  Spurling's maneuver is 
 
                 negative.  Reflexes (unreadable) biceps, triceps, 
 
                 brachioradialis jerks are intact.  C5, 6, 7 and 8 
 
                 musculature is intact.  No weakness can be 
 
                 detected in the axillary musculocutaneous, ulnar, 
 
                 radial or median ennervative [sic] musculature of 
 
                 the upper extremity.  Intrinsic musculature is 
 
                 intact.  Phalen's and Tinel's maneuver has caused 
 
                 a mild amount of discomfort but only when done 
 
                 with his hands level with his shoulders.  He does 
 
                 not have any tenderness in the brachioplexis nor 
 
                 tenderness (unreadable) maneuver.
 
            
 
                 The patient was sent to the neurologist and an EMG 
 
                 was done which was normal bilaterally.
 
            
 
                 IMP:
 
            As above.
 
            
 
                 DIS:
 
            At this point I believe the patient has flexor 
 
            tendon tenosynovitis on an intermittent basis.  
 
            His treatment at this point is appropriate with 
 
            non steroidal anti inflammatories [sic], ice and 
 
            occasional bracing.  Would not suggest anything 
 
            else be done at this point.
 
            
 
                 In a letter to Dr. Crabb dated April 23, 1990, Dr. 
 
            Ferlic wrote:
 
            
 
                 I believe the patient has intermittent flexor 
 
                 tendon tenosynovitis.  I am unsure as to the 
 
                 etiology of his numbness.  I cannot therefore rate 
 
                 a disability at this point.
 
            
 
                 Claimant returned to Dr. Ferlic approximately one month 
 
            later.  The office note of May 30, 1990 contained the 
 
            following opinion of Dr. Ferlic:
 
            
 
                 DX:
 
            l.  S/P carpal tunnel release, right hand.
 
            2.  Flexor tendon tenosynovitis, right hand.
 
            3.  Numbness left hand unknown etiology.
 

 
            
 
            Page   5
 
                   
 
                   
 
            
 
                 Patient returns back today and has essentially the 
 
                 same type of complaints he had before.  When he 
 
                 has several days in a row off, he feels better.  
 
                 When he works very hard, or has many days 
 
                 repetition, he has problems.
 
            
 
                 He has currently been complaining of some numbness 
 
                 in his left wrist about 3 times a week.  The 
 
                 numbness comes on and off.  His right hand still 
 
                 has the same type of problems he has always had, 
 
                 which is pain in the wrist.  He states also there 
 
                 is some type of question whether he might have 
 
                 some arthritis in his wrist.
 
            
 
                 PE:
 
            Shows a well healed scar over the carpal tunnel.  
 
            This is on the right side.  He has no weakness of 
 
            his median or ulnar nerves.  He has mild 
 
            tenderness to his flexor tendons.  On the left 
 
            side he has tenderness over the median nerve.  No 
 
            definitive median nerve weaknees [sic].  Phalen's 
 
            and Tinel's on this side are equivocal.  Ulnar 
 
            nerve is intact bilaterally.  The rest of the 
 
            nerves are intact bilaterally.
 
            
 
                 Xr:
 
            AP, lateral and clenched fist supination views of 
 
            his right wrist were taken.  They are essentially 
 
            normal in bony architecture.
 
            
 
                 IMP:
 
            1.  S/P carpal tunnel release, right hand.
 
            2.  Flexor tendon tenosynovitis, right hand.
 
            3.  Numbness left hand unknown etiology.
 
            
 
                 DISC:
 
            At this point, I have suggested that the patient 
 
            try to find a job within the packing house which 
 
            does consist of as much flexion of his wrist.  
 
            This seems to bring on his symptoms and he seems 
 
            to get better without it.  Impericially, it would 
 
            seem correct to try and put him in a decreased 
 
            load situation.
 
            
 
                 On February 14, 1991, claimant reported other physical 
 
            problems to Dr. Crabb.  Dr. Crabb rendered the following 
 
            opinion during his deposition:
 
            
 
                    A.  In my office note of February 14 of '91, 
 
                 we're asked to check his feet and hands.  I make 
 
                 note that he had some snapping fingers on the 
 
                 right hand, the right ring finger.  Lots of 
 
                 tendonitis in the hands, pleural, and tendonitis 
 
                 in both shoulders especially the long head of the 
 
                 biceps and tenderness over the coracoid process.  
 
                 Also mentioned that he was having trouble with his 
 
                 antiinflammatory [sic] medications upsetting his 
 
                 stomach so ordered some medication to counteract 
 
                 that effect so that he could continue to take his 
 

 
            
 
            Page   6
 
                   
 
                   
 
                 Voltaren to try to treat this condition.
 
            
 
            (Deposition, p.22)
 
            
 
                 Claimant was examined by another physician for right 
 
            hand problems.  On November 12, 1991, claimant was examined 
 
            by Daniel J. Larose, an orthopedic specialist.  The doctor 
 
            opined in his report of November 18, 1991:
 
            
 
                    Examination of his right hand shows a well 
 
                 healed incision.  Clinically his strength is 
 
                 decreased about 65%, compared to the left side.  
 
                 His grasp is limited to about one cm. from the 
 
                 palm of his hand.  The range of motion is the 
 
                 following:
 
            His second finger is 65/80/55.  Third finger 
 
            90/85/50.  Fourth finger 90/85/50.  Fifth finger 
 
            90/85/55.  For the 2nd, 3rd, and 4th finger and 
 
            MP, PIP, DIP respectively, there is no flexum 
 
            deformity.  The thumb MP shows 35 of flexion.  IP 
 
            shows 45 of flexion.  He has triggering of the 4th 
 
            finger at the MP level.  He has slight discomfort 
 
            in the left hand and some symptoms of carpal 
 
            tunnel, but this will not be rated today.
 
            
 
                    The permanent impairment is the following:
 
            For the decreased strength 6% of the upper 
 
            extremity.
 
            For the decreased range of motion at the thumb: 2% 
 
            of the upper extremity.
 
            For the decreased range of motion of the index 
 
            finger 11%.  Third finger 8%, 4th finger 2%, 
 
            trigger finger 2%.
 
            Total of 31% of the upper extremity, 19% of the 
 
            whole person.
 
            
 
                    As far as the carpal tunnel itself, it is 
 
                 difficult to separate both, but if you consider 
 
                 only the numbness that he has, occasionally this 
 
                 is 2% of his upper extremity, which would be a 
 
                 total of 33% if we wish to include it.
 
            
 
                 In September of 1992, claimant returned to Dr. LaRose 
 
            for an examination of his neck, back and shoulders.  In his 
 
            report of September 29, 1992, the physician opined:
 
            
 
                    Examination today shows a male that cooperates 
 
                 well with the exam.  He looks his stated age and 
 
                 he is in no distress.  He has normal range of 
 
                 motion at the neck level in both flexion and 
 
                 extension and rotation.  He has no atrophy of 
 
                 either the supraspinatus or infraspinatus fossa.  
 
                 His biceps and forearm are very well developed and 
 
                 there is no assymmetry [sic] or atrophy.  He has 
 
                 normal range of motion of both wrists.  Good 
 
                 flexion and extension of the fingers bilaterally.  
 
                 He flexes to about four inches from the floor.  On 
 
                 testing of the lumbar spine he has fairly good 
 
                 extension.  He complains of discomfort on 
 
                 extension of his spine.  Lateral flexion is 
 

 
            
 
            Page   7
 
                   
 
                   
 
                 symmetrical.  Testing of the shoulder shows normal 
 
                 active range of motion.  Right shoulder shows 
 
                 discomfort on external rotation at the 90/90 
 
                 degree test.  Left shoulder shows discomfort on 
 
                 internal rotation at the 90/90 degree test.
 
            
 
                    Conclusion:  Very few objective findings at 
 
                 this point on Mr. Wisniewski.  I do not find any 
 
                 permanent impairment on either his neck, shoulders 
 
                 and low back.  His symptoms are rather vague and I 
 
                 think that considering his injury, I would not add 
 
                 anymore permanent impairment.
 
            
 
                 On January 13, 1992, claimant reported multiple 
 
            complaints to the company nurse.  The notation in the 
 
            nurse's notes for that date stated:
 
            
 
                    States have [sic] had to pull about 250 toe 
 
                 nails in 2 1/2 hrs & shoulders wrists & back are 
 
                 hurting as bad as it did before-has appt this pm 
 
                 to see Dr. Crabb.
 
            
 
                 Dr. Crabb specifically mentioned the myriad of 
 
            complaints which claimant presented in a 1992 office visit.  
 
            The note indicates the following pertinent information:
 
            
 
                 We also need to rate him for his back and neck 
 
                 problems.  His low back is tender and sore all the 
 
                 time, primarily in the left and right sacro-iliac 
 
                 joints.  The lower lumbar spine seems to be 
 
                 nontender to palpation.  It does ache all the time 
 
                 however in the low back.  The neck has decreased 
 
                 range of motion especially in lateral flexion.  He 
 
                 can not [sic] put him [sic] ear on his shoulder 
 
                 and he can not [sic] get his chin to his shoulder.  
 
                 He has pretty much normal flexion straight 
 
                 forwards and backwards.  He has shoulder 
 
                 discomfort when he raises them above the level of 
 
                 the shoulders although he is able to do it.  He 
 
                 can't really accomplish any sort of jobs around 
 
                 the home place that involve any extended length of 
 
                 time working nor he do [sic] anything above the 
 
                 level of his shoulders.  In regards to his working 
 
                 on line in any sort of repetitive duty job he is 
 
                 100% disabled and needs to find some other form of 
 
                 work where he can not [sic] do so much manual 
 
                 labor and still earn a living.  The left hand is 
 
                 getting along much better.  He has got pretty much 
 
                 normal range of motion now and there is no 
 
                 snapping on the left hand as there is on the right 
 
                 on the one finger.  The grip on the left hand 
 
                 seems to be coming back now that he is not working 
 
                 on a repetitive job.  I don't think he is going to 
 
                 any permanent impairment of that hand but he does 
 
                 have 100% permanent disability for doing any type 
 
                 of repetitive action job such as working on the 
 
                 line at any kind of plant.  I feel that the hand 
 
                 is probably improved to the point where he can 
 
                 begin his rehabilitation as the tendonitis has 
 
                 subsided now that he is not doing the repetitive 
 

 
            
 
            Page   8
 
                   
 
                    
 
                 motion activities.  The impairment of his hand is 
 
                 current at 10%.  Disability of the hand however 
 
                 remains as far as his doing repetitive jobs as 
 
                 noted above is 100% disability although the 
 
                 impairment is subsiding.  impairment [sic] 
 
                 relative to the neck according to Table 52, page 
 
                 83, Guides to the Evaluation of Permanent 
 
                 Impairment (3rd Edition) shows that the lateral 
 
                 flexion of 30o amounts to a 1% impairment of the 
 
                 whole person to the right and another because of 
 
                 the limitation to the left and % [sic] impairment 
 
                 to the whole person due rotation is 2% right and 
 
                 2% left and about a 10% impairment of the whole 
 
                 person based on restriction of motion of the neck.  
 
                 He has no real limitation of motion of the lower 
 
                 lumbar spine.  That is mostly discomfort which is 
 
                 really quite impossible to equate to some 
 
                 percentage, however that coupled with his neck and 
 
                 hands would eliminate him from contention for any 
 
                 job requiring lifting, bending, stooping or 
 
                 repetitive motions.
 
            
 
                 In his deposition of July 7, 1993, Dr. Crabb modified 
 
            his previous opinions relative to claimant's alleged 
 
            condition.  Dr. Crabb testified that:
 
            
 
                       Skinning [sic] over the back for the moment, 
 
                 looking down to the area that talks about the 
 
                 hands which is about -- on your page about the 
 
                 middle, it says the left hand is getting along 
 
                 much better.  He's got pretty much normal range of 
 
                 motion now and no snapping in the left hand as 
 
                 there is on the right on that one finger.  The 
 
                 grip on the left hand seems to be coming back now 
 
                 that he's not working on a repetitive duty job.  I 
 
                 don't think he's going to have any permanent 
 
                 impairment of that hand, but he does have 100 
 
                 percent disability for doing any kind of 
 
                 repetitive action job such as working on the line 
 
                 at any kind of plant.  And I feel that that hand 
 
                 is probably improved to the point where he can 
 
                 begin his rehabilitation as the tendonitis has 
 
                 subsided now that he's not doing the repetitive 
 
                 motion activities.
 
            
 
                       Impairment of that -- his hand, meaning left 
 
                 hand, is currently at 10 percent.  That's left 
 
                 hand.  Okay.  The disability of the hand, however, 
 
                 remains as far as doing repetitive job as noted 
 
                 above and that's 100 percent.  Okay.  So in this 
 
                 case the impairment is going down because the 
 
                 tendonitis is subsiding, the swelling is going 
 
                 down, he's able to move his hand more, he's got 
 
                 better grip strength.  But in relation to any kind 
 
                 of job doing a repetitive action whether it's at 
 
                 Farmland or GE or wherever it might be, he's still 
 
                 100 percent disabled in my opinion because he 
 
                 can't do that repetitive duty.  If he does, he's 
 
                 going to get his tendonitis right back again and 
 
                 his impairment is going to go back up.  And that's 
 

 
            
 
            Page   9
 
                  
 
                   
 
                 the intent of what's written there.
 
            
 
                       Then we talk about impairment of the neck 
 
                 when we talk about the amounts of motion and so 
 
                 on.
 
            
 
                    Q.  So that the record is clear, doctor, are 
 
                 you telling us now that this impairment that you 
 
                 have at 10 percent is of the left hand?
 
            
 
                    A.  It is a little unclear, isn't it?  I know 
 
                 his problem has been on the right hand.  I wonder 
 
                 if I misdictated that and put the left instead of 
 
                 right on all of those cases.  Because I know it 
 
                 was the right hand that I operated on and it was 
 
                 the right hand that I kept seeing him for all of 
 
                 the time.  I guess I would have to say that that 
 
                 probably was a right-left transposition as far as 
 
                 the dictation was concerned.
 
            
 
                    Q.  Okay.  When you do these impairment ratings 
 
                 are you using a goniometer to measure the motion?
 
            
 
                    A.  Yes, we do.
 
            
 
                    Q.  Do you use an inclinometer for the spine 
 
                 motion?
 
            
 
                    A.  I use the goniometer for that because I 
 
                 don't have an inclinometer.
 
            
 
                    Q.  And are you using the AMA Guides?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  Now, in terms of this impairment of the 
 
                 hand that you come up with the 10 percent, do you 
 
                 have any idea what factors you would have included 
 
                 to get to that 10 percent?
 
            
 
                    A.  Those would be such things as his ability 
 
                 to make a complete fist and get the fingers all 
 
                 the way down into the palm, his ability to 
 
                 straighten them out all the way, the ability to 
 
                 rotate and tip at the wrist which is involved with 
 
                 the hand function and hand motion and also his 
 
                 grip strength which as I don't have a grip 
 
                 strength measuring device is more subjective.  But 
 
                 those sort of things are taken into consideration.
 
            
 
                    Q.  Now, when you did this impairment rating 
 
                 for the whole person based on the motion of the 
 
                 neck we have a 1 percent and a 2 percent and a 2 
 
                 percent and we come up with 10.
 
            
 
                    A.  Okay.  See if we can sort that out here.  
 
                 The guides are sometimes a little confusing 
 
                 because you have to read the tables very carefully 
 
                 because sometimes they are relating to a 
 
                 percentage impairment of the part and sometimes 
 

 
            
 
            Page  10
 
                    
 
                   
 
                 they are relating to a percentage of the whole 
 
                 person and so you have to be careful to convert 
 
                 your percentages to the same common denominator 
 
                 and then go to the tables in the back to do all 
 
                 the adding.  It's not just necessarily just a 
 
                 straight arithmetic addition to get the 
 
                 percentages.
 
            
 
                       Um, where we're talking about in the center 
 
                 of that note where it mentions the guides 3d 
 
                 edition lateral flexion of 30 degrees amounts to a 
 
                 1 percent impairment of the whole person and 
 
                 that's lateral flexion to the right.  And lateral 
 
                 flexion to the left limitation is another 1 
 
                 percent so now we're at 2 percent of the whole 
 
                 person.  The limitation due to rotation to the 
 
                 right is a 2 percent and the rotation to the left 
 
                 is 2 percent.  And 10 percent -- those add up -- 
 
                 according to the tables when you add all those up 
 
                 you get about -- you get 10 percent impairment of 
 
                 the whole person based on restriction of motion of 
 
                 the neck. He had no limitation of the lower lumbar 
 
                 spine.
 
            
 
            (Exhibit 40, pp. 29-32)
 
            
 
                 Dr. Crabb evaluated claimant with respect to a 
 
            functional impairment rating on July 8, 1992.  The physician 
 
            eventually rated claimant as follows:
 
            
 
                    In reference to the dictation dated February 
 
                 19, 1992, it is my determination that there was 
 
                 indeed a dictation error that all references to 
 
                 the left hand are actually in fact references to 
 
                 the right hand.  Those changes have been dually 
 
                 [sic] noted by me on the original medical records.
 
            
 
                    Stan was evaluated on 7/8/92.  A copy of that 
 
                 note is included in this letter.  I would offer 
 
                 the following summarization of his impairments and 
 
                 ratings thereof.
 
            
 
                    The right hand motion 10% of the hand.  Right 
 
                 hand strength 20% of the hand.  Combining those we 
 
                 get 28% hand disability which equates to 25% upper 
 
                 extremity or 15% whole person.
 
            
 
                    Left hand strength 20%.  This equates to 18% 
 
                 upper extremity and 11% of the whole person.
 
            
 
                    Neck 10% whole person rating as noted in 
 
                 previous dictation.
 
            
 
                    (The one thing not addressed in the "AMA 
 
                 Guides" is the triggering of the right ring 
 
                 finger.  I find nothing to equate that to 
 
                 impairment.)
 
            
 
                    Combining the above whole person impairments 
 
                 using the combined values table, 15% + 11% + 24% + 
 

 
            
 
            Page  11
 
                  
 
                  
 
                 10% = 32% whole person impairment with no 
 
                 allowance for trigger finger which is not listed.
 
            
 
                    I think this will clarify the questions that 
 
                 you have asked in that letter.  As you are aware, 
 
                 disabilities have a tendency to change with time, 
 
                 but based upon the information in the chart and on 
 
                 my evaluation of 7/8/92, these are, I feel, a most 
 
                 reasonable estimation of his status.
 
            
 
                 Defendant requested claimant to appear for a functional 
 
            capacity evaluation in Des Moines.  Thomas Bower, LPT, 
 
            administered the evaluation on July 13, 1993.  The physical 
 
            therapist authored a report dated July 13, 1993.  The report 
 
            provided that:
 
            
 
                    It would appear, and after reviewing all the 
 
                 medical records that you have so kindly forwarded, 
 
                 that the majority of the complaints with the 
 
                 exception of the carpal tunnel, are myofascially 
 
                 related.  Mr. Wisniewski cannot give me any 
 
                 specific date of injury, and it appears that these 
 
                 all have been of a gradual onset.  He continues to 
 
                 complain of the inability or difficulty with grasp 
 
                 of each hand, soreness and swelling in the hands, 
 
                 continuation of pain in the back, and shoulder and 
 
                 neck soreness.
 
            
 
                    Musculoskeletal evaluation revealed a patient 
 
                 that is 70 inches tall, and weighs 200 pounds.  He 
 
                 presents with an average body build.  No assistive 
 
                 device is required for ambulation, and there does 
 
                 not appear to be any splinting, holding or 
 
                 asymmetrical holding patterns noted.  Manual 
 
                 muscle testing of all muscles groups listed on 
 
                 Page 2 of the Documentary, revealed normal 
 
                 findings left to right side with no percentage of 
 
                 deficit.
 
            
 
                    Mr. Wisniewski indicates that he has a 
 
                 continued trigger finger on his right ring finger, 
 
                 although I do not see any specific mention of this 
 
                 in the past medical.  Therefore, I have not 
 
                 included this aspect in my assessment.  
 
                 Neurological exam of the neck and upper 
 
                 extremities reveal normal findings to light touch 
 
                 from C5 to T2.  Reflexes of the upper extremities 
 
                 are 1+ over 1+.  Goniometric measurements of the 
 
                 wrist, show wrist flexion measured at 70o, 
 
                 extension 60o, with radial and ulnar deviation 
 
                 measured at 20o and 30o respectively.  Shoulder 
 
                 flexion measures 135o, extension 45o, external 
 
                 rotation at 75o, with internal rotation 60o, and 
 
                 abduction measured at 120o.
 
            
 
                     ...
 
            
 
                    We have taken the liberty also to reproduce or 
 
                 look at repeat nerve conductions on the right 
 
                 side.  We find the normal motor and sensory 
 

 
            
 
            Page  12
 
                  
 
                  
 
                 conductions are found, as well as a normal median 
 
                 palmar latency.  Therefore, there does not appear 
 
                 to be any evidence of any residual nerve 
 
                 dysfunction based on these findings.
 
            
 
                    I've reviewed the impairment evaluation 
 
                 performed by Dr. Crabb.  Clearly, I feel the AMA 
 
                 guides [sic] have been inappropriately used in 
 
                 determining this impairment.  Certainly face value 
 
                 of the evaluation has been taken, and the 
 
                 percentages of impairment have been calculated on 
 
                 that basis.
 
            
 
                 Dr. Crabb has also reported that the AMA guides 
 
                 [sic] do not specifically measure or suggest an 
 
                 impairment for right finger triggering, and that 
 
                 simply is not true, where this is specifically 
 
                 discussed on Page 52 of the AMA guides [sic], 
 
                 under constrictive transitivities.  However, as I 
 
                 have alluded to before, I do not see where this 
 
                 was specifically entered into the injuries that 
 
                 were listed in the cover letter that you provided, 
 
                 therefore, I will not consider that at this time.
 
            
 
                    A further review of the impairment performed by 
 
     
 
            
 
            
 
            Page  13
 
                  
 
                 
 
                 Dr. Crabb, indicates that range of motion of the 
 
                 hand, and strength have been taken into account 
 
                 and have been the basis for those calculations.  
 
                 However, I do not see any objective information 
 
                 that would suggest there is a reason for the 
 
                 documented loss of hand motion, shoulder motion, 
 
                 etc.
 
            
 
                    Based on the normal nerve function, 
 
                 specifically of the median nerve of the right 
 
                 hand, I do not believe this individual has 
 
                 sustained any impairment, based on those findings.  
 
                 The loss of motion of the wrist and hand, we feel, 
 
                 is certainly at best a temporary loss and would 
 
                 likely, if measured, change day to day, based on 
 
                 pain responses, etc.  Therefore, we do not believe 
 
                 that that is a permanent loss at this time.  We 
 
                 believe similar conclusions can be drawn from the 
 
                 shoulder range of motion, which has shown a 
 
                 demonstrable loss.  Again, I do not see any 
 
                 evidence that would suggest any permanent 
 
                 pathology that would be accounting for the range 
 
                 of motion loss.  Regarding the patient's back 
 
                 pain, we indeed find it to be functioning better 
 
                 than the upper extremity problems at this time, 
 
                 based on the functional strength deficit.
 
            
 
                    Therefore, it is our conclusion this individual 
 
                 has not sustained any impairment on the basis of a 
 
                 permanent basis, with the conclusions of our 
 
                 findings.  
 
            
 
            Clearly, this is in direct conflict and certainly 
 
            is exceedingly different than the impairment 
 
            reported by Dr. Crabb.
 
            In September of 1993, claimant returned to Dr. Crabb for an 
 
            examination for back pain.  The physician noted in his 
 
            office note of September 9, 1993:
 
            
 
                 [B]ack [s]eems to get worse.
 
            Stan Wisniewski still has some problems with his 
 
            back.  Exam shows tenderness in the sacro-iliac 
 
            joints bilaterally on the right more then [sic] on 
 
            the left.  The lumbar area is OK.  L-5, S-l is a 
 
            little tender but the paraspinous muscles are 
 
            normal.  Range of motion is good.  We are going to 
 
            renew his Feldene 20 mg. Q.D. and his Cytotec 200 
 
            Micrograms Q.D. and see if that won't help him 
 
            out.
 
            At the time of the aforementioned office visit, x-rays of 
 
            claimant's lumbar spine were taken.  The x-rays revealed the 
 
            following:
 
            
 
                    No significant interval change in the 
 
                 appearance of the lumbar spine is appreciated 
 
                 since 6-25-90.  Again very mild degenerative 
 
                 changes of the lumbosacral junction is evident.
 
            
 
                    No acute loss of stature is (unreadable) of any 
 
                 of the individual vertebral segments.  If symptoms 
 
     
 
            
 
            
 
            Page  14
 
                 
 
            
 
                 persist an MR scan or CT scan is recommended 
 
            
 
                    IMPRESSION:  1.  Mild degenerative changes of 
 
                                     the lumbosacral junction
 
            
 
                                 2.  No acute bony change.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 File number 936473 is the first case which is 
 
            contested.  Claimant alleges he has sustained an injury to 
 
            both of his hands and arms.  
 
            
 
                 It is recognized that prior to the dates in question, 
 
            claimant had a right carpal tunnel release.  The surgical 
 
            procedure was performed by Dr. Crabb.  Claimant was 
 
            previously paid permanent partial disability benefits.
 
            
 
                 The records establish that claimant was paid the 
 
            following benefits which were benefits paid for the right 
 
            hand:  "29 1/2% to the right hand which equates to 56.05 
 
            weeks of benefits at the rate of $265.65 per week."
 
            
 
                 Claimant was paid no benefits for any alleged injuries 
 
            to the right upper extremity, the left hand or the left 
 
            upper extremity.
 
            
 
                 Claimant visited the plant nurse with complaints of 
 
            right and left hand pain on November 9, 1989.  (Ex. 2, p. 4)  
 
            An appointment was made for claimant with Dr. Crabb.  
 
            Claimant saw Dr. Crabb on November 14, 1989.  The physician 
 
            diagnosed claimant as having tendonitis.  Claimant was 
 
            released to return to work without restrictions.  (Ex. 11)  
 
            One month later, Dr. Crabb diagnosed claimant as having 
 
            "tendonitis, right hand."  (Ex. 12)  Claimant was restricted 
 
            from working.  Several months later, Dr. Crabb diagnosed 
 
            claimant as having "Persistent Tendonitis and Paresthesia of 
 
            the right hand and arm."  (Ex. 14)  Claimant was referred to 
 
            Dr. Ferlic.  It was not until February 14, 1991 that Dr. 
 
            Crabb ever mentioned both hands and arms.  (Ex. 15)  His 
 
            diagnosis then became "tendonitis of both hands and 
 
            shoulders."  (Ex. 15)
 
            
 
                 When Dr. Crabb rated claimant in July of 1991, Dr. 
 
            Crabb only rated the right hand.  He did not provide a 
 
            rating for the left hand or for the right and left upper 
 
            extremities.
 
            
 
                 It was not until much later that Dr. Crabb rated the 
 
            left hand.   However, even after looking at Dr. Crabb's 
 
            rating of claimant's left hand, it is determined that 
 
            claimant sustained no permanent partial disability to the 
 
            left hand.  In support of that finding and conclusion, this 
 
            deputy refers the parties to the office note of Dr. Crabb.  
 
            He determined there was no permanent impairment to the left 
 
            hand.  The physician opined in his office note in 1992:
 
            
 
                 I don't think he is going to [sic] any permanent 
 
                 impairment of that hand but he does have 100% 
 
                 permanent disability for doing any type of 
 

 
            
 
            Page  15
 
                 
 
                  
 
                 repetitive action job such as working on the line 
 
                 at any kind of plant.
 
            
 
            (Ex. 22, p. 3)
 
            
 
                 It is the determination of the undersigned that 
 
            claimant's injury of November 14, 1989 is an injury to the 
 
            right hand.  It is also the determination of this deputy 
 
            that claimant has sustained a 20 percent permanent partial 
 
            disability to the right hand as a result of the work injury
 
            
 
                 This deputy has encountered difficulties in assessing 
 
            the opinions of Dr. Crabb relative to his rating of 
 
            claimant's right hand injury.  Dr. Crabb continued to modify 
 
            his opinions as to permanency.  On July 17, 1991, Dr. Crabb 
 
            evaluated claimant for the purpose of rendering a functional 
 
            impairment rating.  The rating given was for 
 
            impairment/functional disability of the right hand.  Dr. 
 
            Crabb opined the rating was 20 percent to 25 percent of the 
 
            right hand due to carpal tunnel and persistent tendonitis.  
 
            (Ex. 18)
 
            
 
                  On February 26, 1992, Dr. Crabb modified his opinion 
 
            regarding claimant's functional impairment.  Dr. Crabb 
 
            opined the impairment had been reduced because claimant was 
 
            not involved in repetitive activities.  The physician 
 
            reduced the rating to 10 percent impairment of the hand.  
 
            (Ex. 22. p. 3)  Dr. Crabb again reduced the functional 
 
            impairment rating to a "minimal to no impairment" rating in 
 
            1992.  (Ex. 22, p. 1)
 
            
 
                 Dr. Crabb then again modified his impairment rating to 
 
            the right hand in his letter of June 14, 1993.  In that 
 
            correspondence, Dr. Crabb opined:
 
            
 
                 The right hand motion 10% of the hand.  Right hand 
 
                 strength 20% of the hand.  Combining those we get 
 
                 28% hand disability which equates to 25% upper 
 
                 extremity or 15% whole person.
 
            
 
                 While Dr. Crabb testified that he followed the AMA 
 
            Guides to the Evaluation of Permanent Impairment, it is not 
 
            apparent to the deciding deputy that the physician did, in 
 
            fact, follow the Guides.  The opinions of Dr. Crabb are not 
 
            accorded great weight, even though he was the treating 
 
            physician.  The doctor was inconsistent.  He continually 
 
            modified and changed his own ratings.  This deputy is left 
 
            with the impression that the ratings were arbitrary.
 
            
 
                 There is also the rating of Daniel J. Larose, M.D.  He 
 
            opined claimant had a 31% impairment to the right upper 
 
            extremity.  However, Dr. Larose rated claimant's fingers and 
 
            thumb.  He also rated claimant's trigger finger problem 
 
            which was not included as an injury in these cases.  
 
            Therefore, Dr. Larose's evaluation of the right upper 
 
            extremity included more than what was addressed in the 
 
            pending files.
 
            
 
                 In light of the foregoing, claimant is entitled to a 20 
 
            percent permanent partial disability to the right hand as a 
 

 
            
 
            Page  16
 
             
 
             
 
            result of the work injury on November 14, 1989.  Claimant is 
 
            entitled to 38 weeks of permanent partial disability 
 
            benefits at the stipulated rate of $265.65 per week.  Per 
 
            the stipulation of the parties, claimant had previously been 
 
            paid permanent partial disability benefits for 56.05 weeks 
 
            of benefits.  Defendant is entitled to a credit for benefits 
 
            previously paid.
 
            
 
                 The next issue to address deals with the injury alleged 
 
            to have occurred on June 20, 1990.  Claimant testified he 
 
            was pulling hogs at the time he experienced difficulties.  
 
            The nurse's notes indicated that on the date in question, 
 
            claimant reported pulling something in his mid or lower 
 
            back.  Claimant saw James Flood, M.D., per the referral from 
 
            defendant.  Dr. Flood diagnosed claimant's condition as 
 
            "Acute lumbar back strain."  (Ex. 4)  Claimant returned to 
 
            work without restrictions after missing 1.143 weeks of work.  
 
            He received temporary total disability benefits for the 
 
            period he was off work.  
 
            
 
                 Claimant maintains he has sustained a work-related 
 
            injury to his back on the date in question.  However, 
 
            claimant's description of the events leading up to his 
 
            determination to seek attention from the plant nurse is 
 
            sketchy, at best.  Diagnostic tests indicate claimant has 
 
            degenerative disk disease.  It is not clear whether the 
 
            degeneration is the result of claimant's work injury.  No 
 
            physician has causally related claimant's low back condition 
 
            to his work activities.  
 
            
 
                 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).
 
            
 
                 The requisite medical causation is not established in 
 
            this particular case.  However, even if claimant could have 
 
            established that the degeneration is work related, there is 
 
            no indication that claimant has suffered any permanent loss 
 
            to his back as a result of the work injury on June 20, 1990.  
 
            Claimant is entitled to no additional benefits because of 
 

 
            
 
            Page  17
 
            
 
             
 
             his work injury.
 
            
 
                 The final injury date which is alleged is the date of 
 
            February 14, 1991.  On this day, claimant complained to the 
 
            nursing staff at the plant that:
 
            
 
                 % pain both wrists & shoulders -- is a continuing 
 
                 problem -- is going to see Dr. Crabb for problem 
 
                 /c hemorrhoids -- will / /c him on hands & 
 
                 shoulders-also has callous on L foot.
 
            
 
            (Ex. 2, p. 2)
 
            
 
                 It is not clear to the undersigned what injuries 
 
            claimant is claiming he has received on this date.  This 
 
            deputy can only speculate that claimant is alleging that he 
 
            has sustained cumulative injuries to his upper extremities, 
 
            shoulders, and neck on this date.  Details leading up to 
 
            this alleged work injury are also sketchy.   As mentioned 
 
            above, claimant has not established the requisite causal 
 
            connection between any work injury and claimant's complaints 
 
            of left and right shoulder pain and neck pain.  Medical 
 
            causation has not been established.  
 
            
 
                 However, even if causation is assumed, claimant cannot 
 
            establish that he has sustained any permanent partial 
 
            disability as a result of a work injury on February 14, 
 
            1991.   Daniel J. LaRose, M.D., examined claimant for 
 
            purposes of rendering an evaluation of claimant.  The 
 
            physician concluded:
 
            
 
                 Very few objective findings at this point on Mr. 
 
                 Wisniewski.  I do not find any permanent 
 
                 impairment on either his neck, shoulders and low 
 
                 back.  His symptoms are rather vague and I think 
 
                 that considering his injury, I would not add 
 
                 anymore [sic] permanent impairment.
 
            
 
            (Ex. 35, p. 2)
 
            
 
                 While Dr. Crabb has provided a permanent partial       
 
            disability rating, his rating is suspect, given the number 
 
            of times he has provided various ratings.  Little weight can 
 
            be given to his ratings.  Finally, there is the opinion of 
 
            Thomas Bower, LPT.  He has conducted a functional capacity 
 
            evaluation in July of 1993.  Mr. Bower has opined there was 
 
            no permanent impairment.  (Ex. A)
 
            
 
                 In light of the foregoing, it is the determination that 
 
            claimant has not sustained a permanent partial disability as 
 
            a result of the work injury on February 14, 1991.  Claimant 
 
            takes nothing as a result of that work injury.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 With reference to file number 936473, defendant is to 
 
            pay unto claimant permanent partial disability benefits for 
 
            thirty-eight (38) weeks at the stipulated rate of two 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            hundred sixty-five and 65/100 dollars ($265.65) commencing 
 
            on February 26, 1992.
 
            
 
                 With reference to file number 952931, claimant takes 
 
            nothing from these proceedings.
 
            
 
                 With reference to file number 1014991, claimant takes 
 
            nothing from these proceedings.
 
            
 
                 Accrued benefits are to 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.
 
            
 
                 Defendant shall receive credit for all benefits 
 
            previously paid.
 
            
 
                 Costs are taxed to defendant pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Defendant 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.
 
            
 
                 
 
                                       ______________________________
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr. Robert L. Brink
 
            Attorney at Law
 
            40 North Main
 
            P.O. Box 308
 
            Denison, Iowa 51442
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce Street, Suite 200
 
            P.O. Box 3086
 
            Sioux City, Iowa 51102
 
            
 
 
            
 
 
 
           
 
           
 
                                                5-1803
 
                                                Filed November 12, 1993
 
                                                MICHELLE A. McGOVERN
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            STAN WISNIEWSKI,    
 
                                               File Nos. 936473
 
                 Claimant,                               952931
 
                                                        1014991
 
            vs.       
 
                                              A R B I T R A T I O N
 
            FARMLAND FOODS, INC.,    
 
                                                 D E C I S I O N
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
               
 
            5-1803
 
            Claimant alleged he had sustained three cumulative injuries.  
 
            The hearing deputy determined claimant had sustained a 
 
            cumulative trauma to his right hand.
 
            
 
            Claimant failed to establish that he had sustained permanent 
 
            injuries to the left hand, the right upper extremity, the 
 
            left upper extremity, both shoulders, the neck and the back.  
 
            The treating physician made several different ratings of his 
 
            patient.  While the treating physician testified that he 
 
            used the AMA Guides, it was apparent to the deputy that the 
 
            physician used the guides improperly when evaluating 
 
            claimant's condition.  The treating physician continually 
 
            modified his impairment ratings.