BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         EARL STONE,    
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                                File No. 938101
 
         STONE CONTRACTING & LUMBER,   
 
                                                 A P P E A L
 
              Employer, 
 
                                                D E C I S I O N
 
         and       
 
                   
 
         ALLIED MUTUAL INSURANCE, 
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         February 7, 1994 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of May, 1994.
 
         
 
         
 
         
 
         
 
                                 ________________________________
 
                                          BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Colin J. McCullough
 
         Attorney at Law
 
         701 West Main Street
 
         PO Box 428
 
         Sac City, Iowa  50583
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         701 Pierce Street STE 200
 
         PO Box 3086
 
         Sioux City, Iowa  51102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1100; 5-1803
 
                                               Filed May 13, 1994
 
                                               BYRON K. ORTON
 
                      
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            EARL STONE,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 938101
 
            STONE CONTRACTING & LUMBER,   
 
                                                    A P P E A L
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            ALLIED MUTUAL INSURANCE, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1803
 
            
 
            Claimant failed to show by a preponderance of the evidence 
 
            that his injury was a substantial factor in causing 
 
            additional permanent disability.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            EARL STONE,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 938101
 
            STONE CONTRACTING & LUMBER,   :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIED MUTUAL INSURANCE,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Earl 
 
            Stone, claimant, against Stone Contracting and Lumber, 
 
            employer, and Allied Mutual Insurance, insurance carrier, 
 
            defendants, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury sustained on 
 
            November 24, 1989.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on February 
 
            1, 1994, in Fort Dodge, Iowa.  The record was considered 
 
            fully submitted at the close of the hearing.  The claimant 
 
            was present and testified.  Also present and testifying were 
 
            Jacqueline Stone, Gerry Phillips, Reggie Ringgenberg, and 
 
            Duane Fort.  The documentary evidence identified in the 
 
            record consists of joint exhibits 1 through 18 and 
 
            defendants' exhibits A through F.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and order approving same 
 
            dated February 1, 1994 the parties have presented the 
 
            following issues for resolution:
 
            
 
                 .  Whether claimant's injury is causally connected to 
 
            the disability on which he now bases his claim;
 
            
 
                 .  Whether claimant is entitled to permanent disability 
 
            as a result of his injury and, if so, the extent thereof; 
 
            and
 
            
 
                 .  The appropriate rate of compensation.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on April 13, 1944, and completed the 
 
            twelfth grade of school.  He completed nine weeks of 
 
            bricklayer school in 1966 and owns a construction company 
 
            where he works as a bricklayer.  In 1986, he opened a lumber 
 
            yard which dissolved in February 1990.  
 
            
 
                 Claimant alleges a work injury on November 24, 1989.  
 
            Although claimant was unable to recall the specifics of the 
 
            event, and the record reveals conflicting statements as to 
 
            the incident, defendants have admitted liability and have 
 
            paid claimant healing period benefits and 10 percent 
 
            permanent partial disability benefits at the rate of $252.53 
 
            per week.
 
            
 
                 The documentary evidence identified in the record 
 
            reveals that claimant was treated by Steven E. Burns, D.C., 
 
            for complaints of lower lumbar spine and right leg pain 
 
            beginning in November 1987.  Claimant also presented with 
 
            left sided sciatica.  (exhibit 1, page 1).  On November 16, 
 
            1989, claimant saw Dr. Burns with complaints of tenderness 
 
            in his back.  (ex. 1, p. 2).  Claimant apparently was 
 
            referred by his family physician, Rodney H. Miller, M.D., to 
 
            Quentin J. Durward, M.D., a neurosurgeon, for evaluation.  
 
            Dr. Durward saw claimant on December 6, 1989.  Claimant 
 
            presented to Dr. Durward with complaints of severe low back 
 
            and left leg radiating pain.  Dr. Durward ordered an MRI 
 
            scan.  The results indicated a herniated sequestrated left 
 
            L5/S1 disc.  (exs. 3 & 7).
 
            
 
                 Dr. Durward recommended an L5/S1 diskectomy.  He 
 
            admitted claimant to Marian Health Center on December 8, 
 
            1989, and performed a left L5/S1 microsurgical diskectomy.  
 
            Claimant was discharged on December 11, 1989, and noted to 
 
            be doing extremely well.  He was instructed not to bend, 
 
            lift or sit for the next month.  (ex. 8).
 
            
 
                 Thorir S. Ragnarsson, M.D., saw claimant on January 8, 
 
            1990.  He noted that claimant was doing extremely well with 
 
            complete relief of his radicular pain and numbness and very 
 
            little back discomfort.  His back examination was described 
 
            as benign.  Straight leg raising was completely negative and 
 
            he was prescribed another four- to six-week period of rest.  
 
            (ex. 14).  
 
            
 
                 A follow-up examination with Dr. Ragnarsson occurred on 
 
            February 8, 1990.  At this time, it was noted that claimant 
 
            was completely free of leg pain and had only occasional back 
 
            stiffness and discomfort but no weakness or numbness.  Range 
 
            of motion was normal and straight leg raising negative.  A 
 
            neurological examination was normal.  Claimant was released 
 
            to part-time work in two weeks and gradual full-time work. 
 
            (ex. 15).
 
            
 
                 Claimant returned to Dr. Durward on March 8, 1990.  He 
 
            reported that claimant had done extremely well with complete 
 
            resolution of his preoperative pain and symptoms and had no 
 
            residual complaints.  He was advised that working as a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            bricklayer would slightly increase the risk of having future 
 
            back problems.  He was also advised against heavy lifting.  
 
            At this time, Dr. Durward gave him a 10 percent impairment 
 
            rating due to his ruptured disc.  (ex. 4).
 
            
 
                 Claimant testified that he returned to his prior work 
 
            in February 1990.  He performed all of the usual and 
 
            customary duties associated with his business without 
 
            incident until October 4, 1991, when he presented to Dr. 
 
            Miller with complaints of back pain and shooting pains down 
 
            his left leg.  At this time, he was put on a burst of 
 
            prednisone.  On October 25, 1991, he reported no improvement 
 
            in his condition and Dr. Miller decided to contact Dr. 
 
            Durward for assessment.  (ex. 10, p. 3).
 
            
 
                 Claimant presented to Dr. Durward on November 7, 1991.  
 
            Claimant indicated he had a progressive return of pain in 
 
            his buttocks and left leg, particularly after bending, 
 
            lifting and twisting, 35- to 40-pound blocks.  An MRI scan 
 
            was obtained and revealed typical epidural fibrosis on the 
 
            left at L5/S1 but no evidence of recurrent disc herniation.  
 
            Dr. Durward felt that claimant's pain was inflammatory in 
 
            origin and derived from the heavy twisting, and bending type 
 
            of work that he performed.  He recommended a consultation 
 
            with Leonel Herrera, M.D., for an epidural steroid 
 
            injection.  He also felt that a 25-pound lifting restriction 
 
            and no bending would be appropriate.  (ex. 5).  
 
            
 
                 Claimant presented to Dr. Herrera on April 20, 1992, 
 
            with complaints of low back pain radiating into the left leg 
 
            of six months duration.  Claimant reported that he had an 
 
            epidural flood in February 1992 without improvement in his 
 
            condition.  On examination, claimant had a normal stance and 
 
            gait.  Straight leg raising was negative in both the sitting 
 
            and supine position.  A neurological examination revealed 
 
            normal strength, absent reflex on the left Achilles and a 
 
            decreased patellar tendon at 1/4.  Sensation and cranial 
 
            nerves 2 through 12 were intact.  Dr. Herrera's impression 
 
            was left sacroiliac strain - chronic.  He recommended an SI 
 
            joint injection under fluoroscopy followed by a monitored 
 
            rehabilitation program.  (ex. 16, p. 2).
 
            
 
                 On September 1, 1992, claimant returned to Dr. Miller 
 
            with complaints of back and left leg pain.  Claimant 
 
            manifested a concern that his time to apply for increased 
 
            disability from workers' compensation ran out in December.  
 
            On examination he had good range of motion of the low back 
 
            and negative straight leg raising.  Dr. Miller diagnosed 
 
            fibrosis causing some nerve root compression.  A return 
 
            visit on September 18, 1992, resulted in an assessment of a 
 
            1 percent impairment of the lower extremity.  (ex. 10, p. 
 
            4).
 
            
 
                 Claimant testified that he continues to work as a 
 
            contractor/bricklayer and has not sought any medical 
 
            treatment since his last visit with Dr. Miller in October 
 
            1992.  On November 18, 1993, Dr. Miller reviewed claimant's 
 
            record and history and noted that an MRI in November 1991 
 
            revealed epidural fibrosis around the S1 nerve root with no 
 
            evidence of herniated nucleus pulposis.  He stated that 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant has had no recurrent injury but a recurrence of 
 
            pain due to scarring in the operative area.  (ex. 12).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is whether there is a 
 
            causal connection between claimant's November 24, 1988 
 
            injury and the disability on which he now bases his claim 
 
            for additional permanent partial disability benefits.  
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An occupational 
 
            disease covered by chapter 85A is specifically excluded from 
 
            the definition of personal injury.  Iowa Code section 
 
            85.61(5); Iowa Code section 85A.8.
 
            
 
                 Preponderance of the evidence means greater weight of 
 
            evidence; that is, the evidence of superior influence or 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            efficacy.  Bauer v. Reavell, 219 Iowa 1212, 216 N.W. 39 
 
            (1935).
 
            
 
                 A party's burden as to proof is not discharged by 
 
            creating an equipoise.  Volk v. International Harvester Co.,  
 
            252 Iowa 298, 106 N.W.2d 649 (1960).
 
            
 
                 A factor is substantial when reasonable persons 
 
            considering that factor would regard it as a cause, that is, 
 
            as being in some pertinent part responsible for the result 
 
            produced.  See, Pedersen v. Kuhr, 201 N.W.2d 711 (Iowa 
 
            1972).  
 
            
 
                 A factor is substantial when it is material in 
 
            producing a result.  A factor may be substantial without 
 
            being either exclusively or even predominantly the 
 
            determinant of the result, however.  See Jones v. City of 
 
            Des Moines, 355 N.W.2d 49 (Iowa 1984); Montgomery Properties 
 
            v. Economy Forms, 305 N.W.2d 470 (Iowa 1981).  
 
            
 
                 Additionally consider the following:
 
            
 
                    We are cognizant of the fact that the 
 
                 compensation law is for the benefit of workers and 
 
                 is to be liberally administered to that end.  But 
 
                 it must be administered by the application of 
 
                 logical and consistent rules or formulas 
 
                 notwithstanding its benevolent purpose.  It cannot 
 
                 be made to depend on the whim or sympathetic 
 
                 sentiment of the current administrator or 
 
                 presiding judge.  We apprehend every member of 
 
                 this court is sympathetic to claimant in the 
 
                 instant case.  But the compensation statute is not 
 
                 a charity.  It is a humanitarian law to be 
 
                 administered, not by sympathy, but by logical 
 
                 rules, evolved from the determination of many 
 
                 cases under literally countless factual 
 
                 variations.  Compensation is to be paid by the 
 
                 employer (or [the] insurer) as a matter of 
 
                 contract, not as a gratuity.  It is payable only 
 
                 when the facts show the injury is within the 
 
                 contract--that it 'arose out of and in the course 
 
                 of the contracted employment.'  Bulman v. Sanitary 
 
                 Farm Dairies, 247 Iowa 488, 494, 495, 73 N.W.2d 
 
                 (1955).
 
            
 
                 Claimant has not met his burden of proof as to 
 
            causation.  In December 1989, claimant was found to have a 
 
            classic left L5-S1 disc rupture.  On December 8, 1989, Dr. 
 
            Durward performed a left L5-S1 microsurgical diskectomy.  
 
            Dr. Durward predicted a 95 percent chance of a good result.  
 
            Apparently, his prediction was accurate.  On March 8, 1990, 
 
            Dr. Durward noted that claimant had done extremely well with 
 
            complete resolution of his preoperative pain and symptoms 
 
            with no residual complaints in his back while at work.  He 
 
            was warned that returning to his job as a bricklayer would 
 
            increase the risk of future back problems.  (ex. 4).  
 
            Claimant returned to his job as a contractor/bricklayer and 
 
            worked without incident until October 4, 1991, when he 
 
            presented to Dr. Miller with back pain and radiation into 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the left leg.  An examination by Dr. Durward on October 7, 
 
            1991, elicits an opinion that claimant's pain is actually 
 
            inflammatory in origin and a result of the heavy twisting, 
 
            bending type work that he performs.  (ex. 5).  This language 
 
            suggests that claimant has incurred a new injury unrelated 
 
            to the 1989 injury.  It is evident that claimant's heavy 
 
            work activity subsequent to successful surgery materially 
 
            aggravated his underlying condition.  Although Dr. Miller 
 
            felt that claimant's recurrent pain was due to scarring in 
 
            the operative area, his opinion is not shared by Dr. 
 
            Durward.  Dr. Miller is neither a neurosurgeon or a 
 
            neurologist.  In fact, he referred claimant to Dr. Durward 
 
            in November 1991 and, it is presumed, as in the past, that 
 
            he deferred to Dr. Durward's expert opinion regarding 
 
            claimant's condition.  
 
            
 
                 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; 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 fact finder as either supporting or 
 
            weakening 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 Graphic 
 
            Systems, Inc. v. Prince, 366 N.W.2d 176, 192 (Iowa 1985).
 
            
 
                 In conclusion, the greater weight of the evidence does 
 
            not support claimant's claim that his November 24, 1989 
 
            injury is a proximate cause of the disability on which he 
 
            now bases his claim.  This determination is dispositive of 
 
            the entire case and further analysis is unnecessary.
 
            
 
                           
 
            
 
            
 
            Page   7
 
            
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from these proceedings.
 
            
 
                 The parties shall pay their own costs pursuant to rule 
 
            343 IAC 4.33.
 
            
 
                 Signed and filed this ________ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Colin J. McCullough
 
            Attorney at Law
 
            701 W Main St
 
            PO Box 428 
 
            Sac City, Iowa  50583
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St, STE 200
 
            PO Box 3086
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
            
 
            
 
            
 
                                            51100 51803
 
                                            Filed February 7, 1994
 
                                            Jean M. Ingrassia
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            EARL STONE,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 938101
 
            STONE CONTRACTING & LUMBER,   
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            ALLIED MUTUAL INSURANCE, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            51100 51803
 
            
 
            Claimant failed to show by a preponderance of the evidence 
 
            that his injury was a substantial factor in causing 
 
            additional permanent disability.
 
            
 
 
         
 
         
 
         
 
         
 
   
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER      
 
         ____________________________________________________________
 
                                       :
 
         CARL CASON,                   :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 938202
 
         SIGNAL DELIVERY SERVICE,      :
 
                                       :  A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         ALLSTATE INSURANCE,           :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Carl Cason, 
 
         claimant, against Signal Delivery Service, employer, and All 
 
         State Insurance, insurance carrier, for benefits as the result of 
 
         an injury which occurred on October 25, 1989.  
 
         
 
              A previous hearing was held on June 13, 1991, and in the 
 
         decision of Deputy Industrial Commissioner Jean M. Ingrassia 
 
         filed June 20, 1991, it was determined that claimant sustained an 
 
         injury on October 25, 1989, which arose out of and in the course 
 
         of employment with employer, that the injury was the cause of 
 
         temporary disability, that claimant was entitled to a running 
 
         award of healing period benefits, that claimant was entitled to 
 
         medical benefits, and that defendants failed to prove that 
 
         claimant failed to give proper notice as required by Iowa Code 
 
         section 85.23.
 
         
 
              This hearing was held on July 16, 1992, and the case was 
 
         fully submitted at the close of the hearing.  Claimant was 
 
         represented by Jacob J. Peters.  Defendants were represented by 
 
         E.J. Kelly.  Defendants' attorney presented a brief description 
 
         of disputes at the time of the hearing.  The record consists of 
 
         the testimony of Carl Cason, claimant; Jack Reynolds, vocational 
 
         rehabilitation consultant; and joint exhibits 1 through 30.  Both 
 
         attorneys submitted excellent posthearing briefs.
 
         
 
                                 OFFICIAL NOTICE
 
         
 
              At the request of defendants' counsel official notice is 
 
         taken of the exhibits, transcript and decision of the previous 
 
         hearing held on June 13, 1991.  [Iowa Administrative Procedure 
 
         Act 17A.14(4)].
 
         
 
                                PRELIMINARY MATTER
 
         
 
              At the hearing, the parties agreed that the injury was the 
 
         cause of temporary disability, that claimant was entitled to 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         temporary disability benefits pursuant to the running award, 
 
         until May 21, 1992, and that the commencement date for permanent 
 
         disability benefits, if any were awarded, was May 21, 1992.  The 
 
         rate was agreed to be $505.28 per week.  The parties agreed that 
 
         if it is determined that claimant is entitled to medical benefits 
 
         that the specific benefits to which claimant is entitled and the 
 
         amount of medical benefits can be worked out between the parties.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing on July 16, 1992.  
 
         
 
              Whether the injury was the cause of permanent disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits.
 
         
 
              Whether claimant sustained an injury to a scheduled member 
 
         or to the body as a whole.
 
         
 
              Whether claimant is entitled to medical benefits.
 
         
 
              Whether claimant is entitled to penalty benefits pursuant to 
 
         Iowa Code section 86.13(4).
 
         
 
                                 FINDINGS OF FACT
 
         
 
                      causal connection-permanent disability
 
         
 
              It is determined that the injury of October 25, 1989, was 
 
         the cause of permanent disability to claimant's left hand and his 
 
         right shoulder.
 
         
 
              With respect to causal connection of the left hand injury, 
 
         on November 20, 1989, G. Keith Kennard, M.D., the company 
 
         physician referred claimant to Lanny W. Harris, M.D., an 
 
         orthopedic surgeon, for determination of whether claimant's left 
 
         hand complaints were caused by the injury of October 25, 1989, or 
 
         whether it was something unrelated to his employment (exhibit 7, 
 
         deposition ex. 5).
 
         
 
              Dr. Harris first saw claimant on December 18, 1989, for 
 
         persistent pain in the palmar aspect of the hand over the flexor 
 
         tendon in line with the long finger.  He also found a dorsal mass 
 
         which claimant asserted was not there before the injury.  The 
 
         doctor said an x-ray of November 20, 1989, showed the bone was 
 
         unusually mature to have occurred since the date of injury of 
 
         October 25, 1989, but he felt that a great deal of claimant's 
 
         impairment was secondary to the injury of October 25, 1989 (ex. 
 
         7, dep. ex. 1).  A flexor tendon sheath release and excision of 
 
         the mass was performed on February 13, 1990 (ex. 7, dep. ex. 1, 
 
         page 2; ex. 7, pp. 3-14).
 
         
 
              Dr. Harris testified that claimant received a 5 percent 
 
         permanent impairment to his left hand which was caused by the 
 
         injury of October 25, 1989 (ex. 7, pp. 22-23).
 
         
 
              Claimant was seen by J. Michael Smith, M.D., on June 9, 
 
         1990, for an evaluation.  Dr. Smith concluded that the crush 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         injury of the left hand and especially the left middle finger 
 
         caused flexor tenosynovitis and a subsequent surgical release.  
 
         Proceeding on this history, he determined that claimant had 
 
         sustained a permanent impairment (ex. 1, pp. 16-17).  On May 29, 
 
         1991, Dr. Smith proceeded on the crush injury to the left hand as 
 
         a cause of his left hand problems (ex. 1, p. 22).  On May 12, 
 
         1992, Dr. Smith examined claimant for the third time and 
 
         determined that claimant had sustained 14.5 percent permanent 
 
         impairment to the left hand (ex. 12, p. 6).
 
         
 
              With respect to causal connection of the right shoulder 
 
         injury, Dr. Harris did not believe it was caused by the injury to 
 
         the left hand of October 25, 1989 (ex. 7, p. 24).  Dr. Harris, 
 
         however, admitted that he was retained to examine and treat the 
 
         hand and that his specialty is hand surgery (ex. 7, pp. 28-29).
 
         
 
              Dr. Smith, on June 9, 1990, recorded that claimant reported 
 
         to him that because of the casting, immobilization and disability 
 
         of claimant's left hand and forearm, he performed more activities 
 
         with his right arm and shoulder and felt that it had affected his 
 
         right shoulder which was becoming progressively worse (ex. 1, p. 
 
         15).  Dr. Smith said he developed severe pain and restrictive 
 
         capsulitis, probably as a result of a bursitis in the right 
 
         shoulder (ex. 1, p. 17).  On May 29, 1991, Dr. Smith reported 
 
         that at the time of the crush injury to his left hand he 
 
         attempted to transfer the weight from his left side to his right 
 
         side which caused pain in his right shoulder, but that claimant 
 
         was assured on several occasions that it was very temporary and 
 
         that there would be no problem with the shoulder itself (ex. 1, 
 
         p. 20).  Dr. Smith added, "As a result of the repetitive weight 
 
         bearing on his right upper extremity, he developed a restrictive 
 
         capsulitis."  (ex. 1, p. 22).  In his final report on May 12, 
 
         1992, Dr. Smith said that the right shoulder is rated at between 
 
         10 percent and 15 percent permanent impairment of the body as a 
 
         whole (ex. 12, p. 6).
 
         
 
              Dale E. Darnell, M.D., gave a second deposition (after the 
 
         first hearing and before the second hearing) on May 27, 1992, in 
 
         which he verified that he was a board certified orthopedic 
 
         surgeon who performed (1) an arthroscopy on February 11, 1991, of 
 
         the right shoulder and (2) a second arthroscopy which was  
 
         followed immediately by an open surgery of the right shoulder on 
 
         October 11, 1991 (ex. 25, pp. 3-18).  During the second open 
 
         shoulder surgery, he determined that claimant had sustained a 
 
         severe full thickness rotator cuff tear (ex. 25, pp. 19-20).  The 
 
         operative report of Dr. Darnell on October 11, 1991, states that 
 
         claimant sustained a work-related injury to his right shoulder.  
 
         
 
              Dr. Darnell testified that claimant's on-the-job injuries 
 
         were the cause of his disability because he did not have any 
 
         history that claimant had any problem with his shoulder prior to 
 
         this injury (ex. 25, p. 24).  Dr. Darnell further testified that 
 
         these on-the-job injuries were the cause of claimant's medical 
 
         bills for the care which he received from him (ex. 25, p. 33).  
 
         Thus, Dr. Darnell testified that these on-the-job injuries were 
 
         the cause of claimant's time off work and for the medical bills 
 
         for his care.
 
         
 
              Dr. Darnell further testified that he did not believe that 
 
         the injury of October 25, 1989, as an isolated incident, caused 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         his right shoulder to hurt, but that the cumulative trauma after 
 
         the left hand surgery was the cause of his right shoulder 
 
         problems (ex. 25, pp. 41-42).  The doctor agreed that the 
 
         noninjured extremity was going to do more than the injured 
 
         extremity (ex. 25, p. 51).  Dr. Darnell explained:
 
         
 
                 ...I don't think the problem in his shoulder came as 
 
              a direct result of the refrigerator accident he had.  I 
 
              think it came because of what we talked about before, 
 
              the repetitive use of his arm over a long period of 
 
              time, several months, as a matter of fact which lead 
 
              [sic] to all of this trouble.  It's just a never-ending 
 
              [sic], continuing, downhill process.
 
         
 
              Q.  Based on reasonable medical certainty, is it your 
 
              opinion that Mr. Cason's shoulder injuries are 
 
              work-related [sic]?
 
         
 
              A.  Well, as I said before, I don't think he hurt his 
 
              right shoulder directly.  I think they are indirectly 
 
              related to his accident, with the need for him to 
 
              continue his job in an appropriate manner because of 
 
              his left upper extremity injury.  I guess the answer to 
 
              your question is yes.
 
         
 
         (exhibit 25, pages 53-54)
 
         
 
              Dr. Darnell's opinion prior to the second hearing is 
 
         consistent with his testimony prior to the first hearing when he 
 
         testified by deposition on June 12, 1991, as follows:
 
         
 
              Q.  Do you have an opinion based on reasonable medical 
 
              certainty as to the cause of the anterior impingement 
 
              syndrome and the partial rotator cuff tear of the right 
 
              shoulder?
 
         
 
              A.  Yes.
 
         
 
              Q.  What is that opinion?
 
         
 
              A.  I think that it's an overuse phenomenon as a result 
 
              of his original injury, whenever that was, back 
 
              sometime in 1989, from having to use his shoulder in a 
 
              different manner, in a more stressful manner, if you 
 
              will.  And that's a well-recognized--well, I'm looking 
 
              for the right word-- a well-recognized mechanism of 
 
              injury, if you will, a mechanism of cause of this kind 
 
              of problem.
 
         
 
         (Exhibit 5, page 20)
 
         
 
              Dr. Darnell was the treating orthopedic surgeon for the 
 
         right shoulder.  Dr. Smith, an evaluating physician, concurs with 
 
         Dr. Darnell.  The opinions of Dr. Darnell and Dr. Smith, that the 
 
         injury of October 25, 1989, caused the right shoulder impingement 
 
         which required the rotator cuff surgery is preferred over the 
 
         opinion of Dr. Harris who is a hand surgeon and was retained 
 
         specifically for the purpose of treating claimant's left hand.  
 
         Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 
 
         (Iowa 1985).
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
              When assessing the qualification of expert witnesses the 
 
         opinion of a shoulder surgeon is preferred over the opinion of a 
 
         hand surgeon when a determination is to be made about the causal 
 
         connection of the injury to a shoulder disability.  Reiland v. 
 
         Palco, Inc., Thirty-second Biennial Report of the Industrial 
 
         Commissioner 56 (1975); Dickey v. ITT Continental Baking Co., 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 89 
 
         (1979); Lemon v. Georgia Pacific Corp., I Iowa Industrial 
 
         Commissioner Report 204, 205 (App. Dec. 1981); Clement v. 
 
         Southland Corp, I Iowa Industrial Commissioner Report 56, 58 
 
         (1981).
 
         
 
              The primary issue in this case is whether the injury of 
 
         October 25, 1989, was the cause of both the left hand and right 
 
         shoulder problems.  The fighting issue is the right shoulder. 
 
         Claimant has sustained the burden of proof that this injury was 
 
         the cause of both problems (the left hand and the right shoulder) 
 
         by at least three different methods.  
 
         
 
              First, the treating orthopedic surgeon, Dr. Darnell, and an 
 
         evaluator, Dr. Smith, testified there was a causal connection 
 
         between the injury and permanent disability.  Bodish v. Fischer, 
 
         Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs 
 
         Co., 236 Iowa 296 18 N.W.2d 607 (1945).  Claimant denied and 
 
         there is no medical evidence or other evidence of any left hand 
 
         or right shoulder problems prior to this injury.  Defendants have 
 
         not suggested save prove any other cause for either the left hand 
 
         or right shoulder injury.  
 
         
 
              Second, the right shoulder injury, which is the center of 
 
         the dispute, is determined to be the cause of permanent 
 
         disability because the Supreme Court of Iowa has decided that 
 
         where an accident occurs to an employee in the usual course of 
 
         employment, the employer is liable for all consequences that 
 
         naturally and proximately flow from that accident as sequelae of 
 
         the original injury.  The court explained that if an employee 
 
         suffers a compensable injury and thereafter suffers further 
 
         disability which is the proximate result of the original injury, 
 
         then such further disability is compensable.  Likewise, as 
 
         happened in this case, where an employee suffers a compensable 
 
         injury and thereafter returns to work and as a result thereof, 
 
         the first injury is aggravated and accelerated so that he is 
 
         greater disabled than before, then the entire disability may be 
 
         compensated.  Lawyer and Higgs, Iowa Workers' Compensation--Law 
 
         and Practice, (2d ed.) section 4-4 "Sequelae of Injuries", page 
 
         26; Oldham v. Scofield and Welch, 222 Iowa 764, 767, 266 N.W. 
 
         480, 482 (Iowa 1936).  
 
         
 
              Third, even if the shoulder was a result of a cumulative 
 
         injury, which was combined with the left hand injury, or even if 
 
         it was a separate and distinct injury, a deputy is entitled to 
 
         determine the nature of claimant's injury and entitlement to 
 
         compensation from the evidence presented, regardless of the 
 
         particular theories pled.  Defendants' contention that claimant 
 
         did not plead a cumulative injury is without merit.  Shank v. 
 
         Mercy Hospital Medical Center, file number 719627 (App. Dec. 
 
         1989); Johnson v. George A. Hormel & Co., file numbers 782796 & 
 
         792733 (App. Dec. 1988); McCoy v. Donaldson Company, Inc., file 
 
         numbers 782670 & 805200 (App. Dec. 1989); DeHeer v. Clarklift of 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         Des Moines, file number 804325 (App. Dec. 1989).  Deputies 
 
         determine all issues raised by the evidence within the issues 
 
         designated on the hearing assignment order.  Morrison v. City of 
 
         Ames, file number 843176 (1991).
 
         
 
              Wherefore, it is determined that the injury of October 25, 
 
         1989, was the cause of permanent disability to both claimant's 
 
         left hand and right shoulder.
 
         
 
                         scheduled member-body as a whole
 
         
 
              When disability is found in the hip or shoulder, a body as a 
 
         whole situation exists.  Lawyer and Higgs, Iowa Workers' 
 
         Compensation--Law and Practice, (2d ed.) section 13-4, p. 124.  
 
         Shoulder injuries have long been determined to be injuries to the 
 
         body as a whole.  Nazarenus v. Oscar Mayer & Co., II Iowa 
 
         Industrial Commissioner Report 281 (1982); Godwin v. Hicklin GM 
 
         Power, II Iowa Industrial Commissioner Report 170 (1981); Alm v. 
 
         Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949).  
 
         Rotator cuff injuries are considered to be injuries to the body 
 
         as a whole.  Tarr v. John Deere Waterloo Works, file number 
 
         951330 (1992); Payton v. Sheller-Globe Corp., file number 895808 
 
         (1991); Thomkins v. John Morrell, file number 946532 (1991); 
 
         Teneyck v. Farmland Foods, IV Iowa Industrial Commissioner 
 
         Report, 365 (App. Dec. 1984).
 
         
 
              Former Industrial Commissioner Robert C. Landess determined 
 
         that a loss of range of motion was sufficient to cause an injury 
 
         to the shoulder to be an injury to the body as a whole.  
 
         Fullerton v. Caterpillar Tractor Co., IV Iowa Industrial 
 
         Commissioner Report 135 (App. Dec. 1984).  In this case, both Dr. 
 
         Smith and Dr. Darnell found that claimant had a significant loss 
 
         of motion in his right shoulder, more specifically, in flexion 
 
         and abduction.
 
         
 
              Claimant's greatest impairment and disability is his limited 
 
         ability to reach out with his arm (abduct) or to elevate his arm 
 
         in front of him (flex).  These are functions of the entire 
 
         shoulder, both sides of the glenohumeral joint, and not just the 
 
         arm alone.  Merritt v. Quaker Oats, file number 705825 (1988) 
 
         (aff'd Nov. 9, 1989); Brant v. Iowa Power and Light Co., file 
 
         number 492024 (1987).
 
         
 
              The mere fact that a doctor rates an injury in terms of the 
 
         upper or lower extremity does not mean that the impairment or 
 
         disability is restricted to a schedule.  Pullen v. Brown and 
 
         Lambrecht Earthmoving, Inc., II Iowa Ind. Comm'r Rpt. 308 (App. 
 
         Dec. 1982); Franzen v. Mid-Valley, Inc., Vol 1., No. 4, State of 
 
         Iowa Indust'l Comm'r Decisions, 834 (1985).  It is typical for 
 
         physicians to rate both shoulder and hip injuries with reference 
 
         to the upper and lower extremity.  The shoulder is considered to 
 
         be an element of the right upper extremity.  Guides to the 
 
         Evaluation of Permanent Impairment, 3rd ed. (revised), section 
 
         3.1g - shoulder, page 34.  The hip is considered to be an element 
 
         of the lower extremity.  Guides, chapter 3 (revised), section 
 
         3.2d - hip joint, page 67); Meissner v. Mercy Hospital, file 
 
         number 966555 (1992).  
 
         
 
              From the point of view of the parts of the body involved, 
 
         the shoulder surgery involved the acromion and clavicle which are 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         parts of the body which are clearly on the body side of the 
 
         glenohumeral joint which is the dividing line between the arm and 
 
         the body in the shoulder.  Dailey v. Pooley Lumber Co., 233 Iowa 
 
         758, 10 N.W.2d 569 (1943).
 
         
 
              An injury is a producing cause, the disability however, is 
 
         the result which is to be compensated.  Barton v. Nevada Poultry 
 
         Co., 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              In this case, whether you look to the body parts affected by 
 
         the injury or whether you look to where the disability is 
 
         located, in either event, (1) body parts are affected and (2)the 
 
         disability, derangement and loss of bodily function is in the 
 
         shoulder as distinguished from the arm.  Therefore, it is 
 
         determined that claimant has sustained an injury to the body as a 
 
         whole and that he has not sustained an injury to a scheduled 
 
         member, to wit, the right arm.
 
         
 
              The Supreme Court of Iowa in Lauhoff Grain v. McIntosh, 395 
 
         N.W.2d 834 (Iowa 1986) noted that most other jurisdictions had 
 
         resolved hip and shoulder injuries as whole body injuries and 
 
         cited a long list of cases and then commented that the workers' 
 
         compensation statutes should be interpreted to benefit workers 
 
         and their dependents.  In view of the present state of the law it 
 
         would be a very rare case where a hip or shoulder injury would be 
 
         an injury to the scheduled member.
 
         
 
              Wherefore, it is determined that the injury to the left hand 
 
         is an injury to a scheduled member and the injury to the right 
 
         shoulder is an injury to the body as a whole.
 
         
 
                         entitlement-permanent disability
 
         
 
              Dr. Harris determined that claimant had sustained a 5 
 
         percent permanent impairment of the left hand (ex. 1, pp. 25, 29; 
 
         ex. 7, pp. 22-23; ex. 7, dep. ex. 1, p. 3).  Dr. Harris imposed 
 
         no permanent restrictions on claimant due to the left hand injury 
 
         (ex. 7, p. 23; ex. 7, dep. ex. 1, pp. 4, 15; ex. 1, p. 25). 
 
         
 
              Dr. Smith determined that claimant had sustained a 14.5 
 
         percent permanent impairment of the left hand (ex. 1, p. 17; ex. 
 
         12, p. 6).  Dr. Smith imposed no restrictions on account of the 
 
         left hand, but stated that claimant still complains that the grip 
 
         in his left hand is very weak (ex. 12, p. 5).  
 
         
 
              On June 9, 1990, Dr. Smith determined that claimant had 
 
         sustained a 5.5 percent permanent impairment to the body as a 
 
         whole for the injury to the right shoulder (ex. 1, p. 17).  On 
 
         May 12, 1992, Dr. Smith raised this evaluation and stated that 
 
         the right shoulder is rated at between 10 and 15 percent 
 
         permanent impairment to the body as a whole (ex. 12, p. 6).  The 
 
         second rating was after the second arthroscopy and open shoulder 
 
         surgery which was performed on October 11, 1991.  Dr. Smith added 
 
         that claimant had lost about 90 degrees of total range of motion 
 
         and there was still weakness in the deltoid (ex. 12, p. 6).  
 
         
 
              After the second arthroscopy and open shoulder surgery on 
 
         October 11, 1991, Dr. Darnell commented on January 9, 1992, that 
 
         claimant still had a lot of pain and catching in his right 
 
         shoulder.  On February 3, 1992, Dr. Darnell said that claimant 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         could not abduct much past 80 degrees.  He also stated that 
 
         claimant had not had a terribly satisfying surgical result so far 
 
         (ex. 30, p. 3).  On April 20, 1992, Dr. Darnell recorded that 
 
         claimant felt like he was much worse and was very discouraged 
 
         because of weakness and inability to lift his right arm (ex. 12, 
 
         p. 1).  On May 21, 1992, claimant could only abduct with 
 
         difficulty to 100 degrees and flex to 105 degrees.  
 
         
 
              Dr. Darnell recorded that he himself was not terribly 
 
         pleased with the surgical result.  He released claimant to return 
 
         to work without restrictions because if restrictions were applied 
 
         he felt that the employer would not allow him to return to his 
 
         preinjury job.  He rated the permanent impairment in the upper 
 
         extremity at 15 percent and converted it to 9 percent of the body 
 
         as a whole.  He concluded by stating that Mr. Cason had been very 
 
         cooperative in terms of his rehabilitation efforts and had done 
 
         everything he had been asked to do, but that the result was not 
 
         terribly satisfactory (ex. 30, p. 1).
 
         
 
              Dr. Smith noted that the right shoulder revealed a 9 
 
         centimeter anterior shoulder scar and four healed portals -- one 
 
         anterior, one medial and two posterior -- and keloids had formed 
 
         at all scar sites (ex. 12, p. 6).  
 
         
 
              In his deposition, Dr. Darnell confirmed that after the 
 
         first arthroscopy and prior to the major surgery in October 1991 
 
         claimant had a subjective feeling of catching in his right 
 
         shoulder which was common after a shoulder surgery (ex. 25, p. 
 
         22).  Dr. Darnell testified that he did not believe that claimant 
 
         could perform the job which he was performing at the time of his 
 
         injury (ex. 25, p. 23).  The doctor said normal abduction is 180 
 
         degrees and claimant's performance of 100 degrees demonstrated a 
 
         45 percent loss of abduction of the shoulder.  His 105 degrees of 
 
         flexion out of a possible 180 degrees resulted in a 42 percent 
 
         loss of flexion of the right shoulder (ex. 25, pp. 34-35).  
 
         
 
              At the hearing, claimant demonstrated that he could only 
 
         abduct his right arm to about his navel and he could only flex it 
 
         to approximately to his chest.  Thus, claimant has lost a 
 
         significant amount of flexion and abduction in his right 
 
         shoulder.  Dr. Darnell added that claimant had also sustained 
 
         some weakness in his abductor muscle.  He estimated it was 
 
         possibly 15, 20 or 25 percent of the abductor muscle strength 
 
         (ex. 25, p. 26).
 
         
 
              With respect to restrictions, Dr. Darnell testified that 
 
         claimant would have a very difficult time performing any 
 
         occupation which requires work with his hand in an overhead 
 
         position and that claimant is also foreclosed from repetitive 
 
         overhead work.  Furthermore, he did not feel that claimant had 
 
         enough power in his shoulder to lift anything of significant 
 
         weight to a shelf overhead (ex. 25, pp. 27-28).  The doctor 
 
         thought claimant would be able to drive a car, but had 
 
         reservations about whether he could drive an 18-wheel truck with 
 
         or without power steering (ex. 25, pp. 28-29).  He said claimant 
 
         could push and pull with his arm close to his body, but could not 
 
         do it with his arm away from his body (ex. 25, p. 29).  
 
         
 
              Claimant's job duties were explained to the doctor in a long 
 
         hypothetical question and the doctor stated that he did not 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         believe that claimant could perform those duties (ex. 25, pp. 
 
         31-32).  Thus, Dr. Darnell testified twice that in his opinion 
 
         claimant was foreclosed from his previous employment as a 
 
         line-haul truck driver.  Michael v. Harrison County, 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 218, 
 
         220 (App. Dec. January 30, 1979); Rohrberg v. Griffin Pipe 
 
         Products Co., I Iowa Industrial Commissioner Report 282 (1984).  
 
         
 
              Dr. Darnell added that claimant could do fairly heavy work 
 
         one time, but he could not do heavy work on a repetitive basis, 
 
         nor could he do repetitive work which was light for an eight-hour 
 
         day.  Dr. Darnell explained that his rating of 15 percent to the 
 
         right upper extremity which converted to 9 percent of the body as 
 
         a whole was based upon claimant's loss of motion and weakness in 
 
         the abductor musculature of his right arm.  He did not take into 
 
         account any subjective complaints, such as pain or suffering or 
 
         any socioeconomic factors such as, claimant's age, work 
 
         experience, education, or difficulty that he might have finding 
 
         work (ex. 25, p. 47).  He said his rating was based upon the AMA 
 
         Guides.  Dr. Darnell stated that if he were to include pain in 
 
         his rating, that he would rate claimant at no less than 12 
 
         percent and no more than 15 percent of the body as a whole (ex. 
 
         25, pp. 55-56).
 
         
 
              In conclusion, it can be seen that claimant has two 
 
         significant physical injuries.  His left hand has sustained a 5 
 
         to 14.5 percent permanent impairment.  His right shoulder has 
 
         sustained a 9 to 15 percent permanent impairment to the body as a 
 
         whole.  
 
         
 
              Claimant is a 14-year employee of employer.  He started to 
 
         work on June 21, 1977, and his employment continued until June 
 
         25, 1991.  Thus, claimant is a career employee of employer with a 
 
         good work record as a driver of a Freightliner delivering Sears 
 
         products to satellite country stores in small towns in the 
 
         midwest.  Claimant stated he worked 15 hours a day sometimes and 
 
         earned $870 per week.  He was paid by the hour and by the mile.  
 
         In a statement to a claim representative claimant related that he 
 
         made $980 to $1000 per week and had earned as much as $1300 per 
 
         week (ex. 4, p. 3).  Claimant estimated that his average weekly 
 
         wage for the 13 full weeks prior to the injury amounted to 
 
         $910.96 per week (ex. 6, p. 2).  A detailed accounting for his 
 
         earnings for the period from October 22, 1988 through October 1, 
 
         1991, show that he earned $43,797.74.  If this total is divided 
 
         by the 50 weeks which he worked, the average pay for that year 
 
         was $875.95 per week.  
 
         
 
              Thus, it is easy to say that at age 38, in 1989, claimant 
 
         was certainly near or approaching his peak earnings capacity in 
 
         his adult working life.  Thus, his industrial disability is 
 
         significantly increased.  Becke v. Turner-Busch, Inc., 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 34 
 
         (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa 
 
         Industrial Commissioner Report 426 (1981); McCoy v. Donaldson 
 
         Company, Inc., file numbers 782670 & 805200 (App. Dec. 1989).  
 
         Claimant has completed high school and one year of college.  He 
 
         is intelligent and capable of additional academic or on-the-job 
 
         training.  Claimant testified that when he was in college for one 
 
         year he received B and C grades.  Conrad v. Marquette School, 
 
         Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984).  
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
              First, however, prior to any retraining program claimant 
 
         wants to see if he can return to over-the-road truck driving and 
 
         then if he can't he may pursue retraining.  Prior to this 
 
         employer he drove truck for two years for another company.  Prior 
 
         to that he was a cashier and manager for two years and prior to 
 
         that he was a security guard for three years (ex. 6, p. 11).  A 
 
         vocational consultant reported that claimant has functioned as a 
 
         mail handler, salesman, theater manager, shop owner, and truck 
 
         driver (ex. 27, p. 1).  
 
         
 
              It was arranged between claimant, employer and Jack 
 
         Reynolds, who is a vocational rehabilitation specialist who was 
 
         hired by defendants to find work for claimant, that claimant 
 
         would return to work for employer performing accommodated or 
 
         modified work within his abilities even though Dr. Darnell did 
 
         not formally issue a printed set of restrictions.  This did not 
 
         work out however, because employer lost its contract with Sears 
 
         and was forced to close its doors.   Approximately 130 drivers 
 
         and all of the employer's personnel lost their jobs.  
 
         
 
              Employer wrote a letter of recommendation to whom it may 
 
         concern which claimant could present to future prospective 
 
         employers.  Claimant showed motivation by following up on the job 
 
         leads supplied to him by Reynolds and estimated that he made 18 
 
         applications for employment.  All but one of these applications 
 
         inquired about whether he had previously sustained a work injury.  
 
         The only one who did not ask this question, administered a 
 
         preemployment physical examination.  Claimant hoped he had passed 
 
         it.  
 
         
 
              Claimant testified that he planned to go to work on the 
 
         Monday following this hearing on Thursday for Convoy.  Claimant 
 
         further hoped that he would be able to perform this work and was 
 
         optimistic because the new company loads the truck and hires 
 
         lumpers to unload the trucks.  The prospective employer had 
 
         indicated they might purchase claimant his own truck with a 
 
         sleeper on the truck.  Claimant had expectations of earning $600 
 
         a week with the new employer and from that he would have to 
 
         deduct his own meals and lodging.  
 
         
 
              If claimant's gross pay is reduced from approximately $900 
 
         per week to $600 per week, this constitutes a 33 1/3 percent 
 
         actual loss of earnings provided he is able to actually obtain 
 
         this job, perform it and keep it.  It is speculative at this time 
 
         to say that claimant will, in fact, obtain this employment, be 
 
         able to perform it and keep the job for a protracted period of 
 
         time.  Whether the job works out is speculative future employment 
 
         and awards should not be based upon speculative situations.  
 
         Stewart v. Crouse Cartage, file number 738644 (App. Dec. 1987); 
 
         Umphress v. Armstrong Rubber Co., file number 723184 (App. Dec. 
 
         1987); Sweet v. Carney Bridge and Demolition, Inc., file number 
 
         875653 (App. Dec. 1991).  If claimant is unable to obtain an 
 
         maintain this prospective employment, his actual earnings loss as 
 
         a security guard or cashier, mail handler or theater manager, 
 
         could easily exceed a 50 percent loss of actual earnings.  If 
 
         claimant were fortunate enough to find entry level employment at 
 
         $7.50 per hour, this would amount to $300 per week and his actual 
 
         loss of earnings would amount to 66 2/3 percent of his former 
 
         earnings.  At the time of the hearing, claimant was unemployed 
 

 
         
 
         Page  11
 
         
 
         
 
         
 
         
 
         and had been for over a year.
 
         
 
              Claimant has displayed admirable motivation.  Dr. Darnell 
 
         said he had done everything that he was requested to do.  
 
         Reynolds said that claimant had been very compliant, followed 
 
         advice and seriously followed up on all the leads which he 
 
         supplied claimant.  Claimant has few if any transferable skills 
 
         other then truck driving.  Dr. Darnell, his treating orthopedic 
 
         surgeon for his shoulder, did not believe he would be able to 
 
         perform the work as an over-the-road truck driver.
 
         
 
              With respect to his left hand, claimant testified that his 
 
         small finger, left ring finger and left thumb worked okay, but 
 
         that his left index and long finger functioned badly.  He said he 
 
         still had pain in his right shoulder but it was not as bad as it 
 
         was.  He was anxious to try to drive again.
 
         
 
              Reynolds testified that his job is to assist injured and 
 
         disabled persons by assessment, counseling and placement.  He has 
 
         two masters degrees, one in general counseling and another in job 
 
         placement.  He has the designation of C.R.C., since 1987, which 
 
         is a certified rehabilitation counselor.  He is a member of The 
 
         National Association Of Rehabilitation Professionals.  He 
 
         contacted claimant on April 6, 1992, with instructions from the 
 
         insurance carrier to find claimant a job, preferably with 
 
         employer, but if not then with someone else.  
 
         
 
              Reynolds testified that it was all set up for claimant to 
 
         return to work with employer on May 7, 1992, with accommodated 
 
         job duties where necessary, but basically claimant would be 
 
         performing the same job for the same pay.  Employer, claimant and 
 
         Reynolds were all in agreement and then employer lost the Sears 
 
         contract and the company dissolved.  
 
         
 
              Reynolds hoped that claimant was employable in trucking 
 
         because he has the skills, experience, motivation, and good 
 
         attitude.  Some trucking jobs however might need accommodation.  
 
         He estimated that $640 was a reasonable expectation that claimant 
 
         might be able to earn in trucking.  Reynolds' understanding of 
 
         claimant's limitations were that he could not use his right 
 
         shoulder to lift his right arm overhead and that he could not 
 
         perform repetitive tasks with his right arm.  Reynolds thought 
 
         that claimant was restricted from heavy work but that he could 
 
         perform work in the sedentary, light and medium range.  Being 
 
         foreclosed from heavy work and inability to lift his right arm 
 
         above shoulder level is a substantial industrial disability loss 
 
         for an over-the-road truck driver.
 
         
 
              Reynolds testified that he was not requested to assess 
 
         claimant's employability, his access to the employment market or 
 
         his actual loss of earnings.  He was only asked to place claimant 
 
         in suitable employment.  Injured workers are harder to place and 
 
         do suffer some loss of access to the employment market.  Reynolds 
 
         said he had not been asked to prepare any statistics and had none 
 
         to offer.  He was complimentary of claimant and hoped the 
 
         prospective employment on Monday would work out but whether it 
 
         did or not remained to be seen.
 
         
 
              Claimant was examined by Donald R. Vogenthaler, Rh.D., and 
 
         Richard L. Gibson, Ph.D.  A report of May 28, 1992, says that 
 

 
         
 
         Page  12
 
         
 
         
 
         
 
         
 
         claimant was interviewed on May 18, 1992, to determine his "loss 
 
         of capacity to perform work and earn money, if any, as a result 
 
         of a shoulder and hand injury sustained in an accident that 
 
         occurred in October of 1989."  (ex. 27, p. 1).  They said that 
 
         standardized tests revealed that claimant was below average in 
 
         terms of word recognition and arithmetic achievement.  Their 
 
         assessment included socioeconomic factors such as age, education, 
 
         previous work experience, as well as their standardized test 
 
         results.  
 
         
 
              These consultants concluded that claimant was restricted to 
 
         work of a sedentary to light nature requiring below average 
 
         manual and finger dexterity.  Based on their calculations, they 
 
         concluded that claimant has a loss of capacity to perform work in 
 
         a range of between 74 percent to 84 percent.  What was described 
 
         as loss of capacity to perform work appears to this deputy to be 
 
         loss of access to the labor market.  In fact, they called it that 
 
         in their report.  Vogenthaler and Gibson concluded that claimant 
 
         also sustained a loss of expected earnings in a range of between 
 
         80 percent and 90 percent.  They also concluded that claimant 
 
         sustained a loss of work-life expectancy in the range of between 
 
         50 percent and 60 percent (ex. 27, pp. 1-2; ex. 24).  
 
         
 
              Defendants assert that the fact that the plant closed is an 
 
         economic factor which should not increase claimant's industrial 
 
         disability citing Webb v. Lovejoy Construction Co., II Iowa 
 
         Industrial Commissioner Reports, 430 (App. Dec. 1981) (Dist. Ct. 
 
         aff'd & Supreme Ct. dismissed).  However, it is the determination  
 
         of this deputy that this case does not apply because the earning 
 
         capacity of the entire work force was not decreased because this 
 
         one, single employer closed up its operation and was forced to 
 
         discharge 135 truck drivers and some other personnel.  The 
 
         closing of this employer's operation would not affect the earning 
 
         capacity of the entire work force in the area of Kansas City, 
 
         Missouri, and Kansas City, Kansas.  Furthermore, it has been 
 
         determined that a plant closing is a factor which can be used to 
 
         increase industrial disability.  Mejorado v. Caterpillar Tractor, 
 
         file number 438551 (App. Dec. 1990); Oscar Mayer v. Tasler, 483 
 
         N.W.2d 824 (Iowa 1992).  Moreover, as claimant's counsel pointed 
 
         out, claimant is not on an equal par in the competitive labor 
 
         market with the other 135 employee's who got laid off because of 
 
         his injury and the restrictions which it has imposed upon him.  
 
         Most of the other workers may be bodied, whereas claimant is 
 
         seriously impaired.
 
         
 
              Wherefore, based upon () based upon a permanent impairment 
 
         rating of between 5 percent and 14.5 percent of the left hand; () 
 
         based upon a permanent impairment rating of between 9 percent and 
 
         15 percent to the body as a whole due to the right shoulder 
 
         injury; () based upon the fact that claimant's treating 
 
         orthopedic surgeon testified that claimant was foreclosed from 
 
         performing the work of an over-the-road truck driver that he had 
 
         performed before the injury; () based upon the fact that claimant 
 
         can only abduct his right arm to 100 degrees and flex his right 
 
         arm to 105 degrees, which amounts to a 45 percent and 42 percent 
 
         loss respectively of range of motion in these two planes; () 
 
         based upon the fact that claimant has a loss of grip strength in 
 
         the index and middle finger on the left hand; () based upon the 
 
         fact that claimant has a loss of abductor musculature which 
 
         causes permanent weakness in his right arm and shoulder; () based 
 

 
         
 
         Page  13
 
         
 
         
 
         
 
         
 
         upon the fact that claimant is foreclosed from performing 
 
         overhead work or repetitive work with his right hand, arm and 
 
         shoulder; () based upon the fact that claimant has sustained 
 
         anywhere between a 33 1/3 percent and a 66 2/3 percent loss of 
 
         actual earnings depending on his success in obtaining and 
 
         maintaining employment as an over-the-road truck driver in spite 
 
         of the professional opinion of his treating orthopedic surgeon; 
 
         () based on claimant's cooperation with the doctors and his 
 
         strong motivation that he has exhibited to return to work; () 
 
         based upon the fact that claimant has very few, if any, 
 
         transferable skills; () taking into consideration and giving some 
 
         weight to the exaggerated losses described by Vogenthaler and 
 
         Gibson (exs. 24 & 27), tempered with agency expertise in loss of 
 
         earning capacity, access to the employment market, employability 
 
         and projected actual earning losses; () considering claimant's 
 
         high school education, one year of college with B and C grades, 
 
         and the work he has demonstrated during his entire adult working 
 
         lifetime; () based upon all of the facts introduced into evidence 
 
         in this case; and () based upon all the factors used to determine 
 
         industrial disability, Christensen v. Hagen, Inc., vol. I, no. 3, 
 
         State of Iowa Industrial Commissioner Decisions 529 (App. Dec. 
 
         March 26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 
 
         3 State of Iowa Industrial Commissioner Decisions 654, 658 (App. 
 
         Dec. February 28, 1985); it is determined that claimant has 
 
         sustained a 45 percent industrial disability to the body as a 
 
         whole.  Speer v. Super Valu Stores, Inc., file number 792171 
 
         (App. Dec. 1988) which can be found at page 548 of Decisions of 
 
         the Industrial Commissioner, July 1, 1988 through June 30, 1989, 
 
         published by the Iowa Association of Workers' Compensation 
 
         Lawyers, Inc.
 
         
 
                                        
 
         
 
                                 medical benefits
 
         
 
              Dr. Darnell identified several medical bills and verified 
 
         that the bills for his treatment were caused by this injury (ex. 
 
         25, pp. 32-33).  Deputy Ingrassia awarded medical expenses also 
 
         in the first hearing.
 
         
 
              It is determined that claimant is entitled to medical 
 
         benefits for all of his medical treatment for both his left hand 
 
         and his right shoulder.  The parties agreed that they could 
 
         determine between themselves what bills and the amounts that 
 
         should be paid.
 
         
 
                                 penalty benefits
 
         
 
              With respect to the right shoulder it is determined that 
 
         claimant is not entitled to penalty benefits because defendants 
 
         disputed injury and causal connection with respect to the right 
 
         shoulder injury.  Generally, penalty benefits are not awarded 
 
         where there is a legitimate dispute on either causation or the 
 
         extent of impairment.  Juste v. HyGrade Food Products Corp., IV 
 
         Iowa Industrial Commissioner Reports, 190 (App. Dec. 1984).  
 
         Likewise, in more recent times it has been determined that 
 
         penalty benefits are not due where defendants assert a claim that 
 
         is fairly debatable.  Seydel v. University of Iowa Physical 
 
         Plant, file number 818849 (App. Dec. 1989); Stanley v. Wilson 
 
         Foods, file number 753405 (App. Dec. 1990); Heidt v. Linn Photo 
 

 
         
 
         Page  14
 
         
 
         
 
         
 
         
 
         Co., file number 916737 (App. Dec. 1992); Place v. Giest 
 
         Construction Co., file numbers 931185, 891539 (1992); Shelton v. 
 
         McDonald's Hamburgers, file number 976855 (1992); Boyd v. Western 
 
         Home, file number 890207 (App. Dec. 1991).
 
         
 
              Awarding a penalty is not appropriate when there is a 
 
         legitimate issue on causal connection even if benefits are 
 
         subsequently awarded.  Peterman v. American Freight System, file 
 
         number 747931 (App. Dec. 1988); Austin v. Nealy Mfg., file number 
 
         848293 (1988); Cook v Iowa Meat Processing, file numbers 724392, 
 
         727578 (1985).  
 
         
 
              Defendants were justified in questioning whether the right 
 
         shoulder injury was caused by the accident that occurred on 
 
         October 25, 1989, when claimant smashed his left hand against a 
 
         trailer when he lost the balance of a 250 to 300-pound 
 
         refrigerator.  Claimant asserted that he reported right shoulder 
 
         problems to his supervisor and the terminal supervisor as well as 
 
         Dr. Kennard and Dr. Harris.  
 
         
 
              The two supervisors denied any recollection that claimant 
 
         complained of his right shoulder.  Dr. Kennard's records did not 
 
         show any complaints of his right shoulder, but claimant testified 
 
         that he did mention his right shoulder and that he was told it 
 
         would subside in time.  Dr. Harris does not have an early record 
 
         of the right shoulder in December 1989 when he first saw 
 
         claimant, but does report the right shoulder complaints on April 
 
         17, 1990.  Dr. Harris told the employer that he did not believe 
 
         the right shoulder complaints were caused by the injury of 
 
         October 25, 1989.  Defendants, therefore, were justified for not 
 
         paying benefits on account of the right shoulder complaints.  
 
         With respect to the right shoulder it cannot be said that they 
 
         delayed the commencement of benefits without reasonable or 
 
         probable cause or excuse.  Iowa Code section 86.13(4).  This is 
 
         not a situation where defendants obtained an opinion to support 
 
         their denial just immediately prior to hearing.  West v. O'Bryan 
 
         Bros., Inc., file number 894094 (1991).
 
         
 
              The fairly debatable standard announced in the tort case of 
 
         Dolan v. Aid Insurance Co, 431 N.W.2d 790 (Iowa 1989) appears to 
 
         have been adopted for workers' compensation cases in Dodd v. 
 
         Oscar Mayer Foods Corp., file number 724378 (1989); Throgmartin 
 
         v. Precision Pulley, Inc., file number 885869 (1990); Collins v. 
 
         Hawkeye Moving and Storage, file number 873651 (1990).  
 
         
 
              With respect to the left hand, claimant is entitled to 
 
         penalty benefits because defendants delayed and failed to 
 
         commence and pay claimant permanent partial disability for the 
 
         injury to his left hand without reasonable or probable cause or 
 
         excuse.  Iowa Code section 86.13(4).  
 
         
 
              Dr. Kennard, the company physician, sent claimant to Dr. 
 
         Harris to determine whether the left hand injury was due to the 
 
         accident which claimant reported had occurred on October 25, 
 
         1989.  Dr. Harris determined that even though a portion of the 
 
         injury appeared to be preexisting it appeared that a great deal 
 
         of his impairment at that time was secondary to the injury (ex. 
 
         1, p. 28).  On May 25, 1990, Dr. Harris stated, "It's my 
 
         impression he's reached maximum improvement in the function of 
 
         his left hand and has a residual impairment of 5% of his left 
 

 
         
 
         Page  15
 
         
 
         
 
         
 
         
 
         hand." (ex. 1, p. 25).  
 
         
 
              Therefore, based upon their own expert, selected by the 
 
         company physician, it is determined that the injury of October 
 
         25, 1989, was the cause of claimant's hand impairment and that 
 
         claimant was entitled to payment for 5 percent impairment to the 
 
         left hand back on May 25, 1990.  If defendants were controlling 
 
         the medical, they should not have been denying the injury.  
 
         Defendants did not dispute an injury to the left hand at the 
 
         first hearing.  Therefore, it is determined that defendants did 
 
         delay the commencement of permanent partial disability benefits 
 
         for the injury to the left hand without reasonable or probable 
 
         cause of excuse.  Iowa Code section 86.13(4).  Where the employer 
 
         fails to pay permanent partial disability in accordance with the 
 
         rating of his own chosen physician (the lowest rating in the 
 
         record), the failure to pay was determined to be unreasonable and 
 
         a 50 percent penalty was assessed.  Stanley v. Wilson Foods 
 
         Corp., file number 753405 (1989).
 
         
 
              The allowance for a hand is 190 weeks.  Iowa Code section 
 
         85.34(2)(l).  Five percent of 190 weeks equals 9.5 weeks.  Fifty 
 
         percent of the stipulated rate of $505.28 is $252.64.  The 50 
 
         percent penalty benefits of $252.64 times 9.5 weeks which are the 
 
         minimum amounts of permanent partial disability benefits that 
 
         employer should have paid to claimant amounts to $2,400.08.  This 
 
         penalty is certainly not harsh when it is considered that Dr. 
 
         Smith determined that claimant had sustained a 14.5 percent 
 
         permanent impairment to the left hand just four months later on 
 
         June 9, 1990 (ex. 1, p. 17).  
 
         
 
              Defendants contend that since claimant did not designate 
 
         penalty benefits as a hearing issue at the time of the first 
 
         hearing, that claimant is now precluded from asserting penalty 
 
         benefits at this second hearing.  This is not correct.
 
         
 
              First, penalty benefits are being determined for permanent 
 
         disability benefits.  Permanent disability benefits were not an 
 
         issue at the first hearing.
 
         
 
              Second, as noted earlier, deputies determine all issues 
 
         designated as hearing issues which are supported by the evidence.  
 
         Penalty benefits were designated a hearing issue.  The evidence 
 
         support that they should be paid.  Defendants offered absolutely 
 
         no reason for not paying permanent disability benefits which were 
 
         determined by their own medical expert as 5 percent to the left 
 
         hand.
 
         
 
              Claimant asserts that he is entitled to penalty benefits on 
 
         the running award of temporary benefits awarded by Deputy 
 
         Ingrassia at the first hearing.  Claimant filed a motion for 
 
         sanctions after the first hearing because defendants refused to 
 
         pay the running award.  The industrial commissioner joined the 
 
         motion for sanctions with this second hearing.
 
         
 
              Defendants appealed the running award but the commissioner 
 
         refused to rule on the appeal because it was an interlocutory 
 
         matter because it was the result of a bifurcated proceeding which 
 
         did not finally dispose of the case.
 
         
 
              Claimant brought an action in the district court for a 
 

 
         
 
         Page  16
 
         
 
         
 
         
 
         
 
         judgement on the running award, but the action was dismissed 
 
         because the running award was not a final disposition of the case 
 
         as required by Iowa Code section 86.42.
 
         
 
              It is determined that claimant is not entitled to penalty 
 
         benefits based upon defendants' failure to pay the running award.  
 
         The award was interlocutory.  It did not finally dispose of the 
 
         case.  Defendants are not obligated to pay an award until it is 
 
         finally adjudicated that they are obligated to pay it.  As 
 
         pointed out by defendants in their posthearing brief, if 
 
         defendants were to pay the award, and then win on appeal, there 
 
         would be no way they could recover the benefits paid.  It is 
 
         generally understood that defendants are not obligated to pay an 
 
         award until it is finally determined that they are obligated to 
 
         pay the award.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based upon the foregoing and following principles 
 
         of law, these conclusions of law are made:
 
         
 
              That the injury of October 25, 1989, was the cause of 
 
         permanent disability to claimant's left hand to his right 
 
         shoulder.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).
 
         
 
              That the injury to the left hand was a scheduled member 
 
         injury and that the injury to the right shoulder was an injury to 
 
         the body as a whole.
 
         
 
              That claimant sustained a 45 percent overall industrial 
 
         disability to the body as a whole and is entitled to an award of 
 
         225 weeks of permanent partial disability benefits.  Iowa Code 
 
         section 85.34(2)(l) and (u).
 
         
 
              That the injury of October 25, 1989, was the cause of all of 
 
         claimant's medical expenses for the left hand and the right 
 
         shoulder and that claimant is entitled to be reimbursed for all 
 
         of these expenses which total several thousand dollars, but the 
 
         parties agreed at the hearing that they could work out the amount 
 
         of benefits to be paid.
 
         
 
              That claimant is not entitled to penalty benefits for delay 
 
         in the commencement of either healing period of permanent partial 
 
         disability benefits with respect to the right shoulder, but that 
 
         defendants are liable for penalty benefits for failure to timely 
 
         pay permanent partial disability benefits for the left hand.  
 
         Iowa Code section 86.13(4).
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant two hundred twenty-five 
 
         (225) weeks of permanent partial disability benefits at the 
 
         stipulated rate of five hundred five and 28/100 dollars ($505.28) 
 
         per week in the total amount of one hundred thirteen thousand six 
 
         hundred eighty-eight dollars ($113,688) commencing on May 21, 
 
         1992, as stipulated to by the parties.
 
         
 

 
         
 
         Page  17
 
         
 
         
 
         
 
         
 
              That defendants pay to claimant two thousand four hundred 
 
         and 08/100 dollars ($2,400.08) in penalty benefits.
 
         
 
              That all accrued weekly benefits and penalty benefits are to 
 
         be paid in a lump sum.
 
         
 
              That interest will accrue on normal weekly benefits from 
 
         when due pursuant to Iowa Code section 85.30.  That interest on 
 
         penalty benefits will accrue from the date of this decision.
 
         
 
              That defendants pay to claimant or the provider of medical 
 
         supplies and services several thousand dollars in medical 
 
         expenses for the left hand and the right shoulder and that the 
 
         parties agreed that they could work out the payment of medical 
 
         benefits without a specific award in this decision.
 
         
 
              That the costs of this action are charged to defendants 
 
         pursuant to Iowa Code section 86.40 and rule 343 IAC 4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to rule 343 IAC 3.1.
 
         
 
              Signed and filed this ____ day of August, 1992.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Jacob J. Peters
 
         Attorney at Law
 
         233 Pearl St
 
         PO Box 1078
 
         Council Bluffs, IA  51502
 
         
 
         Mr. E.J. Kelly
 
         Attorney at Law
 
         2700 Grand Ave. STE 111
 
         Des Moines, Iowa  50312
 
         
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CARL CASON,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 938202
 
            SIGNAL DELIVERY SERVICE, INC.,:
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLSTATE INSURANCE,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration filed by Carl 
 
            Cason, claimant, against Signal Delivery Service, Inc., 
 
            identified as employer, and Allstate Insurance Company, 
 
            identified as insurance carrier, to recover benefits under 
 
            the Iowa Workers' Compensation Act as the result of an 
 
            injury sustained on October 25, 1989.  This matter came on 
 
            for hearing before the undersigned deputy industrial 
 
            commissioner on June 13, 1991.  The record was considered 
 
            fully submitted at the time of the hearing.  The record 
 
            consists of joint exhibits 1 through 11; claimant's 
 
            testimony and testimony from J. Michael Smith, M.D., Martin 
 
            Walker and Ronald Bingaman.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order submitted 
 
            and approved on June 13, 1991, the following issues are 
 
            presented for resolution:
 
            
 
                 1.  Whether claimant sustained an injury to his right 
 
            shoulder on October 25, 1989 which arose out of and in the 
 
            course of his employment with employer;
 
            
 
                 2.  Whether the alleged injury is a cause of temporary 
 
            disability during a period of recovery;
 
            
 
                 3.  The extent of entitlement to weekly compensation 
 
            for temporary total disability or healing period, if 
 
            defendants are liable for the injury; and,
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 
                 Defendants identified lack of notice under Iowa Code 
 
            section 85.23 as a defense to this action.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, the arguments made, the 
 
            evidence identified in the exhibits herein, and makes the 
 
            following findings:
 
            
 
                 On October 25, 1989, while in the employ of Signal 
 
            Delivery Service, claimant, a line haul driver, was 
 
            unloading a boxed refrigerator when he lost his grip on the 
 
            load, smashed his left hand on the side of the trailer and 
 
            pulled his right shoulder muscle.  He was treated by the 
 
            company doctor, Lanny Harris, M.D.  After failure of 
 
            conservative therapy, Dr. Harris performed an excision of 
 
            the dorsal exostosis and release of A-1 pulley of the left 
 
            long finger (exhibit 1, page 60).
 
            
 
                 Defendants stipulate that claimant sustained an injury 
 
            to his left hand on October 25, 1989 and have paid for all 
 
            medical treatment relative to that injury.  Claimant alleges 
 
            that he also sustained an injury to his right shoulder on 
 
            October 25, 1989 which subsequently required treatment, 
 
            including surgery.  Defendants argue that claimant gave no 
 
            notice at any time to the employer regarding a right 
 
            shoulder injury and, if he sustained one, it was the result 
 
            of some cause other than the specific incident on October 
 
            25, 1989.
 
            
 
                 Claimant testified that, on October 25, 1989, after 
 
            crushing his hand and pulling his right shoulder, he called 
 
            his supervisor, Ron Bingaman, and told him to prepare an 
 
            injury report.  The next day, upon his return to Kansas 
 
            City, he signed the report found at page 12 of exhibit 2.  
 
            He testified that he read the report and signed it.  He 
 
            admitted that his right shoulder was of minimal concern to 
 
            him at the time because he was more concerned with the 
 
            severe pain and swelling in his left hand.  Nevertheless, he 
 
            returned to his usual duties until the pain became so severe 
 
            that he went to see the company physician, G. Keith Kennard, 
 
            M.D., who took him off work on November 20, 1989 (exhibit 1, 
 
            pages 77-88).
 
            
 
                 Dr. Kennard referred him to Dr. Harris who saw claimant 
 
            on December 18, 1989.  Claimant testified that he informed 
 
            Dr. Harris that he had right shoulder pain as a result of 
 
            his work injury, but Dr. Harris, being a hand surgeon, 
 
            treated only his left hand and told him that his right 
 
            shoulder pain would eventually subside.  Dr. Harris released 
 
            claimant to return to work on April 28, 1990.
 
            
 
                 Claimant testified that, during the course of his 
 
            treatment with Dr. Harris, he had continuing popping noise 
 
            in his right shoulder and extreme discomfort.  He informed 
 
            Dr. Harris that he was not ready to return to work so soon 
 
            after surgery.  Claimant reported for work on May 1, 1990 
 
            despite stiffness in his left hand and right shoulder.  On 
 
            May 27, 1990, claimant visited with Dr. Harris with these 
 
            complaints and was referred for a CT scan and arthrogram of 
 
            the right shoulder.  However, the tests were not approved by 
 
            the insurance company.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Progress notes from Dr. Harris dated April 13, 1990 
 
            indicate that claimant presented with complaints of pain and 
 
            catching in the right shoulder.  A physical examination 
 
            revealed a marked degree of subacromial crepitus and mild 
 
            tenderness.  X-rays were taken of the right shoulder and 
 
            showed some mild degenerative changes at the AC joint.  He 
 
            was given a prescription for Butazolidin to alleviate his 
 
            shoulder symptoms (exhibit 1, page 26).  A return visit to 
 
            Dr. Harris on May 25, 1990 revealed crepitus in the 
 
            subacromial and pain on motion of the right shoulder.  Dr. 
 
            Harris stated in his notes:
 
            
 
                 In regard to the right shoulder, I don't think 
 
                 this is a work-related phenomenon but represents a 
 
                 subacromial bursitis or tendonitis.  There may be 
 
                 a rotator cuff lesion of a degenerative nature.  
 
                 He will need an arthro/CT scan but I have informed 
 
                 the patient that this will probably not be covered 
 
                 under his industrial claim and he is aware of 
 
                 this.
 
            
 
            (Exhibit 1, page 25)
 
            
 
                 The insurance company did not approve further testing 
 
            and claimant conferred with an attorney who referred him to 
 
            J. Michael Smith, M.D., a specialist in occupational 
 
            medicine.  Dr. Smith testified at the hearing in this 
 
            matter.  He evaluated claimant on June 7, 1990 and May 24, 
 
            1991.  It was Dr. Smith's medical opinion that claimant's 
 
            right shoulder problems are related to his injury of October 
 
            25, 1989 and are a result of an overuse syndrome in 
 
            compensating for his left hand limitations.
 
            
 
                 Claimant saw Dale E. Darnell, M.D., on September 20, 
 
            1990 for complaints referable to right shoulder pain.  He 
 
            recommended a CAT scan and arthrogram.  These tests were 
 
            within normal limits and physical therapy was continued.  
 
            His shoulder pain persisted and a right shoulder arthroscopy 
 
            was performed on February 11, 1991.  It showed a partial 
 
            rotator cuff tear with significant synovitis and 
 
            degenerative anterior superior labral defect.  Arthroscopic 
 
            surgery was then performed.  He was started on a rehab 
 
            program afterwards.  On May 7, 1991, Dr. Darnell reported 
 
            that an x-ray showed what appears to be a spike of bone 
 
            either on the under surface of the acromion or the clavicle 
 
            which may or may not be the source of his difficulty 
 
            (exhibit 1, page 3).
 
            
 
                 Dr. Harris testified in a deposition dated June 3, 
 
            1991.  Dr. Harris testified in pertinent part as follows:
 
            
 
                 Q.  (By Mr. McKay)  In your experience as an 
 
                 orthopedic surgeon, I imagine you believe that 
 
                 certain activities promote traumatic degeneration 
 
                 of joints such as possibly running causing 
 
                 degeneration of the knees, and other activities, 
 
                 weight lifting, causing degeneration of the 
 
                 shoulders and possibly the low back.  Would you 
 
                 further be of the opinion that lifting objects 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 such as refrigerators and riding lawn mowers may 
 
                 also cause traumatic degeneration of shoulder 
 
                 joints?
 
            
 
                 A.  It may, yes.
 
            
 
                 Q.  In your practice have you had patients that 
 
                 have had surgery on one side and then through the 
 
                 recuperation and recovery process developed 
 
                 symptoms on the non-operated side because the 
 
                 non-operated side was doing extra work to 
 
                 compensate?
 
            
 
                 A.  Yes.
 
            
 
            (Dr. Harris deposition, page 58, lines 8 through 25)
 
            
 
                 Martin Walker, terminal supervisor with employer, also 
 
            testified at the hearing.  He testified that between October 
 
            25, 1989 and May 1990, he had no notice of claimant's right 
 
            shoulder injury.  It was not until June 1990 that the 
 
            company was aware that claimant was attributing his right 
 
            shoulder injury to the injury he sustained on October 25, 
 
            1989.
 
            
 
                 Ronald Bingaman, claimant's supervisor at the time of 
 
            the injury, also testified at the hearing.  He stated that 
 
            he completed the injury form on October 25, 1989 and that 
 
            Mr. Cason reviewed the form the next day and signed it.  He 
 
            testified that he had no notice in October or any other time 
 
            that claimant hurt his right shoulder.
 
            
 
                 Dr. Darnell testified in a deposition on June 12, 1991.  
 
            He stated in pertinent part as follows:
 
            Q.  Do you have an opinion based on reasonable medical 
 
            certainty as to the cause of the anterior impingement 
 
            syndrome and the partial rotator cuff tear of the right 
 
            shoulder?
 
            A.  Yes.
 
            Q.  What is that opinion?
 
            A.  I think that it's an overuse phenomenon as a result of 
 
            his original injury, whenever that was, back sometime in 
 
            1989, from having to use his shoulder in a different manner, 
 
            in a more stressful manner, if you will.  And that's a 
 
            well-recognized--well, I'm looking for the right word--a 
 
            well-recognized mechanism of injury, if you will, a 
 
            mechanism of cause of this kind of problem.
 
            
 
            (Dr. Darnell deposition, page 20, lines 8 through 21)
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury to his right 
 
            shoulder on October 25, 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. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 An employee is entitled to compensation for any and all 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. School Dist., 
 
            246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 
 
            405-406 of the Iowa Report.  See also Sister Mary Benedict 
 
            v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and 
 
            Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 
 
            (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe v. DeSoto Consol. School Dist., 246 Iowa 402, 
 
            68 N.W.2d 63 (1955). 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union, 
 
            et al., Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. 
 
            DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).
 
            The claimant has the burden of proving by a preponderance of 
 
            the evidence that the injury of October 25, 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 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 Hosp., 251 Iowa 375, 
 
            101 N.W.2d 167 (1960). 
 
            However, expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts 
 
            need not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  However, the expert opinion may be accepted or 
 
            rejected, in whole or in part, by the trier of fact.  Id. at 
 
            907.  Further, the weight to be given to such an opinion is 
 
            for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).
 
            
 
                 After carefully considering the total evidence in this 
 
            case, the undersigned is persuaded that the claimant injured 
 
            his right shoulder on October 25, 1989 while in the course 
 
            of his employment with employer.  At the time of his injury, 
 
            claimant was performing his duties as a line haul driver.  
 
            While fulfilling those duties, he crushed his left hand and 
 
            hurt his right shoulder.  Prior to this traumatic incident, 
 
            claimant was asymptomatic.  While, at the time of the 
 
            injury, his left hand symptomatology was more severe than 
 
            his right shoulder, this does not negate the reality of the 
 
            shoulder injury.
 
            
 
                 Although claimant was not initially treated for right 
 
            shoulder problems, he was subsequently diagnosed by Dr. 
 
            Darnell, a highly qualified orthopaedic surgeon, as having 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            anterior impingement syndrome and partial tear of the 
 
            rotator cuff.  On February 11, 1991, after failure of 
 
            conservative therapy, Dr. Darnell did an arthroscopy with 
 
            debridement of the rotator cuff and decompression of the 
 
            subacromial space (exhibit 1, pages 1-13).
 
            
 
                 Claimant's uncontroverted expert medical opinion 
 
            causally relates his right shoulder impairment to his 
 
            work-related injury on October 25, 1989.  Accordingly, 
 
            claimant has demonstrated by a preponderance of the evidence 
 
            that he received a right shoulder injury on October 25, 1989 
 
            which arose out of and in the course of his employment.
 
            
 
                 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 Comm'n, 229 Iowa 700, 295 N.W. 91 (1940).  In 
 
            Reddick v. Grand Union Tea Co., 230 Iowa 108, 296 N.W. 800 
 
            (1941), the Iowa Supreme Court ruled that once claimant 
 
            sustains the burden of showing that an injury arose out of 
 
            and in the course of employment, claimant prevails unless 
 
            defendants can prove by a preponderance of the evidence an 
 
            affirmative defense.  Although an employer may have actual 
 
            knowledge of an injury, the actual knowledge requirement 
 
            under section 85.23 is not satisfied unless the employer has 
 
            information putting him on notice that the injury may be 
 
            work related.  Robinson v. Dep't of Transp., 296 N.W.2d 809 
 
            (Iowa 1980).
 
            
 
                 Iowa Code section 85.23 provides as follows:
 
            
 
                 Unless the employer or the employer's 
 
                 representative shall have actual knowledge of the 
 
                 occurrence of an injury received within ninety 
 
                 days from the date of the occurrence of the 
 
                 injury, or unless the employee or someone on the 
 
                 employee's behalf or a dependent or someone on the 
 
                 dependent's behalf shall give notice thereof to 
 
                 the employer within ninety days from the date of 
 
                 the occurrence of the injury, no compensation 
 
                 shall be allowed.
 
            
 
                 Defendants have failed to prove, by a preponderance of 
 
            the evidence, that claimant failed to give notice "of the 
 
            occurrence of an injury" within 90 days of the October 25, 
 
            1989 incident.  Testimony received at the hearing clearly 
 
            reveals that the employer was aware of a work-related injury 
 
            on October 25, 1989.  Defendants contend that because 
 
            claimant did not specifically report a right shoulder 
 
            injury, he is precluded from asserting a compensable 
 
            workers' compensation claim for that injury.  However, 
 
            section 85.23 requires only that the employer have actual 
 
            knowledge of the occurrence of an injury which may be work 
 
            related.
 
            
 
                 Iowa Code section 85.24 sets out an example of proper 
 
            formal notice.  Claimant must notify employer only that a 
 
            "personal injury" was sustained which is work related.  
 
            Claimant complied with the notice requirement when he 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            reported the incident on October 25, 1989.  There is no 
 
            requirement that claimant cite with specificity the nature 
 
            and extent of his injury or what part of the body was 
 
            injured.  The purpose of such notice is to give the employer 
 
            an opportunity to investigate the injury.  An employer has 
 
            "actual knowledge of the occurrence of an injury when he or 
 
            his representative has information that the employee 
 
            suffered an injury and that the injury might be work 
 
            related.  Robinson v. Dep't of Transp., 296 N.W.2d 809, 811 
 
            (Iowa 1980).
 
            
 
                 In Jacques v. Farmer's Lumber & Supply Co., 242 Iowa 
 
            548, 47 N.W.2d 236 (1951), the supreme court held that the 
 
            ninety-day limit for notice does not commence running until 
 
            the employee, acting reasonably, should know his injury is 
 
            "both serious and work-connected."  When the worker finds 
 
            out many months later that the "minor" injury has become 
 
            disabling and is actually a torn rotator cuff or disc, the 
 
            notice provision should not, and does not, bar an otherwise 
 
            legitimate claim for benefits so long as the worker 
 
            reasonably failed to recognize the seriousness of the 
 
            injury.  Mefferd v. Ed Miller & Sons, Inc., Thirty-third 
 
            Biennial Report of the Industrial Commissioner 191 (App. 
 
            Decn. 1977).
 
            
 
                 Employer directed claimant's course of treatment and 
 
            focused such treatment on the more obvious left hand injury.  
 
            Claimant was referred to a hand specialist who, according to 
 
            claimant, was aware of his right shoulder problems, but was 
 
            not authorized to provide treatment.  Claimant also 
 
            testified that he notified his supervisor that he wrenched 
 
            his shoulder at the same time he hurt his left hand.  
 
            Claimant had no way of knowing at the time of the incident 
 
            that his right shoulder problems would evolve into a more 
 
            serious condition.  As it is, claimant worked with a useless 
 
            left hand until Dr. Kennard took him off work on November 
 
            20, 1989.  For at least one month between October 25, 1989 
 
            and November 20, 1989, claimant performed his usual heavy 
 
            duties and had to overcompensate for his left hand 
 
            deficiencies by overusing his right extremity.  After hand 
 
            surgery on February 13, 1990, claimant was released by Dr. 
 
            Harris to return to his prior work on May 1, 1990.  He 
 
            testified that his hand was completely stiff and again 
 
            overcompensated for its inefficiency by putting more stress 
 
            on his right extremity.  It was not until claimant obtained 
 
            legal counsel and a referral to an orthopaedic surgeon that 
 
            his right shoulder problems were investigated.  Claimant's 
 
            testimony regarding the circumstances and the reporting of 
 
            his injury are found credible and entitled to significant 
 
            weight and consideration.  Accordingly, the undersigned 
 
            concludes that defendants received proper notice of 
 
            claimant's work-related injury and their affirmative defense 
 
            fails.
 
            
 
                 Defendants dispute that claimant's right shoulder 
 
            injury is a cause of temporary disability.
 
            
 
                 Claimant testified that, despite his protestations, Dr. 
 
            Harris released him to return to work on May 5, 1990.  By 
 
            June 25, 1990, claimant was no longer able to continue 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            performing the heavy duties required in his job.  His 
 
            shoulder condition had become increasingly worse due to 
 
            excessive overuse.  He underwent surgery on February 11, 
 
            1991 and has not yet been released to return to work by Dr. 
 
            Darnell.  On May 20, 1991, Dr. Darnell reported that, "His 
 
            most recent office visit (May 7, 1991) showed no change in 
 
            his condition.  An outlet view of his shoulder showed what 
 
            appeared to be an osteophyte on the undersurface of his 
 
            clavicle that was not noted on his pre-operative films."  
 
            (Exhibit 1, page 7).  Claimant testified that he does not 
 
            have full use of his right upper extremity and demonstrated 
 
            a limited range of motion at the hearing.  It is evident 
 
            that, at the present time, claimant is temporarily disabled 
 
            due to his right shoulder impairment.  Therefore, he is 
 
            entitled to a running award of healing period benefits 
 
            commencing June 26, 1990.  Claimant is also entitled to 
 
            payment of all medical expenses incurred for treatment of 
 
            his shoulder injury, including a prescribed Airdyne cycle 
 
            purchased on March 26, 1991.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay claimant a running award of healing 
 
            period benefits commencing June 26, 1990 at the stipulated 
 
            rate of five hundred five and 28/100 dollars ($505.28) per 
 
            week.
 
            
 
                 That defendants pay claimant all medical bills incurred 
 
            for treatment of his right shoulder injury.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants pay all costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 That this matter is returned to docket for scheduling 
 
            for prehearing and hearing on the bifurcated issues of 
 
            permanency and causation to permanency.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jacob J. Peters
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            233 Pearl Street
 
            P.O. Box 1078
 
            Council Bluffs, Iowa  51502
 
            
 
            Mr. E. J. Kelly
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                          51401 51402.20 2207 2209 
 
                                          1803.10 1803 51402.60 52500 
 
                                          52700 4000.2
 
                                          Filed August 5, 1992
 
                                          Walter R. McManus, Jr.
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            CARL CASON,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 938202
 
            SIGNAL DELIVERY SERVICE,      :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLSTATE INSURANCE,           :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51401 51402.20 2207 2209
 
            It was determined that the injury was the cause of permanent 
 
            disability to both the left hand and the right shoulder.  
 
            The treating orthopedic surgeon and one evaluating 
 
            orthopedic surgeon stated that after the injury to the left 
 
            hand claimant shifted his work effort to the right upper 
 
            extremity and over time, he sustained a cumulative injury to 
 
            the right shoulder caused by the left hand injury.  These 
 
            two physicians were preferred over defendants' hand surgeon 
 
            for causal connection of the shoulder injury.  Causal 
 
            connection was based on (1) simply because the doctors said 
 
            so; (2) the sequalae theory; and (3) the cumulative injury 
 
            theory and application of the Shank Doctrine that deputies 
 
            determine all issues designated on the hearing assignment 
 
            order supported by the evidence introduced at hearing.  
 
            Cites.
 
            
 
            1803.1 1803
 
            The left hand injury was determined to be a scheduled member 
 
            injury but the shoulder injury was determined to be an 
 
            injury to the body as a whole and 45 percent industrial 
 
            disability was awarded for all combined disability.  
 
            Permanent disability factors are summarized.  Several cites 
 
            on whether scheduled member or body as a whole.
 
            The fact employer closed the business was not an economic 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            factor under Webb.  It did not affect the economy of the 
 
            entire area.  It was an industrial disability factor 
 
            pursuant to Mejorado and Tasler.
 
            
 
            51402.60 52500 52700
 
            Medical benefits awarded for both the left hand and the 
 
            right shoulder.
 
            
 
            4000.2
 
            No penalty benefits were awarded for the right shoulder 
 
            injury.  It was a legitimate dispute under the old penalty 
 
            cases and fairly debatable under the new penalty cases.  
 
            Cites.
 
            No penalty benefits were awarded because defendants refused 
 
            to pay a running award of temporary disability benefits 
 
            awarded in a bifurcated proceeding.  The running award was 
 
            appealed and held to be interlocutory because it did not 
 
            dispose of the entire case.  It was determined that 
 
            defendants are not obligated to pay until their liability is 
 
            finally adjudicated.
 
            Claimant applied for a judgment on the running award in 
 
            district court but it was dismissed because the running 
 
            award was not a final disposition of the case as required by 
 
            Iowa Code section 86.42.
 
            Claimant was awarded penalty benefits for the permanent 
 
            impairment to the left hand which was assessed by their own 
 
            choice of hand surgeon who said it was caused by this injury 
 
            and assessed a 5 percent permanent impairment.  Defendants 
 
            never paid claimant and offered no reason for not doing so.  
 
            A 50 percent penalty benefits was assessed.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1402.30; 5-1402.50;
 
                                                 5-1403.30; 5-1802
 
                                                 Filed June 20, 1991
 
                                                 JEAN M. INGRASSIA
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            CARL CASON,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 938202
 
            SIGNAL DELIVERY SERVICE, INC.,
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            ALLSTATE INSURANCE, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            5-1402.30; 5-1402.50; 5-1403.30; 5-1802
 
            The parties stipulate that claimant sustained an injury to 
 
            his left hand in the course of employment and defendants 
 
            have paid benefits and all medical for treatment.  Claimant 
 
            claims an injury to his right shoulder at the same time he 
 
            injured his left hand and requests running healing period 
 
            benefits and medical bills for treatment, including surgery.
 
            Medical evidence supports claimant's claim.  Uncontroverted 
 
            expert opinion causally connects right shoulder impairment 
 
            to work-related injury.
 
            Defendants raise 85.23 notice defense.  Defendants failed to 
 
            prove by a preponderance of the evidence that claimant 
 
            failed to give notice "of the occurrence of an injury" 
 
            within 90 days of the incident.  Employer was aware of a 
 
            work-related injury on the day of the incident, therefore 
 
            their defense fails.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WALTER BANKSTON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 938370
 
            UNITED TECHNOLOGIES CORP.     :
 
            (formerly known as            :
 
            SHELLER GLOBE)                :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on June 20, 1991, at 
 
            Burlington, 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 May 1, 1990.  The record in the proceeding 
 
            consists of the testimony of the claimant and joint exhibits 
 
            1 through 12.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged disability is causally 
 
            connected to a May 1, 1990 work injury; and,
 
            
 
                 2.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 50-year-old high school graduate who has 
 
            basically worked manual labor jobs his entire work life.  
 
            Claimant has worked for defendant employer or his 
 
            predecessor for seven years as of June 27, 1991.  Defendant 
 
            employer makes automotive parts.  Claimant began working for 
 
            defendant employer on June 27, 1984, in the rubber 
 
            department.  This department makes the rubber that goes 
 
            around windows of vehicles, weatherstripping, etc.
 
            
 
                 Claimant began noticing a rash on his arms and hands in 
 
            1987 and then again in 1990.  He described the rash on his 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            arms and hands as if his skin had been burned in an oven.  
 
            Claimant is a black man and these rash areas are darker than 
 
            his normal skin.  Claimant showed the undersigned the areas 
 
            of both arms where he contends the condition still exists.  
 
            Claimant contends the rash condition is caused by the rubber 
 
            or chemicals contained therein.  Claimant said defendant 
 
            employer pulled him away from the rubber department and it 
 
            cleared up a lot, especially his hands which he said were 
 
            swollen and his palms were a darker black color.  He said 
 
            the hand problem went away when he stopped working with 
 
            rubber, but some effects on his arms have never gone away.
 
            
 
                 Claimant now works in the padding area but does not 
 
            make as much money.  He indicated the hourly difference is 
 
            one to five hours.  He could not explain the wide hourly 
 
            difference but it appears the incentive program may have 
 
            made a difference.  Through further questioning by his 
 
            attorney, it appears generally he is making $1 per hour less 
 
            than when he was working in the rubber department.  Claimant 
 
            said he is fine now but still uses medication.
 
            
 
                 On cross-examination, claimant again went over his 
 
            prior work history, 15 years of which he worked for DeLuxe 
 
            Printing at $8 per hour.  He said with more training, he 
 
            probably could return to that type work.
 
            
 
                 Claimant has not looked for other work.  He said his 
 
            last visit to Robert R. Kemp, M.D., was in January 1990 but 
 
            joint exhibit 12 indicates it was April 17, 1990.
 
            
 
                 Claimant indicated he has missed work due to his 
 
            rashes.  His hands were stiff and cracked and he would then 
 
            leave work.  He did not say when he missed work but said the 
 
            last time he missed, he was in the rubber department.  There 
 
            is no evidence indicating any actual days lost at work 
 
            regarding an injury that is involved herein.
 
            
 
                 Dr. Kemp testified through his deposition on June 17, 
 
            1991, that he first saw claimant on April 4, 1987 because of 
 
            a rash on claimant's hands and arms up to his elbows.  He 
 
            described it as eczema, like a scaling and thickening of the 
 
            skin, irritation, probably some redness and some general 
 
            swelling of the arms.  He said he thought it was contact 
 
            dermatitis (Jt. Ex. 12, p. 4).  Dr. Kemp gave claimant 
 
            steroids or cortisone injections and lubricating ointments.  
 
            He indicated that around September 8, 1987, he referred 
 
            claimant to a dermatologist, Margaret Kopchick, M.D., who 
 
            said claimant's condition was contact dermatitis, probably 
 
            related to rubber products.  He said claimant improved and 
 
            he didn't see claimant from the end of October to February 
 
            13, 1990, when claimant returned with the same problem (Jt. 
 
            Ex. 12, p. 9).
 
            
 
                 He said the rash was active again on claimant's 
 
            forearms and he continued again with the ointments.  On 
 
            April 17, 1990, claimant returned again and his forearms 
 
            were worse and claimant related he had been working around 
 
            ovens.  The doctor told him he should not do this.  He has 
 
            not seen claimant since this April 17, 1990 appointment.  
 
            The doctor said there was no testing done and it did not 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            appear claimant was becoming more sensitive to other 
 
            materials beyond where he started out originally.  He 
 
            indicated Dr. Kopchick did not see need for further testing.  
 
            He did not know if claimant was taking medication.  Dr. Kemp 
 
            stated claimant's condition would most likely continue as 
 
            long as he was around the same type product.  The doctor did 
 
            not take claimant off work but on August 10, 1987, suggested 
 
            a transfer to a different job or another department.  He 
 
            understood that was a position change and claimant has less 
 
            of a problem (Jt. Ex. 12, p. 9).
 
            
 
                 Margaret A. Kopchick, M.D., wrote a letter on September 
 
            15, 1987 (Jt. Ex. 7), indicating at that time claimant's 
 
            contact dermatitis was resolving itself and prescribed 
 
            ointment.  She said it was not uncommon for the activators 
 
            in rubber products to still be existing on new rubber 
 
            products and to cause contact dermatitis.
 
            
 
                 Claimant's records show that it was suggested to 
 
            claimant to change departments and avoid rubber materials 
 
            (Jt. Ex. 10, pp. 11-12).  When claimant transferred to the 
 
            new department, which appears to have occurred in August 
 
            1987, he was told he could continue working at this new job 
 
            (Jt. Ex. 10, pp. 13-14; Jt. Ex. 11, p. 15).
 
            
 
                 Claimant contends he has a body as a whole disability.  
 
            The evidence is clear that claimant's contact with rubber or 
 
            the chemicals in the rubber causes a rash-allergen reaction 
 
            to claimant.  It is further obvious that claimant's removal 
 
            from this allergen seems to resolve the problem.  Claimant 
 
            showed the undersigned his current rash or skin problem.  
 
            Claimant has not seen a doctor since April 17, 1990.  There 
 
            is no further medical since that date.  The dermatologist 
 
            did not seem to think testing was necessary.
 
            
 
                 Defendant employer is not obligated to keep claimant in 
 
            a department if he has allergy reactions.  Claimant's 
 
            removal from the allergen appears to have solved the 
 
            problem.  There is no current medical indicating claimant's 
 
            current complaint is connected to his work.  Claimant 
 
            desires to continue working for defendant employer.  If 
 
            claimant feels his allergy is the result of an allergen at 
 
            work, he could seek other employment or possibly another 
 
            department within his current employer's place of business.  
 
            Claimant's condition is not a permanent condition but only 
 
            an allergic reaction and his removal from the allergen 
 
            solves his problem.
 
            
 
                 There is no evidence that claimant missed any work nor 
 
            was he temporary totally disabled.  His condition appears 
 
            transitory depending on his contact with an allergen, in 
 
            this case, rubber materials or chemicals therein.  The 
 
            undersigned did not see claimant's condition in 1987 up to 
 
            the stipulated date of injury of May 1, 1990.  The 
 
            claimant's skin looks more like a blotch than a rash.
 
            
 
                 There is no evidence of a permanent impairment.  There 
 
            are no restrictions.  Claimant is making $1 per hour less in 
 
            his current job.  If claimant goes back to his former job in 
 
            the rubber department, he obviously will have worse problems 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            including swollen hands, which condition he currently does 
 
            not have.  Claimant's loss of income is due to his body 
 
            makeup and disposition to reaction to certain allergens that 
 
            others don't necessarily react to.  By removing himself from 
 
            these allergens, he is okay.
 
            
 
                 The undersigned finds claimant had a temporary allergic 
 
            reaction to rubber while working at defendant employer, but 
 
            this injury to which the parties stipulated arose out of and 
 
            in the course of claimant's employment on May 1, 1990, did 
 
            not result in claimant incurring any healing period, 
 
            temporary total disability or permanent partial disability.  
 
            Claimant has failed in carrying his burden of proof to show 
 
            any causal connection of his May 1, 1990 exposure injury to 
 
            any temporary total disability or permanent disability or 
 
            healing period.  It is therefore found that claimant takes 
 
            nothing further from these proceedings.
 
            
 
                                conclusions of law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of May 1, 
 
            1990, 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 
 
            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). 
 
            
 
                 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).
 
            
 
     
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            It is further concluded:
 
            
 
                 Claimant failed to carry his burden of proof to show 
 
            claimant's current alleged condition is causally connected 
 
            to his May 1, 1990 work injury, the exposure to rubber or 
 
            chemical makeup.
 
            
 
                 Claimant is entitled to no healing period, temporary 
 
            total disability or permanent partial disability benefits.
 
            
 
                 Claimant has no permanent impairment or compensable 
 
            permanent injury, industrial disability, or any scheduled 
 
            injury to which he is entitled to disability benefits.
 
            
 
                 Claimant has been paid all his medical benefits as 
 
            stipulated by the parties.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing further from these 
 
            proceedings.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr James P Hoffman
 
            Attorney at Law
 
            Middle Road
 
            Keokuk IA 52632
 
            
 
            Mr Harry W Dahl Sr
 
            Attorney at Law
 
            974 73rd St  Ste 16
 
            Des Moines IA 50312
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1108; 5-1803
 
                      Filed July 3, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WALTER BANKSTON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 938370
 
            UNITED TECHNOLOGIES CORP.     :
 
            (formerly known as            :
 
            SHELLER GLOBE)                :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1108
 
             Found no causal connection to claimant's alleged disability 
 
            and his work injury.
 
            
 
            5-1803
 
            Found claimant did not have any permanent disability.