BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            BARBARA WHEELS,       
 
                        
 
                 Claimant,                         File No. 936976
 
                        
 
            vs.                                      A P P E A L
 
                        
 
            AT & T,                                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.
 
            
 
                                    ISSUES
 
            
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  The issues raised on appeal are:
 
            
 
            Brief point I
 
            This claim should be barred for failure to provide notice 
 
            under Iowa Code section 85.23
 
            
 
            Brief point II
 
            There is no basis in law or fact for the imposition of a 
 
            penalty under section 86.13, and the deputy violates due 
 
            process of law in applying chapter 507B to the self-insured 
 
            employer
 
            
 
                    A.  Assessing a penalty based on an unfair 
 
                    insurance practice under section 507B.4(a), The 
 
                    Code, was illegal and violative of due process
 
            
 
                    B.  The notice defense of the claimant is 
 
                    "fairly debatable" and not "without merit as a 
 
                    matter of law" as found by the deputy 
 
                    industrial commissioner
 
            
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Brief point III
 
            A penalty is not warranted as claimant receives disability 
 
            payments and health insurance through the employer, from 
 
            which the employer received credit under section 85.38(2)
 
            
 
            Brief point IV
 
            The deputy industrial commissioner's computation of healing 
 
            period is not supported by the evidence
 
            
 
            Brief point V
 
            The deputy industrial commissioner erred in assessing a 75 
 
            percent industrial disability as it is not supported by the 
 
            evidence
 
            
 
                              FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed March 11, 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 AT&T and its predecessor Northwestern 
 
            Bell from 1979 until October 27, 1989, primarily as a long 
 
            distance telephone operator.  However, she would be 
 
            regularly loaned out to other departments performing 
 
            clerical and other duties such as typing.  The most frequent 
 
            loan was to the job of mail clerk.  Her operator duties 
 
            consisted of talking to phone customers and entering or 
 
            obtaining data from a video display terminal using a 
 
            keyboard.  Claimant stated that the keyboard was very 
 
            sensitive and she was required to hold her hands at all 
 
            times slightly off the board to avoid accidently touching 
 
            the keys.  There was constant repetitive use of her hands 
 
            and arms in this job.  As a mail room clerk, she picked up 
 
            and delivered mail and packages including a large number of 
 
            boxes which at times were heavy.  She also was required to 
 
            handle paper containing confidential proprietary 
 
            information.  This involved collecting and dumping the paper 
 
            into special Dumpsters on each floor and taking the 
 
            Dumpsters weekly to the dock area for pick up.  Claimant was 
 
            usually rated above average in performance with the
 
            
 
            
 
            Page   3
 
             
 
            
 
            
 
            exception of attendance.  Claimant left her employment on 
 
            October 27, 1989, upon the advice of physicians and for the 
 
            immediate purpose of receiving surgery.  Claimant was laid 
 
            off in December 1989.  Claimant has not returned to work at 
 
            AT&T or anywhere else.
 
            
 
            On or about October 27, 1989, claimant injured her arms, 
 
            right shoulder and upper right chest area as a result of the 
 
            repetitive use of her hands and arms at AT&T.  This injury 
 
            has occurred gradually beginning in 1988 and manifested 
 
            itself several times since that time.  In March 1989 
 
            claimant experienced a loss of feeling in her right arm and 
 
            was off a few days.  When she returned to work she wore 
 
            wrist/arm splints prescribed by her physician.  She had 
 
            another flare-up in May 1989 at which time she was referred 
 
            to a general surgeon who suggested a change in chair height 
 
            at work.  Finally, on October 27, 1989, claimant was 
 
            compelled by her pain to leave work and she has not 
 
            returned.
 
            
 
            It is specifically found that AT&T management was aware, or 
 
            should have been aware, of the work-relatedness of 
 
            claimant's arm and shoulder difficulties as early as March 
 
            1989.  Her supervisors at the time testified that they were 
 
            unaware of any claim that the problems were work related 
 
            until late fall of 1989.  However, claimant returned to work 
 
            after a few days at AT&T following the March 1989 incident 
 
            with wrist/arm splits.  ***** Also, claimant submitted to 
 
            AT&T a physician's report in June 1989, exhibit 4, page 5.  
 
            In her portion of the report, claimant checked the box "On 
 
            Duty Accident or Illness."  Her physician, Alexander 
 
            Matthews, M.D., informed AT&T in his portion of this same 
 
            report of the diagnosis of thoracic outlet syndrome and the 
 
            recommendation that the height of a chair claimant was using 
 
            at work be adjusted to prevent further problems.  This also 
 
            would suggest to a reasonable supervisor at the time that 
 
            claimant's problems may be work related.
 
            
 
            Claimant's symptoms since the onset of problems consist of 
 
            pain and numbness in both arms but especially on the right 
 
            which extends into the shoulder, neck and chest area.  The 
 
            pain is especially acute at night which greatly disturbs 
 
            claimant's sleep.  The injury is multiplied as three 
 
            different conditions which have been diagnosed since October 
 
            27, 1989, namely:  thoracic outlet syndrome, shoulder 
 
            impingement and myofascial scapular syndrome or 
 
            fibromyalgia.
 
            
 
            Claimant also has developed chronic pain syndrome as a 
 
            result of her physical work injuries.  A significant aspect 
 
            of this chronic pain syndrome has been severe depression 
 
            aggravated by the chronic pain and disability from the work 
 
            injury and problems with her workers' compensation claim.  
 
            This depression has also been aggravated by nonemployment 
 
            related emotional stress since October 1989 from her 
 
            husband's severe injury and disability, the death of a 
 
            grandchild, and other home stress.  However, the work injury 
 
            remains a significant causative factor in initiating the 
 

 
            
 
            Page   4
 
              
 
            
 
            
 
            pain syndrome and depression.  The causal connection 
 
            findings herein are based upon the uncontroverted views of 
 
            all of claimant's treating physicians who have offered an 
 
            opinion in this case.  If fact, there is no physician that 
 
            states that any of these symptoms are unrelated to the work 
 
            injury herein. 
 
            
 
            As a result of the injury of October 27, 1989, claimant 
 
            first underwent a surgical removal of her right upper rib to 
 
            treat the thoracic outlet syndrome in November 1989.  Since 
 
            that time she has continued to experience chronic physical 
 
            pain and numbness in her arms and shoulder but her care has 
 
            remained conservative including physical therapy, use of a 
 
            TNS unit to relieve pain, pain management care and use of 
 
            medication.  In light of the diagnoses with reference to the 
 
            involvement of structures within the shoulder and the upper 
 
            rib resection, the injury clearly extends beyond the arm and 
 
            into the body as a whole.
 
            
 
            Claimant has received treatment for her chronic pain 
 
            syndrome and depression since April 1990.  Initially, this 
 
            treatment consisted of weekly visits with a clinical 
 
            psychologist and occasional evaluation by a psychiatrist.  
 
            She also attended a pain clinic.  In May 1990, one of her 
 
            psychologists opined that claimant was then unable to work 
 
            because of the combination of the depression and chronic 
 
            pain syndrome.
 
            
 
            Absent from the record are the current views of claimant's 
 
            psychologist and psychiatrist with reference to her 
 
            emotional state and ability to work due to her emotional 
 
            problems.  Claimant stated at hearing that she continues to 
 
            see her psychologist and psychiatrist every four to six 
 
            weeks for pain management and depression.  She continues 
 
            with antidepressant medications and biofeedback therapy.  
 
            Although it was found that her emotional problems are work 
 
            related, given the record, it could not be found that these 
 
            problems currently prevent a return to work suitable to her 
 
            physical difficulties.
 
            
 
            Claimant's primary treating physician for her physical 
 
            problems has been Scott Neff, D.O., an orthopedic surgeon.  
 
            According to claimant at hearing, he has released her from 
 
            his care.  Claimant continues to take medication for pain 
 
            and inflammation.
 
            
 
            The work injury of October 27, 1989, was a cause of a 17 - 
 
            37 percent permanent partial impairment to the body as a 
 
            whole.  The range of impairment is due to differing ratings 
 
            of W. C. Koenig, M.D., a physician at the pain clinic 
 
            attended by claimant and a licensed physical therapist, 
 
            Thomas Bower, who treated and evaluated claimant on behalf 
 
            of Dr. Neff.  As the injury extends into the body as a 
 
            whole, the work restrictions are an important element of 
 
            claimant's disability.  The physical therapist agreed with 
 
            Dr. Koenig's permanent restrictions against lifting over 10 
 
            - 12 pounds more than occasionally and no repetitive or 
 
            rapid movements of upper arms.
 
            As Dr. Koenig rated claimant's physical impairment on 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            January 15, 1992, it is found that claimant reached maximum 
 
            healing at that time.  The most recent evaluation of her 
 
            condition was performed by Robert Jones, M.D., an 
 
            neurosurgeon.  On March 29, 1991, Dr. Jones recommended 
 
            continued use of the TNS unit and avoidance of activity that 
 
            aggravates the shoulder.  However, no further treatment 
 
            recommendations were made by Dr. Jones.  He suggested that 
 
            vocational rehabilitation and a return to the work force 
 
            would be beneficial, physically and emotionally for 
 
            claimant.
 
            
 
            The work injury of October 27, 1989, is found to be a cause 
 
            of a 75 percent loss of earning capacity.  It could not be 
 
            found that claimant was unemployable.  It was readily 
 
            apparent at hearing that claimant is intelligent and 
 
            articulate.  Claimant has not looked for work suitable for 
 
            her disability but this is partly due to chronic pain 
 
            syndrome and the lack of vocational rehabilitation 
 
            counseling.  The jobs identified by Management Consulting 
 
            and Rehabilitation Services, Inc, in exhibit 14, had to be 
 
            rejected as they were not based upon the most recent work 
 
            restrictions imposed by Dr. Koenig and Thomas Bower.  ***** 
 
            Claimant today is able to perform only unskilled work which 
 
            does not require extensive use of her hands.  Claimant's 
 
            past employment has consisted of meat packing and clerical 
 
            or technical work involving use of a keyboard.  This is the 
 
            type of work for which she is best suited but can no longer 
 
            perform due to her restrictions.  The loss of the ability to 
 
            use hands and arms in a repetitive fashion is devastating 
 
            for an unskilled worker whose only significant work 
 
            experience has involved repetitive use of her hands. 
 
            However, claimant has held responsible positions in the past 
 
            as a research assistant and specifications clerk which did 
 
            not require extensive use of her hands.  Claimant is 42 
 
            years of age.  She should be in the most productive years of 
 
            her working career.  Her impairment is much more devastating 
 
            than would be the case for a younger or an older worker.  
 
            Claimant has a high school education and has demonstrated 
 
            the ability to perform some college level work.  Claimant's 
 
            chronic pain syndrome appears to be a limitation for her but 
 
            her most recent physician believes vocational rehabilitation 
 
            and a return to work is the best therapy for this condition.  
 
            The award herein should provide the assistance needed to 
 
            accomplish this goal.
 
            
 
            On October 15, 1990, claimant was notified by AT&T, who is 
 
            self-insured, that her workers' compensation claim herein 
 
            was denied.  No reason was given in this notice for the 
 
            denial, exhibit 15, page 9.  None has been provided to date.  
 
            According to exhibit 14, page 3, claimant is receiving 
 
            long-term disability payments from an AT&T benefits program 
 
            of $299.00 per month and $75l.00 per month from the social 
 
            security disability program.  These payments began on 
 
            October 6, 1991.  From October 5, 1990 through October 5, 
 
            1991, claimant was receiving one-half pay or $235.00 per 
 
            week.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed March 11, 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.
 
              
 
              I.  Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant received an injury arising out 
 
            of and in the course of employment.  The words "out of" 
 
            refer to the cause or source of the injury.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury.  See generally, Cedar Rapids Community Sch. 
 
            v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. 
 
            Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An employer 
 
            takes an employee subject to any active or dormant health 
 
            impairments. A work connected injury which more than 
 
            slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 
 
            106 N.W.2d 591 (1961), and cases cited therein.
 
            It is not necessary that claimant prove his disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever Court also held that the date of injury 
 
            in gradual injury cases is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever the injury 
 
            date coincided with the time McKeever was finally compelled 
 
            to give up his job.  This date was then used by the Court to 
 
            determine rate and the timeliness of claimant's claim under 
 
            Iowa Code section 85.26 and notice under Iowa Code section 
 
            85.23.
 
            In the case sub judice, the evidence was clear that the 
 
            proper injury date was alleged by claimant as that was the 
 
            time that the pain prevented a continuation of work.
 
             
 
             II.  Defendant has raised the issue of lack of notice of 
 
            the work injury within 90 days from the date of the 
 
            occurrence of the injury under Iowa Code section 85.23.  
 
            Lack of such notice is an affirmative defense.  DeLong v. 
 
            Highway Commission, 229 Iowa 700, 295 N.W. 91 (1940).  In 
 
            light of the decision in McKeever set forth above, the lack 
 
            of notice defense is without merit.
 
            III.  Furthermore, the evidence demonstrates that the 
 
            impairment was not confined to the arm.  Consequently, this 
 
            work injury constitutes an injury to the body as a whole 
 
            because it involves a permanent loss or loss of use of more 
 
            portions of the human body than those specifically scheduled 
 
            in Iowa Code sections 85.34(2)(a-t).  See Farmland Foods, 
 
            Inc. v. Ten Eyck, (Court of Appeals Decision, Filed January 
 
            29, 1986); Blacksmith v. All-American, Inc., 290 N.W.2d 348 
 
            (Iowa 1980).  Alm v. Morris Barick Cattle Co., 240 Iowa 
 
            1174, 38 N.W.2d 161 (1949); Dailey v. Pooley Lumber Co., 233 
 
            Iowa 758, 10 N.W.2d 569 (1943).  Therefore, the degree of 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            permanent disability must be measured pursuant to Iowa Code 
 
            section 85.34(2)(u).  Unlike scheduled member disabilities, 
 
            the degree of disability under this provision is not 
 
            measured solely by the extent of a functional impairment or 
 
            loss of use of a body member.  A disability to the body as a 
 
            whole or an "industrial disability" is a loss of earning 
 
            capacity resulting from the work injury.  Diederich v. 
 
            Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  
 
            Examination of several factors determines the extent to 
 
            which a work injury and a resulting medical condition caused 
 
            an industrial disability.  These factors include the 
 
            employee's medical condition prior to the injury, 
 
            immediately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications 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 suffered 
 
            a 75 percent loss of her earning capacity as a result of the 
 
            work injury.  Such a finding entitles claimant to 375 weeks 
 
            of permanent partial disability benefits as a matter of law 
 
            under Iowa Code section 85.34(2)(u) which is 75 percent of 
 
            500 weeks, the maximum allowable number of weeks for an 
 
            injury to the body as a whole in that subsection. 
 
            Claimant's entitlement to permanent partial disability also 
 
            entitles her to weekly benefits for healing period under 
 
            Iowa Code section 85.34 from the date of injury until 
 
            claimant returns to work; until claimant is medically 
 
            capable of returning to substantially similar work to the 
 
            work she was performing at the time of injury; or, until it 
 
            is indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.  Claimant was off 
 
            work beginning on October 27, 1989, and remained off work 
 
            until she reached maximum healing on January 15, 1992.  
 
            Healing period benefits will be ordered accordingly.
 
             IV.  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/she has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendant to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).  The parties stipulated that the requested expenses 
 
            were causally connected to the disputed condition.  As it 
 
            was found that all of claimant's arm, shoulder, neck and 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            pain syndrome symptoms are work related, all of the 
 
            requested expenses will be awarded.
 
              V. Finally, claimant seeks additional weekly benefits 
 
            under Iowa Code section 86.13.  The unnumbered last 
 
            paragraph of that Code section states that if a delay in 
 
            commencement or termination of benefits occurs without 
 
            reasonable or probable cause or excuse, the industrial 
 
            commissioner shall award extra weekly benefits in an amount 
 
            not to exceed 50 percent of the amount of benefits that were 
 
            unreasonably delayed or denied.  Defendant may deny or delay 
 
            the payment of benefits only when the claim is fairly 
 
            debatable.  Seydel v. U of I Physical Plant, (Appeal 
 
            Decision, Filed November 1, 1989).  When the claim is 
 
            "fairly debatable, the insurer is entitled to debate it, 
 
            whether the debate concerns a matter of fact or law."
 
            ***** In the case sub judice, claimant's claim was denied 
 
            but no reason was given.  Probably the reason why defendant 
 
            failed to provide a reason for denying the claim is that 
 
            none existed.  The views of claimant's physicians causally 
 
            connecting her arm, shoulder and chronic pain to the work 
 
            injury is uncontroverted.  ***** As a matter of law, 
 
            claimant's claim herein, especially with reference to her 
 
            physical complaints, was not fairly debatable.
 
            However, only a denial in payment of weekly benefits can be 
 
            grounds for imposing the penalty.  Klein v. Furnas Elec. 
 
            Co., 384 N.W.2d 370, 375 (Iowa 1986).  Claimant was paid 
 
            half salary or $235.00 per week, approximately $58.00 per 
 
            week less than the compensation rate from October 5, 1990 
 
            through October 5, 1991.  Claimant then received and 
 
            continues to receive approximately $225.00 per month under a 
 
            long-term disability program at AT&T, approximately $240.00 
 
            per week less than the compensation rate.  The penalty shall 
 
            be the sum of $25.00 per week during the time claimant was 
 
            paid one half of her salary. *****
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                        ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            That defendant shall pay to claimant three hundred 
 
            seventy-five (375) weeks of permanent partial disability 
 
            benefits at a rate of two hundred ninety-two and 81/l00 
 
            dollars ($292.81) per week from January 15, 1992.
 
            That defendant shall pay to claimant healing period benefits 
 
            from October 27, 1989 through January 14, 1992, at the rate 
 
            of two hundred ninety-two and 81/l00 dollars ($292.81) per 
 
            week.
 
            That as a penalty for an unreasonable denial of benefits, 
 
            defendant shall pay in addition to the above, the sum of 
 
            twenty-five and 00/l00 dollars ($25.00) per week from 
 
            October 5, 1990 through October 5, 1991.
 
            That defendant shall pay the medical expenses listed in the 
 
            prehearing report.  Claimant shall be reimbursed for any of 
 
            these expenses paid by him.  Otherwise, defendant shall pay 
 
            the provider directly along with any lawful late payment 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            penalties imposed upon the account by the provider.
 
            That defendant shall pay accrued weekly benefits in a lump 
 
            sum. 
 
            That defendant shall receive credit for previous payments of 
 
            benefits under a nonoccupational group insurance plan, if 
 
            applicable and appropriate, under Iowa Code section 
 
            85.38(2), less any tax deductions from those payments.
 
            That defendant shall pay interest on weekly benefits awarded 
 
            herein as set forth in Iowa Code section 85.30. 
 
            That defendant shall pay the costs of this action pursuant 
 
            to rule 343 IAC 4.33, set forth in the prehearing report 
 
            including reimbursement to claimant for the filing fee paid 
 
            in this matter and the costs of the appeal including the 
 
            transcription of the hearing. 
 
            That defendant 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 June, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                             BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl, III
 
            Attorney at Law
 
            974 73rd St., Suite 16
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Thomas J. McCann
 
            Attorney at Law
 
            P.O. Box 9130
 
            Des Moines, Iowa  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1803; 4000
 
                                                 Filed June 30, 1993
 
                                                 Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            BARBARA WHEELS,       
 
                        
 
                 Claimant,                     File No. 936976
 
                        
 
            vs.                                  A P P E A L
 
                        
 
            AT & T,                            D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
          
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.
 
            
 
            4000
 
            In a case that was not fairly debatable, awarded $25 per 
 
            week penalty during period when claimant was paid long term 
 
            disability which was much lower than her compensation rate.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                      before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BARBARA WHEELS,               :
 
                                          :        File No. 936976
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            AT&T,                         :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Barbara 
 
            Wheels, claimant, against AT&T, employer, a self-insured 
 
            defendant, for workers' compensation benefits as a result of 
 
            an alleged injury on October 27, 1989.  On February 10, 
 
            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 con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and AT&T at the time of the alleged injury.
 
            
 
                 2.  Claimant has been off work since October 27, 1989, 
 
            and claimant is seeking healing period benefits from that 
 
            time.
 
            
 
                 3.  At the time of injury, claimant's gross rate of 
 
            weekly compensation was $470.50 and she was married and 
 
            entitled to two exemptions.  This establishes a weekly rate 
 
            of compensation of $292.81 according to the Industrial 
 
            Commissioner's published rate booklet for FY 89.
 
            
 
                  4.  The medical bills submitted by claimant at the 
 
            hearing are fair and reasonable and causally connected to 
 
            the medical condition upon which the claim herein is based 
 
            but that the issue of their causal connection to any work 
 
            injury remains an issue to be decided herein.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                   I. Whether claimant received an injury arising out of 
 
            and in the course of employment; 
 
            
 
                 II.  Whether the claim is barred for failure to provide 
 
            notice under Iowa Code section 85.23;
 
            
 
                 III. The extent of claimant's entitlement to disability 
 
            benefits;
 
            
 
                  IV. The extent of claimant's entitlement to medical 
 
            benefits; and,
 
            
 
                   V.  Claimant's entitlement to penalty benefits, if 
 
            any, under Iowa Code section 86.13(4) for an unreasonable 
 
            delay or denial of benefits.
 
            
 
                 With reference to the medical bills, the parties had 
 
            not identified the specific expenses in question but agreed 
 
            that if the condition treated is found work-related the 
 
            expenses are work-related and the parties will sort out the 
 
            bills at a later date.
 
            
 
                                 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 
 
            defendant placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From her demeanor while testifying, 
 
            claimant is credible.
 
            
 
                 Claimant worked for AT&T and its predecessor 
 
            Northwestern Bell from 1979 until October 27, 1989, primar
 
            ily as a long distance telephone operator.  However, she 
 
            would be regularly loaned out to other departments perform
 
            ing clerical and other duties such as typing.  The most fre
 
            quent loan was to the job of mail clerk.  Her operator 
 
            duties consisted of talking to phone customers and entering 
 
            or obtaining data from a video display terminal using a key
 
            board.  Claimant stated that the keyboard was very sensitive 
 
            and she was required to hold her hands at all times slightly 
 
            off the board to avoid accidently touching the keys.  There 
 
            was constant repetitive use of her hands and arms in this 
 
            job.  As a mail room clerk, she picked up and delivered mail 
 
            and packages including a large number of boxes which at 
 
            times were heavy.  She also was required to handle paper 
 
            containing confidential proprietary information.  This 
 
            involved collecting and dumping the paper into special 
 
            Dumpsters on each floor and taking the Dumpsters weekly to 
 
            the dock area for pick up.  Claimant was usually rated above 
 
            average in performance with the exception of attendance.  
 
            Claimant left her employment on October 27, 1989, upon the 
 
            advice of physicians and for the immediate purpose of 
 
            receiving surgery.  Claimant was laid off in December 1989.  
 
            Claimant has not returned to work at AT&T or anywhere else.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 On or about October 27, 1989, claimant injured her 
 
            arms, right shoulder and upper right chest area as a result 
 
            of the repetitive use of her hands and arms at AT&T.  This 
 
            injury has occurred gradually beginning in 1988 and mani
 
            fested itself several times since that time.  In March 1989 
 
            claimant experienced a loss of feeling in her right arm and 
 
            was off a few days.  When she returned to work she wore 
 
            wrist/arm splints prescribed by her physician.  She had 
 
            another flare-up in May 1989 at which time she was referred 
 
            to a general surgeon who suggested a change in chair height 
 
            at work.  Finally, on October 27, 1989, claimant was com
 
            pelled by her pain to leave work and she has not returned.
 
            
 
                 It is specifically found that AT&T management was 
 
            aware, or should have been aware, of the work-relatedness of 
 
            claimant's arm and shoulder difficulties as early as March 
 
            1989.  Her supervisors at the time testified that they were 
 
            unaware of any claim that the problems were work-related 
 
            until late fall of 1989.  However, claimant returned to work 
 
            after a few days at AT&T following the March 1989 incident 
 
            with wrist/arm splits.  The undersigned finds it incredible 
 
            to suggest that the wearing of splints at work would not put 
 
            an employer on notice of a potential work injury claim.  
 
            Also, claimant submitted to AT&T a physician's report in 
 
            June 1989, exhibit 4, page 5.  In her portion of the report, 
 
            claimant checked the box "On Duty Accident or Illness."  Her 
 
            physician, Alexander Matthews, M.D., informed AT&T in his 
 
            portion of this same report of the diagnosis of thoracic 
 
            outlet syndrome and the recommendation that the height of a 
 
            chair claimant was using at work be adjusted to prevent fur
 
            ther problems.  This also would suggest to a reasonable 
 
            supervisor at the time that claimant's problems may be 
 
            work-related.
 
            
 
                 Claimant's symptoms since the onset of problems consist 
 
            of pain and numbness in both arms but especially on the 
 
            right which extends into the shoulder, neck and chest area.  
 
            The pain is especially acute at night which greatly disturbs 
 
            claimant's sleep.  The injury is multiplied as three differ
 
            ent conditions which have been diagnosed since October 27, 
 
            1989, namely:  thoracic outlet syndrome, shoulder impinge
 
            ment and myofascial scapular syndrome or fibromyalgia.
 
            
 
                 Claimant also has developed chronic pain syndrome as a 
 
            result of her physical work injuries.  A significant aspect 
 
            of this chronic pain syndrome has been severe depression 
 
            aggravated by the chronic pain and disability from the work 
 
            injury and problems with her workers' compensation claim. 
 
            This depression has also been aggravated by non-employment 
 
            related emotional stress since October 1989 from her 
 
            husband's severe injury and disability, the death of a 
 
            grandchild, and other home stress.  However, the work injury 
 
            remains a significant causative factor in initiating the 
 
            pain syndrome and depression.  The causal connection find
 
            ings herein are based upon the uncontroverted views of all 
 
            of claimant's treating physicians who have offered an 
 
            opinion in this case.  If fact, there is no physician that 
 
            states that any of these symptoms are unrelated to the work 
 
            injury herein. 
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 As a result of the injury of October 27, 1989, claimant 
 
            first underwent a surgical removal of her right upper rib to 
 
            treat the thoracic outlet syndrome in November 1989.  Since 
 
            that time she has continued to experience chronic physical 
 
            pain and numbness in her arms and shoulder but her care has 
 
            remained conservative including physical therapy, use of a 
 
            TNS unit to relieve pain, pain management care and use of 
 
            medication.  In light of the diagnoses with reference to the 
 
            involvement of structures within the shoulder and the upper 
 
            rib resection, the injury clearly extends beyond the arm and 
 
            into the body as a whole.
 
            
 
                 Claimant has received treatment for her chronic pain 
 
            syndrome and depression since April 1990.  Initially, this 
 
            treatment consisted of weekly visits with a clinical 
 
            psychologist and occasional evaluation by a psychiatrist.  
 
            She also attended a pain clinic.  In May 1990, one of her 
 
            psychologists opined that claimant was then unable to work 
 
            because of the combination of the depression and chronic 
 
            pain syndrome.
 
            
 
                 Absent from the record are the current views of 
 
            claimant's psychologist and psychiatrist with reference to 
 
            her emotional state and ability to work due to her emotional 
 
            problems.  Claimant stated at hearing that she continues to 
 
            see her psychologist and psychiatrist every four to six 
 
            weeks for pain management and depression.  She continues 
 
            with anti-depressant medications and biofeedback therapy.  
 
            Although it was found that her emotional problems are 
 
            work-related, given the record, it could not be found that 
 
            these problems currently prevent a return to work suitable 
 
            to her physical difficulties.
 
            
 
                 Claimant's primary treating physician for her physical 
 
            problems has been Scott Neff, D.O., an orthopedic surgeon.  
 
            According to claimant at hearing, he has released her from 
 
            his care.  Claimant continues to take medication for pain 
 
            and inflammation.
 
            
 
                 The work injury of October 27, 1989, was a cause of a 
 
            17 - 37 percent permanent partial impairment to the body as 
 
            a whole.  The range of impairment is due to differing 
 
            ratings of W. C. Koenig, M.D., a physician at the pain 
 
            clinic attended by claimant and a licensed physical thera
 
            pist, Thomas Bower, who treated and evaluated claimant on 
 
            behalf of Dr. Neff.  As the injury extends into the body as 
 
            a whole, the work restrictions are an important element of 
 
            claimant's disability.  The physical therapist agreed with 
 
            Dr. Koenig's permanent restrictions against lifting over 
 
            10-12 pounds more than occasionally and no repetitive or 
 
            rapid movements of upper arms.
 
            
 
                 As Dr. Koenig rated claimant's physical impairment on 
 
            January 15, 1992, it is found that claimant reached maximum 
 
            healing at that time.  The most recent evaluation of her 
 
            condition was performed by Robert Jones, M.D., an neurosur
 
            geon.  On March 29, 1991, Dr. Jones recommended continued 
 
            use of the TNS unit and avoidance of activity that aggra
 
            vates the shoulder.  However, no further treatment recommen
 
            dations were made by Dr. Jones.  He suggested that voca
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            tional rehabilitation and a return to the work force would 
 
            be beneficial, physically and emotionally for claimant.
 
            
 
                 The work injury of October 27, 1989, is found to be a 
 
            cause of a 75 percent loss of earning capacity.  It could 
 
            not be found that claimant was unemployable.  It was readily 
 
            apparent at hearing that claimant is intelligent and articu
 
            late.  Claimant has not looked for work suitable for her 
 
            disability but this is partly due to chronic pain syndrome 
 
            and the lack of vocational rehabilitation counseling.  The 
 
            jobs identified by Management Consulting and Rehabilitation 
 
            Services, Inc, in exhibit 14, had to be rejected as they 
 
            were not based upon the most recent work restrictions 
 
            imposed by Dr. Koenig and Thomas Bower.  I would agree, how
 
            ever, with their conclusion that, with assistance, claimant 
 
            can be rehabilitated.  Unfortunately, no such assistance has 
 
            been provided and claimant today is able to perform only 
 
            unskilled work which does not require extensive use of her 
 
            hands.  Claimant's past employment has consisted of meat 
 
            packing and clerical or technical work involving use of a 
 
            keyboard.  This is the type of work for which she is best 
 
            suited but can no longer perform due to her restrictions.  
 
            The loss of the ability to use hands and arms in a repeti
 
            tive fashion is devastating for an unskilled worker whose 
 
            only significant work experience has involved repetitive use 
 
            of her hands. However, claimant has held responsible posi
 
            tions in the past as a research assistant and specifications 
 
            clerk which did not require extensive use of her hands.  
 
            Claimant is 42 years of age.  She should be in the most pro
 
            ductive years of her working career.  Her impairment is much 
 
            more devastating than would be the case for a younger or an 
 
            older worker.  Claimant has a high school education and has 
 
            demonstrated the ability to perform some college level work.  
 
            Claimant's chronic pain syndrome appears to be a limitation 
 
            for her but her most recent physician believes vocational 
 
            rehabilitation and a return to work is the best therapy for 
 
            this condition.  The award herein should provide the assis
 
            tance needed to accomplish this goal.
 
            
 
                 On October 15, 1990, claimant was notified by AT&T, who 
 
            is self-insured, that her workers' compensation claim herein 
 
            was denied.  No reason was given in this notice for the 
 
            denial, exhibit 15, page 9.  None has been provided to date.  
 
            According to exhibit 14, page 3, claimant is receiving 
 
            long-term disability payments from an AT&T benefits program 
 
            of $299.00 per month and $75l.00 per month from the social 
 
            security disability program.  These payments began on 
 
            October 6, 1991. From October 5, 1990 through October 5, 
 
            1991, claimant was receiving one-half pay or $235.00 per 
 
            week.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            arising out of and in the course of employment.  The words 
 
            "out of" refer to the cause or source of the injury.  The 
 
            words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See generally, Cedar Rapids 
 
            Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).  An employer takes an employee subject to any active 
 
            or dormant health impairments. A work connected injury which 
 
            more than slightly aggravates the condition is considered to 
 
            be a personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 
 
            620, 106 N.W.2d 591 (1961), and cases cited therein.
 
            
 
                 It is not necessary that claimant prove his disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever Court also held that the date of injury 
 
            in gradual injury cases is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever the injury 
 
            date coincided with the time McKeever was finally compelled 
 
            to give up his job.  This date was then used by the Court to 
 
            determine rate and the timeliness of claimant's claim under 
 
            Iowa Code section 85.26 and notice under Iowa Code section 
 
            85.23.
 
            
 
                 In the case sub judice, the evidence was clear that the 
 
            proper injury date was alleged by claimant as that was the 
 
            time that the pain prevented a continuation of work.
 
            
 
                  II.  Defendants have raised the issue of lack of 
 
            notice of the work injury within 90 days from the date of 
 
            the occurrence of the injury under Iowa Code section 85.23.  
 
            Lack of such notice is an affirmative defense.  DeLong v. 
 
            Highway Commission, 229 Iowa 700, 295 N.W. 91 (1940).  In 
 
            light of the decision in McKeever set forth above, the lack 
 
            of notice defense is without merit.
 
            
 
                 III.  Furthermore, the evidence demonstrates that the 
 
            impairment was not confined to the arm.  Consequently, this 
 
            work injury constitutes an injury to the body as a whole 
 
            because it involves a permanent loss or loss of use of more 
 
            portions of the human body than those specifically scheduled 
 
            in Iowa Code sections 85.34(2)(a-t).  See Farmland Foods, 
 
            Inc. v. Ten Eyck, (Court of Appeals Decision, Filed January 
 
            29, 1986); Blacksmith v. All-American, Inc., 290 N.W.2d 348 
 
            (Iowa 1980).  Alm v. Morris Barick Cattle Co., 240 Iowa 
 
            1174, 38 N.W.2d 161 (1949); Dailey v. Pooley Lumber Co., 233 
 
            Iowa 758, 10 N.W.2d 569 (1943).  Therefore, the degree of 
 
            permanent disability must be measured pursuant to Iowa Code 
 
            section 85.34(2)(u).  Unlike scheduled member disabilities, 
 
            the degree of disability under this provision is not mea
 
            sured solely by the extent of a functional impairment or 
 
            loss of use of a body member.  A disability to the body as a 
 
            whole or an "industrial disability" is a loss of earning 
 
            capacity resulting from the work injury.  Diederich v. 
 
            Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
            physical impairment or restriction on work activity may or 
 
            may not result in such a loss of earning capacity.  
 
            Examination of several factors determines the extent to 
 
            which a work injury and a resulting medical condition caused 
 
            an industrial disability.  These factors include the 
 
            employee's medical condition prior to the injury, immedi
 
            ately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            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 75 percent loss of her earning capacity as a result 
 
            of the work injury.  Such a finding entitles claimant to 375 
 
            weeks of permanent partial disability benefits as a matter 
 
            of law under Iowa Code section 85.34(2)(u) which is 75 per
 
            cent of 500 weeks, the maximum allowable number of weeks for 
 
            an injury to the body as a whole in that subsection. 
 
            
 
                 Claimant's entitlement to permanent partial disability 
 
            also entitles her to weekly benefits for healing period 
 
            under Iowa Code section 85.34 from the date of injury until 
 
            claimant returns to work; until claimant is medically capa
 
            ble of returning to substantially similar work to the work 
 
            she was performing at the time of injury; or, until it is 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.  Claimant was off 
 
            work beginning on October 27, 1989, and remained off work 
 
            until she reached maximum healing on January 15, 1992.  
 
            Healing period benefits will be ordered accordingly.
 
            
 
                  IV.  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/she has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).  The parties stipulated that the requested expenses 
 
            were causally connected to the disputed condition.  As it 
 
            was found that all of claimant's arm, shoulder, neck and 
 
            pain syndrome symptoms are work-related, all of the 
 
            requested expenses will be awarded.
 
            
 
                   V. Finally, claimant seeks additional weekly benefits 
 
            under Iowa code section 86.13.  The unnumbered last para
 
            graph of that Code section states that if a delay in 
 
            commencement or termination of benefits occurs without rea
 
            sonable or probable cause or excuse, the industrial commis
 
            sioner shall award extra weekly benefits in an amount not to 
 
            exceed 50 percent of the amount of benefits that were unrea
 
            sonably delayed or denied.  Defendants may deny or delay the 
 
            payment of benefits only when the claim is fairly debatable.  
 
            Seydel v. U of I Physical Plant, (Appeal Decision, Filed 
 
            November 1, 1989).  When the claim is "fairly debatable, the 
 
            insurer is entitled to debate it, whether the debate con
 
            cerns a matter of fact or law."
 
            
 
                 In reviewing the propriety of defendant's actions, Iowa 
 
            Code section 507B.4(9) which contains a listing of unfair 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            claims practices is also useful as a statement of public 
 
            policy as to what conduct is unreasonable in insurance prac
 
            tices.  In the case sub judice, claimant's claim was denied 
 
            but no reason was given.  Although defendant is self-insured 
 
            and not technically subject to Iowa Code section 507B.4(9), 
 
            self-insureds should be held accountable to the same claim 
 
            practices as insurers.  Under this code section, it is an 
 
            unfair claims practice to fail to promptly provide a reason
 
            able explanation of the basis for denial of the claim 
 
            regardless of the merits of the denial.  It is likewise 
 
            unfair under this code section to compel claimant to insti
 
            tute litigation to recover amounts due.
 
            
 
                 Probably the reason why defendant failed to provide a 
 
            reason for denying the claim is that none existed.  The 
 
            views of claimant's physicians causally connecting her arm, 
 
            shoulder and chronic pain to the work injury is uncontro
 
            verted.  The lack of notice defense given the McKeever deci
 
            sion, a well-known decision among insurance professionals in 
 
            Iowa, is frivolous.  As a matter of law, claimant's claim 
 
            herein, especially with reference to her physical com
 
            plaints, was not fairly debatable.
 
            
 
                 However, only a denial in payment of weekly benefits 
 
            can be grounds for imposing the penalty.  Klein v. Furnas 
 
            Elec. Co., 384 N.W.2d 370, 375 (Iowa 1986).  Claimant was 
 
            paid half salary or $235.00 per week, approximately $58.00 
 
            per week less than the compensation rate from October 5, 
 
            1990 through October 5, 1991.  Claimant then received and 
 
            continues to receive approximately $225.00 per month under a 
 
            long-term disability program at AT&T, approximately $240.00 
 
            per week less than the compensation rate.  The penalty shall 
 
            be the sum of $25.00 per week during the time claimant was 
 
            paid one half of her salary and the sum of $100.00 per week 
 
            thereafter until such time as defendant admits liability 
 
            herein and pays the claim.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendant shall pay to claimant three hundred 
 
            seventy-five (375) weeks of permanent partial disability 
 
            benefits at a rate of two hundred ninety-two and 81/l00 
 
            dollars ($292.81) per week from January 15, 1992.
 
            
 
                 2.  Defendant shall pay to claimant healing period ben
 
            efits from October 27, 1989 through January 14, 1992, at the 
 
            rate of two hundred ninety-two and 81/l00 dollars ($292.81) 
 
            per week.
 
            
 
                 3.  As a penalty for an unreasonable denial of bene
 
            fits, defendant shall pay in addition to the above, the sum 
 
            of twenty-five and no/l00 dollars ($25.00) per week from 
 
            October 5, 1990 through October 5, 1991 and the sum of one 
 
            hundred and no/l00 dollars ($100) per week from October 6, 
 
            1991 until such time as liability for the claim is admitted 
 
            and payments at the correct rate of compensation are 
 
            commenced.
 
            
 
                 4.  Defendant shall pay the medical expenses listed in 
 
            the prehearing report.  Claimant shall be reimbursed for any 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            of these expenses paid by him.  Otherwise, defendant shall 
 
            pay the provider directly along with any lawful late payment 
 
            penalties imposed upon the account by the provider.
 
            
 
                 5.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum. 
 
            
 
                 6.  Defendant shall receive credit for previous  pay
 
            ments of benefits under a non-occupational group insurance 
 
            plan, if applicable and appropriate, under Iowa Code section 
 
            85.38(2), less any tax deductions from those payments.
 
            
 
                 7.  Defendant shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 8.  Defendant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, set forth in the prehearing 
 
            report including reimbursement to claimant for the filing 
 
            fee paid in this matter.
 
            
 
                 9.  Defendant shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl, III
 
            Attorney at Law
 
            974 73rd Street
 
            Suite 16
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Thomas J. McCann
 
            Attorney at Law
 
            P O Box 9130
 
            Des Moines, Iowa  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803; 4000
 
                                          Filed March 11, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BARBARA WHEELS,               :
 
                                          :        File No. 936976
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            AT&T,                         :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            
 
                 Non-precedential, extent of disability case.
 
            
 
            
 
            4000
 
            
 
                 Held that a failure to provide prompt explanation of 
 
            the basis for denial of a claim is grounds for an 
 
            unreasonable denial of benefits regardless of the merits of 
 
            a denial.  However, in this case, it was also held that the 
 
            claim was not fairly debateable.  A penalty of $100 per week 
 
            was imposed until defendant admits liability and pays the 
 
            claim.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEBRA RANSOM,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  937119
 
            DCS SANITATION,               :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY AND SURETY,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Debra 
 
            Ransom as a result of injuries to her left hand which 
 
            occurred on September 15, 1989.  Defendants admitted 
 
            compensability for the injury, paid weekly benefits and paid 
 
            medical expenses.
 
            
 
                 The case was heard and fully submitted at Sioux City, 
 
            Iowa, on June 17, 1991.  The record in the proceeding 
 
            consists of joint exhibit 1 through 13 and testimony from 
 
            claimant and Dennis Ransom.
 
            
 
                                      issues
 
            
 
                 The issues presented for determination are the nature 
 
            and the extent of claimant's permanent partial disability.  
 
            Claimant contends that the injury extends to the shoulder of 
 
            the left upper extremity and should be evaluated 
 
            industrially.  Employer contends that the disability is 
 
            confined to the left hand.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Claimant, Debra Ransom, injured her left hand on 
 
            September 15, 1989, when her glove became entangled with a 
 
            high pressure hose and twisted her wrist.  
 
            
 
                 Claimant sought medical treatment and received physical 
 
            therapy for the injury.  She received initial treatment from 
 
            David Mark Tan Creti, M.D., a general practitioner and 
 
            Thomas Ferlic, M.D., an orthopedic specialist.  She was also 
 
            examined by neurosurgeon Alan H. Fruin, M.D.; neurologist 
 
            Len Webber, M.D.; and neurologist Joel T. Cotton, M.D.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The various doctors differ in their opinions on 
 
            impairment and the extent of injury to claimant's left upper 
 
            extremity.
 
            
 
                 Claimant contends that on September 15, 1989, she 
 
            injured her left shoulder and the injury is to the body as a 
 
            whole.  This argument is rejected in that claimant's 
 
            history, as given to the treating doctors, did not recite 
 
            immediate left shoulder complaints.  The documented medical 
 
            history clearly indicates that claimant's symptoms are 
 
            limited to the left hand with pain occasionally in the 
 
            forearm area.  Medical documentation is generally granted 
 
            considerable weight by this commission in that it is 
 
            collected by unbiased professionals in order to provide 
 
            medical treatment.  It is found that the office notes of 
 
            treating doctors, reciting claimant's medical history, are 
 
            more credible than claimant's testimony.  Therefore, it is 
 
            found that claimant has failed to prove by a preponderance 
 
            of the evidence that her injury of September 15, 1989, 
 
            caused permanent disability or injury to the shoulder or 
 
            body as a whole.
 
            
 
                 Dr. Tan Creti opined that claimant suffers from reflex 
 
            sympathetic dystrophy (exhibit 11, page 17).  This opinion 
 
            is rejected in that the treating orthopedic surgeon 
 
            performed tests and specifically ruled out such a diagnosis 
 
            (ex. 7, p. 3).  Dr. Ferlic's opinion on no finding of reflex 
 
            sympathetic dystrophy was supported by neurologist Joel T. 
 
            Cotton, M.D., (ex. 10, p 11).  The opinions of the 
 
            specialists are afforded greater weight as compared to the 
 
            opinion of the treating general practitioner.
 
            
 
                 Dr. Tan Creti rated claimant's impairment at 33 percent 
 
            of the left upper extremity (ex. 11, p. 19).  The weight to 
 
            be given his opinion of impairment is lessened by the 
 
            incorrect diagnosis.
 
            
 
                 Other impairment ratings include Dr. Ferlic's September 
 
            5, 1990, rating of 3 percent to the left hand; Dr. Cotton's 
 
            November 28, 1990, rating of 3 percent to the left hand; and 
 
            Dr. Fruin's April 26, 1990, rating of 15 percent to the body 
 
            as a whole.
 
            
 
                 It is noted that while Dr. Fruin assigned impairment to 
 
            the body as a whole, he found the situs of the disability to 
 
            exist in the hand and wrist.  Dr. Fruin's rating was based 
 
            in part upon objective testing performed by Dr. Webber and 
 
            upon a diagnosis of significant soft tissue injury to 
 
            claimant's left wrist (ex. 5).
 
            
 
                 Dr. Ferlic also assigned impairment to the hand as 
 
            opposed to the upper extremity (ex. 7, p. 1).  Dr. cotton 
 
            essentially adopted Dr. Ferlic's assessment of impairment 
 
            (ex. 10).
 
            
 
                 Based upon a complete review of all the medical 
 
            evidence, it is found that the situs of claimant's permanent 
 
            disability is limited to the left hand.
 
            
 
                 The next issue concerns the extent of permanent 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            functional disability which was caused by the September 15, 
 
            1989, injury.  Impairment ratings range from a low of 3 
 
            percent to the hand to a high of 33 percent to the upper 
 
            extremity.  Dr. Ferlic's opinion of 3 percent is given 
 
            considerable weight due to his position as a treating 
 
            orthopedic surgeon.  However, his assessment of impairment 
 
            is lacking in that no discussion was made of the permanent 
 
            impairment caused by the soft issue injury to the left 
 
            wrist.  Dr. Ferlic appeared to assign his impairment based 
 
            upon nerve damage only.
 
            
 
                 Dr. Cotton saw claimant on only once occasion and also 
 
            based his 3 percent permanent impairment upon nerve damage.  
 
            He also appeared to give little consideration to the soft 
 
            tissue injury when assigning impairment.
 
            
 
                 Dr. Tan Creti rated the left upper extremity at 33 
 
            percent.  His opinion is afforded greater weight due to his 
 
            position as a treating physician.  His lack of orthopedic or 
 
            neurological expertise, however detracts from the weight to 
 
            be given his opinion.  As previously noted, his incorrect 
 
            diagnosis of reflex sympathetic dystrophy also detracts from 
 
            the weight given his impairment rating.
 
            
 
                 Dr. Fruin saw claimant on several occasions, the last 
 
            being March 23, 1990.  He rated claimant's impairment at 15 
 
            percent to the body as a whole based upon the hand injury.  
 
            Dr. Fruin is a neurosurgeon at Creighton University School 
 
            of Medicine.  His expertise and credentials allow 
 
            considerable weight to be given to his opinion.  However, 
 
            this does not mean that his opinion is accepted as correct.
 
            
 
                 Having considered all the evidence and upon applying 
 
            agency expertise, it is found that the September 15, 1989, 
 
            injury caused 17 percent permanent partial disability to 
 
            claimant's left hand.
 
            
 
                                conclusions of law
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The right of a worker to receive compensation for 
 
            injuries sustained which arose out of and in the course of 
 
            employment is statutory. The statute conferring this right 
 
            can also fix the amount of compensation to be paid for 
 
            different specific injuries, and the employee is not 
 
            entitled to compensation except as provided by the statute.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability.  Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); 
 
            Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
            Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 
 
            1983).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 An injury is the producing cause; the disability, 
 
            however, is the result, and it is the result which is 
 
            compensated.  Barton v. Nevada Poultry Co., 253 Iowa 285, 
 
            110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 
 
            758, 10 N.W.2d 569 (1943).
 
            
 
                 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).
 
            
 
                 Claimant failed to prove by a preponderance of the 
 
            evidence that the disability extends into the shoulder and 
 
            body as a whole.
 
            
 
                 A treating physician's testimony is not entitled to 
 
            greater weight as a matter of law than that of a physician 
 
            who later examines claimant in anticipation of litigation.  
 
            Weight to be given testimony of physician is a fact issue to 
 
            be decided by the industrial commissioner in light of the 
 
            record the parties develop.  In this regard, both parties 
 
            may develop facts as to the physician's employment in 
 
            connection with litigation, if so; the physician's 
 
            examination at a later date and not when the injuries were 
 
            fresh; his arrangement as to compensation, the extent and 
 
            nature of the physician's examination; the physician's 
 
            education, experience, training, and practice; and all other 
 
            factors which bear upon the weight and value of the 
 
            physician's testimony.  Both parties may bring all this 
 
            information to the attention of the factfinder as either 
 
            supporting or weakening the physician's testimony and 
 
            opinion.  All factors go to the value of the physician's 
 
            testimony and opinion.  All factors go to the value of the 
 
            physician's testimony as a matter of fact not as a matter of 
 
            law.  Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 
 
            187, 192 (Iowa 1985).
 
            
 
                 Iowa Code section 85.34(2)(l) provides that the loss of 
 
            a hand shall be worth 190 weeks.  The wrist is considered 
 
            part of the hand.  Elam v. Midland Manufacturing, II Iowa 
 
            Industrial Commissioner Reports 141 (Appeal Decision 1981). 
 
            
 
                 Upon considering all the material factors it is found 
 
            that the evidence in this case supports an award of 17 
 
            percent permanent partial disability of the hand which 
 
            entitles the claimant to recover 32.3 weeks of benefits 
 
            under Iowa Code section 85.34(2)(l).
 
            
 
                                        
 
            
 
                                        
 
            
 
                                        
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 
                 Defendants are to pay claimant thirty-two point three 
 
            (32.3) weeks permanent partial disability benefits at the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            rate of one hundred thirty-five and 94/100 ($135.94) per 
 
            week commencing February 16, 1990.
 
            
 
                 It is further ordered that defendants shall receive 
 
            credit for benefits previously paid.
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30. 
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Gregory J. Siemann
 
            Attorney at Law
 
            801 N. Adams
 
            Carroll, Iowa  51401
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St. STE 200
 
            PO Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51402.40 51803.10
 
                      Filed June 25, 1991
 
                      Marlon D. Mormann
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DEBRA RANSOM,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No.  937119
 
            DCS SANITATION,     :
 
                      :  A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            AETNA CASUALTY AND SURETY,    :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            51402.40 51803.1
 
            Claimant alleged that hand injury caused shoulder 
 
            disability.  Claimant's testimony rejected in that all 
 
            treatment was confined to the hand.  Shoulder complaints did 
 
            not appear until permanent partial impairment ratings were 
 
            being assigned.  Medical records from treating doctors found 
 
            more credible than claimant's testimony.
 
            Impairment ratings offered were 3 percent and 3 percent of 
 
            the hand, 33 percent of the upper extremity and 15 percent 
 
            of the body.  It was found that upon considering all the 
 
            evidence and after applications of agency expertise, 
 
            claimant sustained 17 percent permanent partial disability 
 
            to the hand.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 ________________________________________________________________
 
          
 
DENNIS HAMMAN,     
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                         File No. 937459
 
JOHN MORRELL & CO.,     
 
                                      A R B I T R A T I O N
 
     Employer, 
 
                                         D E C I S I O N
 
and       
 
          
 
HOME INSURANCE COMPANY, 
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
                   STATEMENT OF THE CASE
 
 
 
This is a contested case proceeding under Iowa Code chapter 17A.  
 
Claimant, Dennis Hamman, claims to have sustained a work injury on 
 
December 1, 1989 (or, as testified to at trial, on October 31, 1989) 
 
when he was struck by an out-of-control bone cart while in the employ 
 
of defendant John Morrell and Company.  John Morrell is insured by 
 
defendant Home Insurance Company for workers' compensation purposes.
 
This case was heard and fully submitted in Sioux City, Iowa on March 
 
23, 1995.  The record consists of claimant's testimony and joint 
 
exhibits 1 through 14.
 
 
 
                          ISSUES
 
 
 
The parties have stipulated to the following:
 
 
 
1.  An employment relationship existed between claimant and John           
 
Morrell at the time of the alleged injury;
 
 
 
2.  Permanent disability, if any, should be compensated by the        
 
industrial method;
 
 
 
3.  The correct rate of weekly compensation is $238.14;
 
 
 
4.  Entitlement to medical benefits is no longer in dispute;
 
 
 
5.  Prior to hearing, defendants voluntarily paid 191.143 weeks of         
 
compensation at the stipulated rate.
 
 
 
Issues presented for resolution include:
 
 
 
1.  Whether claimant sustained injury arising out of and in the course      
 
    of employment;
 
2.  Whether the injury caused either temporary or permanent disability;
 
3.  The extent of temporary disability;
 
4.  The extent and commencement date of permanent disability;
 
5.  Whether the claim is barred by failure to give timely notice under      
 
    Iowa Code section 85.23.
 
 
 
                          FINDINGS OF FACT
 
 
 
The undersigned deputy industrial commissioner finds:
 
 
 
Dennis Hamman, 49 years of age at hearing, began work with John Morrell 
 
and Company in late 1988.  John Morrell operates a packing house where 
 
claimant worked as a meat cutter and in boxing and trimming.  According 
 
to claimant, he was standing in line to have a barrel of meat scaled 
 
near the end of his shift when he was struck from behind by a clean-up 
 
gondola (a big plastic cart on wheels) loaded to the top with bones.  
 
Claimant testified that he was struck approximately six inches above 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
the beltline, that his head was "jolted" back, that his feet flew out 
 
from under him and that he fell on his buttocks.  He finished his 
 
shift, but was sore the next day, and increasingly so in the days 
 
following, although he kept working.
 
 
 
Claimant indicated that his symptoms progressed, and that eventually 
 
his legs "did not want to operate," that he became clumsy and 
 
stumbling, and that he developed a tingling sensation in the hands.  
 
Radiographic testing eventually disclosed a large ruptured cervical 
 
disk at C5-6, for which he underwent a diskectomy with decompression 
 
and fusion on December 26, 1989.  The treating surgeon was Quintin J. 
 
Durward, M.D.
 
 
 
Unfortunately, claimant suffers residual symptoms from compression of 
 
his spinal cord.  Mr. Hamman claims that this residual disability was 
 
caused by the gondola incident, and accordingly seeks workers' 
 
compensation benefits.
 
 
 
Although the gondola incident, if it happened, should have been 
 
witnessed by the scale worker, others in line and the individual 
 
pushing the gondola, claimant's story is not corroborated by any other 
 
person.  This remains true even though the local union attempted to 
 
help claimant find a witness and that experience teaches that 
 
individuals witnessing such a traumatic incident (a person actually 
 
knocked down by an uncontrolled vehicle) will normally remember the 
 
incident.
 
 
 
Thus, claimant's entire case rests entirely on his credibility as a 
 
witness.  Unfortunately for him, the record convincingly demonstrates a 
 
lack of sufficient credibility to carry the day.
 
 
 
When did this incident happen?  Claimant's petition alleges December 1, 
 
1989.  In his answers to interrogatories, claimant alleged October 23, 
 
1989.  In his deposition testimony (January 10, 1994) and at trial, 
 
claimant testified to October 31, 1989, Halloween Day.  It is unclear 
 
how claimant could now be quite certain of the date, because it 
 
occurred on Halloween, but was so uncertain as to name other dates in 
 
the past, including a date over one month later in his petition (filed 
 
September 30, 1993).
 
 
 
But this discrepancy pales in significant against the specter of 
 
claimant giving repeated false testimony in his deposition, along with 
 
false answers under oath in his answers to interrogatories.
 
In his deposition, claimant first denied seeing any chiropractor other 
 
than Dr. Cliff Meylor after 1981, then allowed that he may have seen a 
 
Dr. Molstad, but did not recall when.  In both cases, he claimed that 
 
he had only been treated for aches in the low back and no other areas.  
 
Actually, claimant received extensive treatment from Dr. Meylor from 
 
1986 through 1988, including complaints of numbness in both hands, the 
 
fingers and the left leg.  In 1987, claimant was seen by Vernon Helt, 
 
M.D., who diagnosed "pinched nerve of neck" with numbness in the left 
 
forearm and left leg.
 
 
 
Claimant repeatedly denied any history whatsoever of preexisting 
 
problems with gait or the neck, low back or legs:
 
 
 
Q.  Prior to October 31st of '89, had you had any neck, low      
 
back, leg problems of any sort?
 
A.  No, sir.
 
Q.  No complaints, nothing?
 
A.  No, sir.
 
Q.  So the first time you had any physical complaints of neck,   
 
leg, back, would have been after October 31st of '89?
 
A.  Yes, sir.
 
And:
 
Q.  Have you ever told any doctor that you had hands, legs,      
 
neck, or back problems prior to October of '89?
 
A.  Not that I can recall, other than Dr. Meylor about getting my     
 
back aligned.  
 
Q.  Do you remember telling Dr. Case about the problem beginning as 
 
early as June of 1989?
 
A.  No, sir.
 
Q.  Do you remember telling him anything about low back pain     
 
beginning as early as June or July of '89?
 

 
 
 
 
 
 
 
 
 
 
 
 
 
A.  No, sir.
 
Q.  So you don't know how he would come to have that idea?
 
A.  No, sir.
 
Q.  You don't remember telling Case about having problems   
 
walking as early as June of '89?
 
A.  No, sir.
 
Q.  And you're saying you never had any problems with walking    
 
before October of '89?
 
A.  No, sir.
 
 
 
The above quotations are offered as illustration.  The transcript of 
 
claimant's deposition abounds with similar false denials.  Similarly, 
 
claimant failed to disclose preexisting symptoms in his answers to 
 
interrogatories, despite specific questions.
 
 
 
Also at extreme variance from claimant's testimony is the history 
 
claimant gave to neurologist James L. Case, M.D., and the treating 
 
surgeon, Dr. Durward.  Dr. Case's chart notes of December 15, 1989 
 
reflect that the patient's complaints "had insidious onset around June 
 
of this year."  When walking, claimant's legs don't "cooperate" and he 
 
had noticed a tendency to stub his toes and felt awkward on his feet.  
 
Dr. Durward's notes of December 23, 1989 reflect that claimant's 
 
difficulty moving his legs had probably been progressing since the 
 
summer, that claimant denied any specific single major injury, and that 
 
while he had been rear-ended by a cart of meat in October, "that was 
 
long after the onset of these symptoms."
 
 
 
In short, claimant's testimony has been shown to be thoroughly 
 
unreliable.  The finder of fact is not persuaded that he was struck by 
 
a bone gondola.
 
 
 
                        CONCLUSIONS OF LAW
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the alleged injury actually occurred and that it arose 
 
out of and in the course of employment.  McDowell v. Town of 
 
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 
 
261 Iowa 352, 154 N.W.2d 128 (1967).  The words "arising out of" refer 
 
to the cause or source of the injury.  The words "in the course of" 
 
refer to the time, place and circumstances of the injury.  Sheerin v. 
 
Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 
 
N.W.2d 283 (Iowa 1971).
 
 
 
As indicated above, claimant does not persuade that he sustained injury 
 
as he claims.  He has failed to meet his burden of proof on the 
 
threshold issue of injury arising out of and in the course of 
 
employment.  Accordingly, defendants prevail.  Other issues are 
 
rendered moot.
 
 
 
                             ORDER
 
 
 
THEREFORE IT IS ORDERED:
 
 
 
Claimant takes nothing.
 
 
 
Costs are assessed to claimant.
 
 
 
Signed and filed this _____ day of June, 1995.         
 
                             ________________________________        
 
                             DAVID RASEY         
 
                             DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Thomas Plaza
 
Attorney at Law
 
701 Pierce St, STE 200
 
PO Box 3086
 
Sioux City, Iowa  51102
 
 
 
Mr. Wilford M. Forker
 
Attorney at Law
 
505 6th St #232
 
Sioux City, Iowa 51101
 
 
 
Mr. James M. Cosgrove
 
Attorney at Law
 
700 Frances Building
 
PO Box 1828 
 
Sioux City, Iowa 51102
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                       5-1402.30
 
                                       Filed June 26, 1995
 
                                       DAVID RASEY
 
 
 
             BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
DENNIS HAMMAN,     
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                        File No. 937459
 
JOHN MORRELL & CO.,     
 
                                     A R B I T R A T I O N
 
     Employer, 
 
                                        D E C I S I O N
 
and       
 
          
 
HOME INSURANCE COMPANY, 
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
 
 
5-1402.30
 
Claimant failed to establish injury arising out of and in the 
 
course of employment.
 
 
 
 
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CLINT VANDERPOOL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 937503
 
            ENVIRONMENTAL SALVAGE,        :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on October 19, 1993, at 
 
            Council Bluffs, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring on December 1, 1989.  The record in the proceeding 
 
            consists of the testimony of James Steele.  The claimant did 
 
            not appear at the hearing even though claimant's attorney 
 
            made a record of the fact that said claimant was notified 
 
            and did not leave any other information concerning his 
 
            whereabouts with his attorney.  The record also consists of 
 
            joint exhibits 1 through 10.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether an injury arose out of and in the course of 
 
            claimant's employment on December 1, 1989;
 
            
 
                 2.  Whether there is any causal connection as to 
 
            claimant's alleged work injury and his alleged disability; 
 
            and,
 
            
 
                 3.  Iowa Code section 85.27 medical benefits, the issue 
 
            being causal connection and authorization.
 
            
 
                                FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant did not appear at the hearing and there is no 
 
            oral evidence presented by the claimant.  The only evidence 
 
            in this case is the joint exhibits and the testimony from 
 
            one witness of defendants.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
                 Joint exhibit 1 reflects that on December 5, 1989, 
 
            claimant complained of a one week history of intermittent 
 
            numbness and tingling of the middle and ring finger of his 
 
            right hand without any history of trauma.  There was a 
 
            mildly positive tinel's sign.  He was advised to return in 
 
            one week if the symptoms did not improve.
 
            
 
                 On December 11, 1989, the record of the same exhibit 
 
            reflects that claimant needed a release to go back to work 
 
            and that he felt fine on said date.  Said release to return 
 
            to work was without restrictions.  
 
            
 
                 Page 6 of joint exhibit 3 is an August 9, 1990 letter 
 
            of Behrouz Rassekh, M.D., a neurosurgeon.  This letter 
 
            indicated that claimant has been having numbness in both 
 
            hands for quite some time and that they recently have been 
 
            getting worse.  Claimant's profession is as a carpenter and 
 
            claimant indicated using a hammer aggravates the symptoms.  
 
            The doctor further reported that a nerve conduction study 
 
            performed in December 1989 confirmed the diagnosis of 
 
            bilateral carpal tunnel syndrome worse on the left.  The 
 
            doctor discussed an option with claimant who on that date 
 
            elected to undergo a decompression of the right median nerve 
 
            which was scheduled for August 20, 1990, as an outpatient at 
 
            Jennie Edmundson Hospital.
 
            
 
                 Page 7 of joint exhibit 3 is the August 20, 1990 
 
            postoperative diagnosis and the procedure done, namely, a 
 
            decompression of the right median nerve.
 
            
 
                 As of February 14, 1991, Dr. Rassekh's letter indicates 
 
            claimant had less edema of the right hand and less pain but 
 
            still had some numbness.  Claimant was released to work as 
 
            of February 20, 1991.
 
            
 
                 The doctor indicated on March 15, 1991, that claimant 
 
            reported no specific injury but indicated he works with his 
 
            hands as a carpenter and does repetitive usage of his hands 
 
            and wrists which the doctor indicated may have caused the 
 
            symptoms by aggravation.  On May 24, 1991, the doctor opined 
 
            that claimant had a 10 percent permanent partial disability 
 
            of his right hand, not of the arm. (Jt. Ex. 3, pp. 10-11)
 
            
 
                 Joint exhibit 10 is the deposition of the claimant 
 
            taken on February 10, 1993.  Claimant testified that his 
 
            injury date was December 2, 1989, although the hearing 
 
            report indicates claimant alleges he sustained an injury on 
 
            December 1, 1989, which is disputed.
 
            
 
                 It appears from the evidence that claimant missed no 
 
            work until he was laid off from his job on December 11, 
 
            1989.  Claimant did not remember telling the doctor on 
 
            December 11, 1989 that he felt fine, but claimant did 
 
            acknowledge that in December 1989 he felt as if he could 
 
            still go on doing his job. (Jt. Ex. 1, pages 1 and 44)
 
            
 
                 Claimant testified as to his collecting unemployment 
 
            after his layoff or termination in December 1989.  He 
 
            applied for construction jobs.  After the December 1989 
 
            layoff, claimant found a job with a roofing company in the 
 

 
            
 
            Page   3
 
            
 
            
 
            early part of 1990 and worked several months until he had 
 
            surgery on his right hand for carpal tunnel syndrome on 
 
            August 20, 1990.  Claimant indicated he was able to do the 
 
            roofing work but contends he did not do any hammering but 
 
            tore off shingles and carried chains.
 
            
 
                 Claimant indicated he sought no treatment for his 
 
            repetitive trauma from December 5, 1989 until August 20, 
 
            1990.
 
            
 
                 James Steele testified that he was the chief financial 
 
            officer of defendant employer but that the company has now 
 
            gone out of business.  He was acquainted with the claimant 
 
            and indicated claimant began with the company on September 
 
            23, 1988 as a laborer or carpenter.
 
            
 
                 Mr. Steele acknowledged that claimant's alleged injury 
 
            of December 1, 1989 was reported to his staff.  Mr. Steele 
 
            indicated that no doctor indicated then that claimant 
 
            couldn't come back as a carpenter.  He had no restrictions 
 
            and claimant did not indicate to him that he was not able to 
 
            do the work as a carpenter.  He said claimant worked until 
 
            December 11, 1989, at which time he was laid off.  He 
 
            indicated claimant was the lowest in seniority and was laid 
 
            off with four others.  He said the reason for the layoff was 
 
            a consolidation of jobs.  He said after this layoff and 
 
            consolidation people were not replaced.
 
            
 
                 He indicated claimant collected unemployment benefits 
 
            after his December 1989 layoff.
 
            
 
                 The undersigned is disturbed by the fact that claimant 
 
            did not appear at the hearing and his attorney heard nothing 
 
            from him and in attempting to contact claimant or find out 
 
            about his whereabouts, he got no satisfaction.  Claimant's 
 
            attorney said he had notified the claimant of the time and 
 
            place and he knows of no excuse whatsoever why the claimant 
 
            should not be at the hearing.
 
            
 
                 The undersigned could draw several conclusions as to 
 
            why the claimant was not at the hearing.  The fact is, 
 
            claimant has the burden of proof.
 
            
 
                 A December 1 date was picked for purposes of the 
 
            hearing report and said date was used in the claimant's 
 
            petition.  Claimant indicated it was December 2 in his 
 
            deposition.  Under the current status of law, it would 
 
            appear that neither of those dates would be an injury date 
 
            in reference to a cumulative trauma.  It appears the first 
 
            time claimant missed work was when he had surgery on August 
 
            20, 1990 on his right hand.
 
            
 
                 There are a lot of areas that could either be clarified 
 
            or substantiated which would have an effect on the 
 
            undersigned making a decision in this case.  Without the 
 
            claimant having interest in his case, it is not up to the 
 
            undersigned to fill in the spaces.  It is not the 
 
            responsibility of the defendants to prove claimant's case 
 
            either.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
                 Under the current status of the law, the undersigned 
 
            could pick a date, particularly in a cumulative injury 
 
            situation, different than the date the parties set out.  The 
 
            problem in this case is that we do not have any specific 
 
            statement from a doctor causally relating claimant's 
 
            problems with a work injury.  It appears to the undersigned 
 
            that there very well could have been a repetitive work 
 
            injury involved here but, likewise, there could very well 
 
            have been other repetitive action in claimant's life that 
 
            had a more substantial effect in his work even though it 
 
            wouldn't necessarily appear that way on the surface.  
 
            Claimant has the burden.  The undersigned cannot carry the 
 
            burden for the claimant.  It appears that claimant felt he 
 
            was able to work after his layoff and in fact tried to get 
 
            work in the construction field after his December 11 layoff 
 
            and did in fact do roofing even though he contends he was 
 
            removing shingles, carrying chains, etc., and was not doing 
 
            the hammering.
 
            
 
                 The evidence seems to indicate that after claimant's 
 
            October 20, 1990 surgery, he was able to do work in the 
 
            construction field.  The doctor indicated that claimant had 
 
            a 10 percent impairment but did not specifically causally 
 
            connect that to claimant's work even though the doctor 
 
            indicated it may have caused it or at least aggravated 
 
            claimant's condition.
 
            
 
                 Since it appears claimant was able to physically do 
 
            work from the time he left defendant until the time he had 
 
            surgery, and since he did do construction-type work or 
 
            roofing work up to or close to the time of his surgery in 
 
            August 1990, one could draw an additional conclusion that 
 
            claimant's ultimate condition was the result of or 
 
            substantially and materially aggravated by his work with 
 
            another employer, in this case a roofing company.
 
            
 
                 The undersigned therefore finds that claimant has 
 
            failed to carry his burden of proving that he incurred an 
 
            injury that arose out of and in the course of his employment 
 
            on December 1, 1989, and that his alleged injuries or 
 
            medical bills incurred were causally connected to a December 
 
            1, 1989 work injury.  Claimant, therefore, takes nothing 
 
            from this proceeding.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on December 1, 
 
            1989, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of December 1, 
 
            1989, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 

 
            
 
            Page   5
 
            
 
            
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 It is further concluded that claimant failed to carry 
 
            his burden to show that he incurred an injury that arose out 
 
            of and in the course of his employment on December 1, 1989.  
 
            He further failed to prove a causal connection between his 
 
            alleged injury of December 1, 1989  and his alleged 
 
            disability and impairment.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing from these proceedings.
 
            
 
                 That claimant pays the costs of this action.
 
            
 
                 Signed and filed this ____ day of November, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr William McGinn
 
            Attorney at Law
 
            699 Walnut
 
            Third Flr
 
            Council Bluffs IA 51503
 
            
 
            Ms Coreen K Bezdicek
 
            Mr Charles Cutler
 
            Attorney at Law
 
            729 Insurance Exch Bldg
 
            Des Moines IA 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1402; 5-1402.30
 
                                              Filed November 1, 1993
 
                                              Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CLINT VANDERPOOL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 937503
 
            ENVIRONMENTAL SALVAGE,        :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1402.30; 5-1402
 
            Claimant failed to appear at hearing.  His attorney was 
 
            present.
 
            Claimant failed to prove he incurred an injury that arose 
 
            out of and in the course of his employment.
 
            Claimant failed to prove causal connection.
 
            Claimant took nothing.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            PENNY KEEGAN,                 :
 
                                          :       File Nos. 954889
 
                 Claimant,                :                 937545
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            ROCKWELL INTERNATIONAL,       :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                               STATEMENT OF THE CASE
 
            
 
                 This is a consolidated proceeding in arbitration 
 
            brought by Penny Keegan, claimant, against Rockwell 
 
            International, Collins Division, employer, hereinafter 
 
            referred to as Collins, a self-insured defendant, for 
 
            workers' compensation benefits as a result of alleged 
 
            injuries on December 7, 1989 and July 13, 1990.  On 
 
            September 16, 1993, 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 hearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the hearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  With reference to the claim of injury on July 13, 
 
            1990, an employee-employer relationship existed between 
 
            claimant and Collins at the time of the alleged injury.
 
            
 
                 2.  On December 7, 1989, claimant received an injury 
 
            arising out of and in the course of employment with Collins.
 
            
 
                 3.  Claimant is seeking temporary total or healing 
 
            period benefits only from March 14--March 26, 1990, May 17, 
 
            1990--May 24, 1990 and from June 6, 1990--June 17, 1990 and 
 
            defendants agree that she was not working during these time 
 
            periods. 
 
            
 
                 4.  If the injury of December 7, 1989 is found to have 
 
            caused permanent disability, the type of disability is a 
 
            scheduled member disability to the right arm
 
            
 
                 5.  At the time of the December 7, 1989 injury 
 
            claimant's gross rate of weekly compensation was $360.40; 
 
            she was single; and she was entitled to one exemption.  
 
            Therefore, claimant's weekly rate of compensation is $218.58 
 
            according to the Industrial Commissioner's published rate 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            booklet for the December 7, 1989 injury. 
 
            
 
                 6.  Medical benefits are not in dispute in either 
 
            claim.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination in this proceeding:
 
            
 
                  I.  Whether claimant received an injury arising out of 
 
            and in the course of employment on July 13, 1990. 
 
            
 
                 II. The extent of claimant's entitlement to disability 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
            File No. 937545 (DOI -12/7/89)
 
            
 
                 Claimant is a 29-year-old former factory worker.  She 
 
            was an employee at Collins from February 1989 until August 
 
            1992 at which time she was laid off.  At the time of the 
 
            1989 injury, claimant was assigned to taking tape off 
 
            circuit boards using a tweezer in her right hand, a very 
 
            repetitious job.  After claimant returned to work in 
 
            February 1990 following carpal tunnel surgery, she was 
 
            assigned to gluing metal parties using a squeeze bottle.  
 
            Later on claimant was bumped to a janitor job then placed 
 
            back on the line assembling bases.  The lay off was economic 
 
            due to lack of work.
 
            
 
                 The injury of December 8, 1989 was carpal tunnel 
 
            syndrome involving the right wrist and arm and over-use 
 
            syndrome as a result of the repetitive work at Collins.  
 
            This finding is based upon the views of the treating 
 
            physician, Charles Grado, M.D., who eventually surgically 
 
            released the carpal tunnel on January 15, 1990.  Claimant 
 
            was released to light duty on January 29 and to full duty on 
 
            March 1.  Claimant was paid for her time off prior to her 
 
            release to full duty.
 
            
 
                 Claimant was off work for three other short periods of 
 
            time in March, May and June and seeks temporary benefits 
 
            accordingly.  These absences were due to back problems and 
 
            additional problems with her wrist, elbow and shoulder.  
 
            However, claimant failed to show by the evidence that these 
 
            absences from work were due to her job at Collins or the 
 
            December 7, 1989 injury.  Dr. Grado's most recent opinion 
 
            does not causally relate any of these problems to claimant's 
 
            work at Collins.  The chiropractor who treated claimant in 
 
            March 1990 for her back states that these problems were due 
 
            to a fall she had in December 1988 while working for a 
 
            different employer.  Dr. Grado describes the May and June 
 
            problems as tendinitis of unknown etiology or origin.  
 
            Claimant sought a second opinion from another physician, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Walter Hales, M.D.  However, Dr. Hales essentially agreed 
 
            with the views of Dr. Grado and deferred to Dr. Grado on the 
 
            causation question.
 
            
 
                 Despite continuing problems since her release from 
 
            care, Dr. Grado has never rated claimant's impairment due to 
 
            the carpal tunnel problems.  The additional symptoms 
 
            interfered with a rating and Dr. Grado refused to rate 
 
            claimant until she completed a physical therapy program.  
 
            Claimant initially participated but eventually dropped out 
 
            when no relief was obtained.
 
            
 
                 Despite the lack of a rating, claimant has shown by the 
 
            evidence a mild amount of permanent impairment from her 
 
            carpal tunnel problems.  Dr. Grado, in a summary report of 
 
            his care and treatment, exhibit 1-5, indicates that, 
 
            although claimant was able to return to her usual 
 
            employment, she has demonstrated an intolerance to 
 
            repetitive motion type of activities.  He strongly counseled 
 
            her to seek other forms of employment.  Obviously this is a 
 
            recommended restriction on repetitive use of claimant's 
 
            right arm and a rather severe loss of use of her hand and 
 
            arm.  Therefore, it is found that the work injury of 
 
            December 7, 1989 is a cause of a 20 percent impairment or 
 
            loss of use to the right arm.
 
            
 
            File No. 954889 (DOI-7/13/90)
 
            
 
                 The above findings are incorporated by this reference.  
 
            However, claimant failed to establish a work injury on July 
 
            13, 1990.  Claimant states that while getting up from a 
 
            picnic table during her lunch break, she experienced an 
 
            immediate onset of back pain.  She states that this pain 
 
            required her absence from work to seek medical treatment.  
 
            The fact that she had pain which required treatment is not 
 
            in question.  Also, there is no dispute as to the diagnosis; 
 
            namely, sprain/strain.
 
            
 
                 The question in this case is the cause of this back 
 
            sprain/strain.  Disinterested witnesses testified that 
 
            claimant did not receive a significant jar and was not 
 
            struck by the table.  It is clear that a simple bending 
 
            motion resulted in pain but there is no physician that 
 
            causally relates that pain to this incident.  Rather the 
 
            entire record demonstrates a prior work injury as the cause 
 
            in December 1988 when claimant fell while working for 
 
            another employer, the Longbranch Restaurant.  Claimant had 
 
            recurring pain for months prior to the July 13, 1990 
 
            incident according to the history she gave to the Iowa 
 
            Medical Clinic where she first received treatment on July 
 
            13, 1990.  Claimant returned to the chiropractor who treated 
 
            claimant after the 12/88 fall and he has always related that 
 
            cause to that fall.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                  I. File No. 954889.  Claimant has the burden of 
 
            proving by a preponderance of the evidence that claimant 
 
            received an injury arising out of and in the course of 
 
            employment.  The words "out of" refer to the cause or source 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            of the injury.  The words "in the course of" refer to the 
 
            time and place and circumstances of the injury. See 
 
            generally, Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 
 
            298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955).
 
            
 
                 In the case sub judice, claimant failed to demonstrate 
 
            a work injury involving her back.
 
            
 
                 II. File No. 937545.  With reference to the December 7, 
 
            1989 injury, it was found to be a loss of use to a scheduled 
 
            member, the arm.  When the result of an injury is loss to a 
 
            scheduled member, the compensation payable is limited to 
 
            that set forth in the appropriate subdivision of Code 
 
            section 85.34(2).  Barton v. Nevada Poultry Company, 253 
 
            Iowa 285, 110 N.W.2d 660 (1961).  "Loss of use" of a member 
 
            is equivalent to "loss" of the member.  Moses v. National 
 
            Union C.M. Co., 184 N.W. 746 (1922).  Pursuant to Iowa Code 
 
            section 85.34(2)(u), the industrial commissioner may 
 
            equitably prorate compensation payable in those cases where 
 
            the loss is something less than that provided for in the 
 
            schedule.  Blizek v. Eagle Signal Company, 164 N.W.2d 84 
 
            (Iowa 1969).
 
            
 
                 Claimant asked that this agency use the AMA guides to 
 
            rate claimant's impairment from the evidence presented. 
 
            However, no physician has used the AMA Guides in this case.  
 
            Although it is improper for this agency to consider the AMA 
 
            Guides for determining permanent disability if no physician 
 
            in the record has utilized these guides to rate impairment, 
 
            this agency may determine scheduled member permanent 
 
            disabilities without a physician impairment rating.  Shank 
 
            v. Mercy Hospital, File No. 719627, Appeal Decisions August 
 
            29, 1989 and September 27, 1991.
 
            
 
                 In the case sub judice, it was found that claimant 
 
            suffered a 20 percent permanent loss of use of her arm.  
 
            Based on such a finding, claimant is entitled to 50 weeks of 
 
            permanent partial disability benefits under Iowa Code 
 
            section 85.34(2)(m) which is 20 percent of 250 weeks, the 
 
            maximum allowable weeks of disability for an injury to the 
 
            arm in that subsection.
 
            
 
                 Claimant failed to demonstrate that absences from work 
 
            after March 1, 1990 were work related and no additional 
 
            healing period benefits will be awarded.
 
            
 
                                       ORDER
 
            
 
                 The claim in file No. 954889 is dismissed with 
 
            prejudice.  Costs are assessed against claimant.
 
            
 
                 With reference to file No. 937545, the following is 
 
            ordered:
 
            
 
                 1.  Defendant shall pay to claimant fifty (50) weeks of 
 
            permanent partial disability benefits at a rate of two 
 
            hundred eighteen and 58/l00 dollars ($218.58) per week from 
 
            March 1, 1990.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 2.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 3.  Defendant shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 4.  Defendant shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 5.  Defendant 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 December, 1993.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. J. Richard Johnson
 
            Attorney at Law
 
            P O Box 607
 
            1715 First Avenue SE
 
            Cedar Rapids, Iowa  52406
 
            
 
            Mr. Scott E. McLeod
 
            Attorney at Law
 
            526 2nd Avenue SE
 
            P O Box 2457
 
            Cedar Rapids, Iowa  52406
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803
 
                                         Filed December 14, 1993
 
                                         LARRY P. WALSHIRE
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            PENNY KEEGAN,  
 
                                            File Nos. 954889
 
                 Claimant,                            937545
 
                      
 
            vs.                           A R B I T R A T I O N
 
                      
 
            ROCKWELL INTERNATIONAL,          D E C I S I O N
 
                                          
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803 
 
            Non-precedential, extent of disability case.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BETTY RYLAND,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 937842
 
            ROSE'S WOOD PRODUCTS,         :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            WEST BEND MUTUAL,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration wherein the only 
 
            dispute is the extent of permanent partial disability.  It 
 
            is stipulated that it is a scheduled disability, but there 
 
            is dispute with regard to whether it is of the hands or the 
 
            arms.  Since the case deals with bilateral injury, the 
 
            disability is compensated pursuant to section 85.34(2)(s), 
 
            that issue does not affect the outcome of the case.  The 
 
            principle dispute centers around the impairment ratings made 
 
            by two different physicians.  
 
            
 
                 The case was heard at Davenport, Iowa, on December 15, 
 
            1993.  The evidence consists of testimony from the claimant 
 
            and jointly offered exhibits A, B, C, and D.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Betty Ryland developed carpal tunnel syndrome and an 
 
            overuse syndrome injury affecting her arms and hands as a 
 
            result of her work at Rose's Wood Products.  (exhibit A, 
 
            pages 1, 2).  She underwent carpal tunnel surgery, first on 
 
            the right hand and later on the left.  Both surgeries were 
 
            performed by William R. Ireyy, M.D., the orthopedic surgeon 
 
            to whom defendants had directed Betty for her care.  Betty's 
 
            recovery from the surgeries was complicated by development 
 
            of symptoms found in reflex sympathetic dystrophy.  The 
 
            treatment was, for the most part, successful and on April 
 
            19, 1991, approximately one year following the surgeries, 
 
            Dr. Irey released claimant to return to regular work.  (ex. 
 
            A, p. 8).  According to the note claimant characterized her 
 
            right hand as "great" but stated that her left hand still 
 
            bothered.  She demonstrated decreased grip strength 
 
            bilaterally.  Dr. Irey assigned a 3 percent impairment 
 
            rating or each upper extremity.  (ex. A, p. 9).  
 
            
 
                 Dr. Irey released claimant without restriction to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            resume regular work.  If his release in that manner was 
 
            correct, the type of work activities which claimant has 
 
            subsequently performed should not have injured her.  A 
 
            medical release without restriction is an indication that 
 
            the physician feels that the individual can work without 
 
            restriction without any significant risk of further injury.
 
            
 
                 Claimant was dissatisfied with the impairment ratings 
 
            provided by Dr. Irey and sought an independent evaluation 
 
            from Xerxes R. Colah, M.D., an orthopedic surgeon in 
 
            Clinton, Iowa.  Dr. Colah rated claimant as having a 25 
 
            percent permanent impairment of her left upper extremity and 
 
            a 10 percent of the right.  When questioned regarding Dr. 
 
            Colah's ratings, Dr. Irey stated, "I believe Dr. Colah's 
 
            method is essentially consistent with recognized procedures 
 
            by the Guides and I would have no objection to it.  I cannot 
 
            account for the discrepancy in results in these two 
 
            different, but accepted, methods of calculation."  (ex. D)  
 
            Dr. Irey based his rating upon table 11 at page 40 of what 
 
            is apparently the third edition, while Dr. Colah used table 
 
            15 at page 46 of the third revised edition.  
 
            
 
                 Claimant has consistency stated that her left hand is 
 
            worse than her right, Dr. Irey's grip strength results show 
 
            the left to be weaker yet, he provided a rating which showed 
 
            them to be equal.  Dr. Irey's rating appears to be based 
 
            solely upon loss of grip strength and the table is one 
 
            generally used for peripheral spinal nerve impairment, Dr. 
 
            Colah used a table designed for entrapment neuropathies, the 
 
            precise condition which afflicts claimant.  Dr. Colah's 
 
            evaluation was performed at a time claimant was making 
 
            normal productive use of her hands, while Dr. Irey's 
 
            evaluation was performed at a time when claimant had not 
 
            been making significant productive use of her hands.  It is 
 
            found to be more accurate to conduct disability evaluations 
 
            at a time when the hands have been used for the things for 
 
            which hands are customarily used rather than at a time when 
 
            the hands have had limited use.  It is found that both 
 
            ratings of impairment are correct under the arbitrary system 
 
            provided by the AMA Guides.
 
            
 
                 It is noted that Dr. Irey initially observed that 
 
            claimant had a positive Tinel's sign in the cubital tunnel, 
 
            the place where the ulnar nerve passes through the elbow.  
 
            Claimant apparently now has a recurrence of those symptoms.  
 
            The evidence in the case does not, however, permit a 
 
            determination of whether those symptoms are a result of the 
 
            work at Rose's Wood Products or whether they have resulted 
 
            from subsequent activities.  It is elementary that the 
 
            existence of a symptom at one point in time does not equate 
 
            to the existence of a permanent condition.  
 
            
 
                    
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                              CONCLUSIONS OF LAW
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An occupational 
 
            disease covered by chapter 85A is specifically excluded from 
 
            the definition of personal injury.  Iowa Code section 
 
            85.61(5); Iowa Code section 85A.8.
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 
            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 A wrist injury is an injury to the hand, not the arm.  
 
            The hand extends to the distal end of the radius and ulna, 
 
            including the carpus or wrist.  Elam v. Midland Mfg., II 
 
            Iowa Industrial Commissioner Report 141 (App. 1981). 
 
            
 
                 Benefits for permanent partial disability of two 
 
            members caused by a single accident is a scheduled benefit 
 
            under section 85.34(2)(s); the degree of disability must be 
 
            computed on a functional basis with a maximum benefit 
 
            entitlement of 500 weeks.  Simbro v. Delong's Sportswear, 
 
            332 N.W.2d 886 (Iowa 1983).
 
            
 
                 Agency rule 343 IAC 3.1 makes the rating from the AMA 
 
            Guides to the Evaluation of Permanent Impairment prima 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            facie evidence of disability under sections 85.34(2)(a - n).  
 
            It is noted that much of the terminology used in the Guides 
 
            is inconsistent with the terminology of the statute.  
 
            Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986).  
 
            Under the Guides the term "upper extremity" can refer to an 
 
            injury which is limited to the hand, an injury which is 
 
            found in the arm but does not affect the hand itself or an 
 
            injury which is located in the shoulder and does not affect 
 
            the hand or arm.  Accordingly, use of the term "upper 
 
            extremity" is not particularly helpful when there is a 
 
            dispute with regard to whether an injury is limited to the 
 
            hand or extends into the arm.  In this case, however, the 
 
            determination is academic since this case falls under 
 
            section 85.34(2)(s).  The ratings from both physicians are 
 
            of the upper extremities.  Even if the disability were 
 
            limited to the hands, as it very well might be, the 
 
            conversion process of taking impairment of the hand into the 
 
            upper extremity and then into the whole person through the 
 
            equivalent value tables brings forth the same result 
 
            regardless of whether the impairment is limited to the 
 
            hands.
 
            
 
                 It is well established that the workers' compensation 
 
            statues are to be construed and applied in a manner which is 
 
            beneficial to the injured person.  The beneficent purpose is 
 
            not to be defeated by a narrow and strained construction.  
 
            Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
            1979).  When there is a choice between arbitrainess or 
 
            fairness, the construction which provides fairness is 
 
            preferred.  Mortimer v. Fruehauf Corporation,  502 N.W.2d 12 
 
            (Iowa 1993).  In this case the rating method used by Dr. 
 
            Colah is found in what was then the most recent edition of 
 
            the Guides and is from a table that is specific for 
 
            claimant's ailment.  Accordingly, that method is preferred.  
 
            It is preferred not because it provides a larger recovery, 
 
            but it is preferred because it provides a more accurate 
 
            assessment of the actual loss of use.  The physical therapy 
 
            report of September 9, 1991, clearly shows marked loss of 
 
            strength in claimant's left hand.  Muscle strength in her 
 
            wrist was apparently normal, but the grip strength of the 
 
            left hand was far less than that of the right.  (ex. C).  
 
            The correction indicated by Dr. Irey resulting in a 20 
 
            percent whole person impairment rather than 21, is correct, 
 
            however.
 
            
 
                 It is therefore concluded that Betty Ryland has a 20 
 
            percent permanent partial disability under the provisions of 
 
            section 85.34(2)(s).  This entitles her to recover 100 weeks 
 
            of permanent partial disability compensation.  That 
 
            compensation is payable as stipulated by the parties 
 
            commencing on October 3, 1990.  Fifteen weeks of benefits 
 
            have already been paid leaving 85 weeks to be paid at the 
 
            rate of one twenty-one and 54/100 dollars ($121.54) per 
 
            week.
 
            
 
                           
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Betty 
 
            Ryland eighty-five (85) weeks of compensation for permanent 
 
            partial disability at that rate of one hundred twenty-one 
 
            and 54/100 dollars ($121.54) per week commencing October 3, 
 
            1990.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendant pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendant file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of January, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Douglas C. Scovil
 
            Attorney at Law
 
            2009 9th Ave
 
            Rock Island, Illinois  61201
 
            
 
            Ms. Vicki Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd Ave
 
            Davenport, Iowa  52801-1596
 
            
 
                 
 
            
 
 
 
 
            
 
            
 
            
 
                                               1803, 1808
 
                                               Filed January 13 1994
 
                                               Michael G. Trier
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            BETTY RYLAND,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                    File No. 937842
 
            ROSE'S WOOD PRODUCTS,    
 
                                                 A R B I T R A T I O N
 
                 Employer, 
 
                                                    D E C I S I O N
 
            and       
 
                      
 
            WEST BEND MUTUAL,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1803, 1808
 
            Where AMA Guides provided two different methods of 
 
            evaluating scheduled impairment, the edition which was most 
 
            recent was preferred as was the table directed specifically 
 
            at claimant's ailment, rather than the general tables.  It 
 
            was also found more accurate to measure impairment at a time 
 
            when the individual had resumed normal daily activities 
 
            rather than at the end of the recuperation period when 
 
            normal use of the affected members had not been resumed.
 
            
 
 
            
 
            
 
            
 
            
 
                                            51803 52700
 
                                            Filed October 7, 1994
 
                                            Walter R. McManus, Jr.
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            ELAINE HANSEN,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 937972
 
            TARGET STORES,                :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
            51803 52700
 
            
 
            Although it was stipulated that claimant had suffered an 
 
            injury, and it was determined that claimant's injury was to 
 
            her body as a whole and not a scheduled member; claimant's 
 
            industrial disability was determined to be zero.  Additional 
 
            medical benefits were denied.