Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            MARIA PESINA,    :
 
                        :
 
                 Claimant,   :       File No. 940383
 
                        :
 
            vs.         :          A P P E A L
 
                        :
 
            IBP, INC.,       :        D E C I S I O N
 
                        :
 
                 Employer,   :
 
                 Self-Insured,    :
 
                 Defendant.       :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            issue
 
            Claimant states the following issue on appeal:  "Whether the 
 
            deputy commissioner improperly considered evidence outside 
 
            of the record including but not limited to an unfounded 
 
            off-the-cuff remark by the employer's attorney in reaching 
 
            his decision."
 
            findings of fact
 
            The findings of fact contained in the proposed agency 
 
            decision filed June 15, 1992 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.
 
            
 
                 Claimant is a 42-year-old Mexican-American who 
 
            testified in Spanish and her testimony was translated by the 
 
            interpreter.  Claimant began working for defendant employer 
 
            on or around June 14, 1988, and worked until April 24, 1990.  
 
            Claimant has worked no other jobs since working at IBP.  
 
            Claimant testified that she still is experiencing pain in 
 
            her left and right hand.  She indicated the pain extends 
 
            into the arms and shoulders.
 
            
 
                 At defendant employer, claimant used an electric knife 
 
            to take the skin off pieces of meat that she was cleaning.  
 
            She did this eight hours per day, six days per week, Monday 
 
            through Saturday.  She described the nature of the knife she 
 
            used.  
 
            
 
                 Claimant related that she told her supervisor at IBP 
 
            that her hands and arms hurt.  She indicated that her 
 
            supervisor told her that her hands were going to hurt but 
 
            she could go to the infirmary and take a pill and the pain 
 
            would go away.  She indicated that defendant employer paid 
 
            no attention to her complaints so she went to her own doctor 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            since the company would not send her to a doctor.  
 
            
 
                 Claimant said she then told the company she had gone to 
 
            a doctor and claimant indicated that defendant employer 
 
            became very upset as they indicated they should have sent 
 
            her to a doctor rather then her going to one on her own.  
 
            The defendant employer then sent her to their own doctor, 
 
            Dr. Dean.  The claimant indicated that she was reluctant to 
 
            originally have surgery on her right hand.  She said that 
 
            before she had surgery, conservative medical treatment was 
 
            carried through and she wore a splint on her right hand 
 
            only.  
 
            
 
                 Claimant indicated that she was eventually talked into 
 
            having surgery on her right hand as she was told it could be 
 
            fixed.  She indicated Sherry Wilson from defendant employer 
 
            told her that she should also have an operation on her left 
 
            hand.  Claimant indicated she decided to wait and see the 
 
            results of the operation on her right hand before having any 
 
            surgery on her left hand.  
 
            
 
                 Claimant described the various work she did prior to 
 
            her surgery and the work she was doing when she had the 
 
            splint on her right hand.  Claimant indicated she continued 
 
            to do similar work even with the splint on her right hand 
 
            but that she would not use her right hand but only use her 
 
            left hand.  Claimant had a right carpal tunnel release on 
 
            November 3, 1989.  Said surgery was performed by Calvin 
 
            Atwell, M.D.  Claimant described the type of work she was 
 
            doing after her surgery and the lighter duty jobs that she 
 
            was to do.  Claimant indicated that she used her left hand.
 
            
 
                 Claimant's testimony was confusing in that at times 
 
            there didn't appear to be a differentiation as to the type 
 
            of jobs and the nature of the jobs and how she performed her 
 
            jobs as between before her first surgery and after any of 
 
            her surgeries.  Claimant indicated she was requested to do 
 
            the various jobs requiring use of both hands after the 
 
            injury that she did prior to her injury.
 
            
 
                 Claimant testified that she had her second right hand 
 
            surgery January 18, 1990, which was another follow-up carpal 
 
            tunnel decompression surgery.  She described the type of 
 
            jobs IBP gave her after her second surgery.  Claimant 
 
            emphasized that at
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            no time did she refuse to accept work or actually refuse to 
 
            work for defendant employer.  She did indicate that there 
 
            were some incidences in which the particular job that she 
 
            was asked to do made her sick.  One of these jobs was 
 
            involving a situation which she would watch the waste of the 
 
            pigs in the rendering area which did not require the use of 
 
            her hands.  
 
            
 
                 Claimant indicated her last date at work at IBP was 
 
            April 24, 1990.  She recalled that on that day a company 
 
            official told her she was to go to the infirmary and was 
 
            eventually told she would have to go home.  She indicated 
 
            that she received no explanation why but the company 
 
            emphasized she must leave.  
 
            
 
                 Claimant said she still has pain in her left and right 
 
            hands.  She indicated that she doesn't have pain if she is 
 
            doing nothing, but if she starts doing something, the pain 
 
            occurs.  She indicated the left and right hands are weaker 
 
            since her employment with defendant employer.  She indicates 
 
            there is numbness in her left hand that feels like a 
 
            pulsating feeling all of the time.  She indicates her right 
 
            hand tingles also.  She also indicated that since the 
 
            surgery to her right hand the knuckles feel tight and that 
 
            before the surgery she was able to move her fingers and 
 
            knuckles more freely.  
 
            
 
                 Fancisco Pesina, claimant's husband, testified that his 
 
            wife had complaints about her right and left hands prior to 
 
            her surgery.  He indicated she complained that her right 
 
            hand hurt most. 
 
            
 
                 Mr. Pesina indicated that the surgery helped his wife 
 
            some but not a lot.  When she does any housework she has 
 
            pains from her hands all the way to her shoulder.  He 
 
            indicated that he can put more pressure using his two 
 
            fingers than his wife can with her entire hand.  
 
            
 
                 A report of June 21, 1990, by Dr. Atwell reflects that 
 
            claimant had an EMG performed on May 1, 1989, by Dr. Neiman 
 
            that was compatible with a severe right carpal tunnel 
 
            syndrome.  Surgery apparently had been suggested at that 
 
            time, but claimant feared the operation and elected not to 
 
            proceed at that time.  After continued conservative medical 
 
            treatment, claimant was again examined and had an EMG on 
 
            August 10, 1989, which confirmed a significant carpal tunnel 
 
            syndrome.  The patient also had symptoms suggestive of left 
 
            carpal tunnel syndrome, but the EMG's were negative.  Repeat 
 
            EMG's were performed on September 25, 1989, that again 
 
            confirmed the right carpal tunnel syndrome with a borderline 
 
            carpal tunnel syndrome on the left.  The doctor indicated 
 
            that on November 3, 1989, claimant underwent a release of 
 
            her right carpal tunnel ligament but that apparently 
 
            pursuant
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            to another EMG study on January 9, 1990, claimant had scar 
 
            tissue on the median nerve at the operative site.  She then 
 
            underwent a recurrent right carpal decompression with a 
 
            right median neurolosis and freeing up of dense scar tissue 
 
            around the median nerve on January 18, 1990.
 
            
 
                 The doctor also indicated that on claimant's last 
 
            examination, she had some subjective complaints of the left 
 
            hand in regards to weakness, tingling and numbness but 
 
            indicated that she had a normal examination to two point 
 
            discrimination as well as normal exam to flexion and 
 
            extension.  The doctor gave a rating of 24 percent permanent 
 
            impairment to claimant's right hand using the AMA Guides.  
 
            He made no reference as to any rating or permanent 
 
            impairment to the left hand.
 
            
 
                 On May 22, 1991, Dr. Atwell wrote another letter in 
 
            which he mentions that post-operatively claimant did not do 
 
            well and had multiple complaints in both hands, both arms 
 
            and both shoulders and was unable to return to any type of 
 
            functional job at IBP.  He mentions that claimant still has 
 
            complained of severe discomfort of her hands, arms and 
 
            shoulders and he did not recommend that she be placed in any 
 
            job of which there is use of the hands or upper extremities 
 
            (joint exhibit B).
 
            
 
                 Joint exhibit C are April 30 and July 11, 1990, letters 
 
            of Dr. Richard F. Neiman, M.D.  These letters do not reflect 
 
            anything as to claimant's left hand and for the most part, 
 
            other than referring to her surgeries on her right hand, 
 
            refers more to claimant's pain in other parts of her body.
 
            
 
                 Joint exhibit D is the medical file cards of defendant 
 
            employer concerning the medical information received by 
 
            defendant employer from the defendant's authorized doctor 
 
            and covers a period of February 17, 1989 to May 23, 1990.  
 
            February 22, 1989, note indicated that claimant was seen by 
 
            Dr. Dean on February 21, 1989, with a diagnosis of overuse, 
 
            both hands and claimant was to do no repetitive grasping or 
 
            gripping with both hands.  On March 2, 1989, there was the 
 
            same diagnosis.  On April 6 there is reference only to the 
 
            right hand and indicated no limitation to the left hand but 
 
            then on April 20, 1989, the note indicates overuse, both 
 
            arms, no repetitive grasping or gripping and no lifting over 
 
            ten pounds both hands.  On May 9, 1989, the notes indicate 
 
            that Dr. Dean indicated that claimant has now progressed to 
 
            bilateral carpal tunnel and is to wear a splint and that 
 
            there was to be no repetitive gripping or grasping of the 
 
            right or left hand.  On May 24, 1989, there is another 
 
            reference that claimant was not to repetitively grip or 
 
            grasp with either hand.  On July 13, 1989, there is 
 
            reference that surgery was recommended for the right hand 
 
            and that there was to be no repetitive gripping or
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            grasping of the right hand.  Nothing at this time was 
 
            mentioned as to the left hand.  On August 15, 1989, there is 
 
            a notation that claimant had sore hands and around the same 
 
            time, a notation that surgery was canceled because 
 
            claimant's hands hurt too much.  On August 29, 1989, 
 
            notation indicates that the diagnosis was carpal tunnel 
 
            syndrome and tendonism of the flexor tendons bilaterally in 
 
            the wrist and forearms.  It indicated no lifting of over ten 
 
            pounds and that her arms are not to be elevated above the 
 
            shoulder height such as being currently performed.  There is 
 
            a similar notation on August 31.  It seems they are 
 
            referring to the plural, therefore, involving both the left 
 
            and the right.  On September 7, 1989, there is a reference 
 
            that there was to be no lifting over ten pounds, either 
 
            hand, and no grasping, pushing, pulling, fine manipulation, 
 
            bending, stooping, or reaching above shoulder level.  There 
 
            is a similar notation on September 9, 1989, in which an over 
 
            ten-pound lifting restriction as to both hands is restated.  
 
            On October 13, 1989, there is a note referring to no 
 
            repetitive gripping or grasping of either hand.  On November 
 
            7, 1989, notation indicates that claimant may return to work 
 
            on November 6, 1989, if she can use her left hand only as 
 
            she is not allowed to use her right hand.  It would appear 
 
            from around that date and after what reflects the period 
 
            after her first surgery to her right hand, that there is 
 
            basically reference only to claimant's right hand except on 
 
            April 17, 1990, there is reference to an appointment made 
 
            with Dr. Atwell.  Bilateral carpal tunnel no use either 
 
            hand.  
 
            
 
                 On May 11, 1990, Rouben Mirbegin, M.D., an orthopedic 
 
            surgeon, could not find the slightest indication that 
 
            claimant has reason to continue to complain as much as she 
 
            is doing.  He didn't believe that she has to have any 
 
            restrictions and could return to regular work any time (jt. 
 
            ex. F).  
 
            
 
                 Joint exhibit G is the Muscatine Health Center progress 
 
            notes.  The notations of Dr. Forrest Dean pretty much bear 
 
            out the notations previously referred to in the IBP notes in 
 
            which the medical notes of the defendant employer reflects 
 
            the conversations or understanding of the diagnosis that was 
 
            being made by Dr. Dean regarding this claimant.  It is 
 
            unnecessary to restate similar information.  It also 
 
            contains notations of Dr. Atwell.  His last note of June 21, 
 
            1990, refers to a revised letter of June 11, 1990.  This 
 
            June 21, 1990, letter is reflected by joint exhibit B.  Also 
 
            on May 3, 1990, his notes reflect that claimant was back in 
 
            the office for further evaluation of her bilateral carpal 
 
            tunnel syndrome.  The June 11, 1990, letter to Sherry Wilson 
 
            as referred to in joint exhibit G which was revised by the 
 
            June 21, 1990, letter is not in the record.  So what was 
 
            being revised is not known.
 
            
 
     
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Joint exhibit H reflects a letter from a J. Worrell, M.D., 
 
            dated September 25, 1989, in which he had the impression 
 
            that the tests he conducted were compatible with a right 
 
            carpal tunnel syndrome and that the left side is borderline.
 
            
 
                 Joint exhibit J is a letter from Robert W. Milas, M.D., 
 
            dated August 21, 1991, in which he examined the claimant.  
 
            It appears in his history that he is not only taking the 
 
            information from the claimant as to the history and what she 
 
            has gone through but also seemed to indicate that she told 
 
            him that the electro diagnostic studies have documented a 
 
            left carpal tunnel syndrome and that the patient was advised 
 
            to have a procedure on the left.  This is the first 
 
            indication in the record that there was such a study that so 
 
            specifically stated that conclusion.  The only item in the 
 
            record as to any suggestion of a left carpal tunnel surgery 
 
            was apparently Sherry Wilson's comment that claimant should 
 
            also have a left when she was going to have her right carpal 
 
            tunnel release.  Sherry Wilson is an employee at defendant 
 
            employer.  The doctor then jumps immediately into a rating 
 
            without really setting out any specific tests that he put 
 
            claimant through to reach his impairment conclusions.  Using 
 
            the AMA Guides he concluded that claimant had a 40 percent 
 
            impairment of both upper extremities secondary to bilateral 
 
            median nerve dysfunction.  He then opined that this would 
 
            calculate to a 48 percent permanent partial impairment of 
 
            the whole person.
 
            
 
                 It is this letter that the claimant's are emphasizing 
 
            to conclude that there is an impairment to the left and 
 
            right extremities and that claimant has a simultaneous 
 
            bilateral carpal tunnel syndrome condition and that 
 
            claimant's impairment is to an upper extremity and not 
 
            limited to left and right hands.
 
            
 
                 This examination and report was over two and one-half 
 
            years after the claimant's alleged injury and may be suspect 
 
            in several respects.  One might question the need to send 
 
            claimant across the river into Illinois with the medical 
 
            personnel in the Quad City areas on the Iowa side.  One also 
 
            questions the doctor's identical impairment of both the left 
 
            and right extremities when the evidence is undisputed that 
 
            claimant had two surgeries on her right hand, one of which 
 
            was to remove scar tissues, and obviously claimant has an 
 
            impairment and problem on her right.  Claimant had no 
 
            surgery as to her left and it's obvious from the record, 
 
            even taking evidence most favorable to the claimant, that 
 
            the left and right hand are not identical assuming there is 
 
            impairment to both extremities.  This doctor also, unlike 
 
            any other doctor who has written a report, refers strictly 
 
            to claimant's upper extremities.  Even though it is not 
 
            uncommon for doctors to refer anything on a particular 
 
            schedule member on a left or right side as being a part of 
 
            the upper extremities, it is obvious in this record that 
 
            claimant's injuries, whatever they might be, are to her 
 
            hand(s) and not beyond her hand(s).  She showed the area of 
 
            her surgery on her right hand and that did not even go into 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            her wrist.  A wrist is also under the current agency law 
 
            considered the hand anyway.  It is obvious in looking at the 
 
            doctor's impairment ratings and his conversion to a 48 
 
            percent permanent impairment to claimant's body as a whole 
 
            that he is not considering the hands as being the area of 
 
            impairment and therefore, is using upper extremities in an 
 
            area beyond the hands.  Otherwise, if the doctors meant the 
 
            hands and not the upper extremities then the conversion to 
 
            the body as a whole would have been a lessor figure.
 
            
 
                 This is a difficult case as to determining the issue as 
 
            to whether claimant had only a right hand schedule member 
 
            injury and therefore, an impairment only to the right hand, 
 
            or whether she actually has a bilateral carpal tunnel 
 
            simultaneous injury.  The difficulty in coming to a 
 
            conclusion is the reference in the defendant employer's 
 
            medical records in which Dr. Dean has apparently related 
 
            information back to defendant employer and is also reflected 
 
            in Dr. Dean's records that there were problems with both 
 
            hands.  The substantial weight of evidence shows the real 
 
            problems were to the right hand and that no surgery was ever 
 
            done on the left.  ***** There is actually no permanent 
 
            impairment given by any doctor other than Dr. Milas as 
 
            referred to above, referring to the left hand.
 
            
 
                 [It is found] ***** the report of Dr. Milas ***** 
 
            [deserves little evidentiary weight].  It would appear that 
 
            he has an incomplete history or incomplete understanding of 
 
            claimant's medical or prior medical tests.  There is no 
 
            evidence that he had any other medical information from any 
 
            other doctor.  He did a one-time apparently brief 
 
            examination two and one-half years after the alleged injury.  
 
            ***** The doctor's conclusion as to a 40 percent impairment 
 
            to both upper extremities appears unbelievable based on the 
 
            record herein.  ***** Additionally, to increase his 
 
            impairment conclusion, he refers to upper extremity.  There 
 
            is nothing in this record that ***** [could cause] the 
 
            doctor to make a judgment that claimant's injury is not to 
 
            her hands but is to her upper extremities, and in this case, 
 
            obviously he's referring to the arms.  *****
 
            
 
                 Going to the remaining medical evidence, it would 
 
            appear that there is no impairment rating of claimant's left 
 
            hand assuming she does have a work injury.  If we assumed 
 
            there was a bilateral simultaneous carpal tunnel injury, and 
 
            taking a 24 percent permanent impairment to claimant's right 
 
            hand and a zero rating as to claimant's left hand, that 
 
            would result in a 13 percent of 500 weeks or 65 weeks.  The 
 
            undersigned does not believe that the claimant has carried 
 
            her burden of proof to show that claimant does in fact have 
 
            a bilateral simultaneous carpal tunnel injury which would be 
 
            rated under 85.34(2)(s).
 
            
 
                 ***** Dr. Atwell's opinions in the report of June 21, 
 
            1990, which was also followed up by a May 21, 1991, report 
 
            that did not change any prior conclusion is more persuasive.  
 
            ***** The claimant has a total hand impairment of 24 percent 
 
            and that taking 24 percent times 190 weeks entitles the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            claimant to 45.6 weeks of benefits at the rate of $183.20.  
 
            Claimant has already been paid this amount as stipulated by 
 
            the parties. 
 
            
 
                 Defendant raised the 85.33(3) issue claiming that 
 
            claimant did not accept work.  The only evidence of this is 
 
            reflected in claimant's exhibit D which is the medical card 
 
            file that the defendant employer carries on the claimant.  
 
            ***** The defendant did not carry its burden as to that 
 
            defense.
 
            conclusions of law
 
            The conclusions of law contained in the proposed agency 
 
            decision filed June 15, 1992 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 
 
            17, 1989, is causally related to the disability on which she 
 
            now bases her 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). 
 
            
 
                 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. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The burden of proof is on the party asserting the 
 
            affirmative of an issue in an administrative proceeding; "on 
 
            the party who would suffer loss if the issue were not 
 
            established."  Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 
 
            1973); Norland v. Ides, 412 N.W.2d 904 (Iowa 1987)
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 

 
            
 
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            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 A wrist injury is an injury to the hand, not the upper 
 
            extremity.  The hand extends to the distal end of the radius 
 
            and ulna, including the carpus or wrist.  Elam v. Midland 
 
            Mfg., II Iowa Industrial Commissioner Report 141 (App. 
 
            1981).
 
            
 
                 It is further concluded that claimant did not incur a 
 
            simultaneous bilateral carpal tunnel injury or any injury to 
 
            her right and left hand simultaneously on February 17, 1989.
 
            
 
                 That claimant incurred a work-related 24 percent 
 
            permanent impairment to her right hand on February 17, 1989, 
 
            resulting in claimant being entitled to 45.6 weeks of 
 
            permanent partial disability benefits.
 
            
 
                 Claimant did not incur any permanent impairment to her 
 
            left hand as a result of any work injury of February 17, 
 
            1989.
 
            
 
                 Claimant did not refuse to accept suitable work, and 
 
            therefore, should not be penalized under the provisions of 
 
            Iowa Code section 85.33(3) *****.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            order
 
            THEREFORE, it is ordered:
 
            
 
                 Claimant takes nothing further from these proceedings.  
 
            The parties have agreed that claimant has already been 
 
            compensated on the basis of a 24 percent permanent 
 
            impairment of her right hand and therefore, has received 
 
            forty-five point six (45.6) weeks of benefits at the rate of 
 
            one hundred eighty-three and 20/100 dollars ($183.20).
 
            That claimant shall pay the costs of the appeal including 
 
            the transcription of the hearing.  Defendant shall pay all 
 
            other costs.
 
            Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. William J. Bribriesco
 
            Attorney at Law
 
            2407 18th St, STE 202
 
            Bettendorf, Iowa  52722
 
            
 
            Mr. John M. Comer
 
            Attorney at Law
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            PO Box 515, Department 41
 
            Dakota City, NE  68731
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1402.40; 1403.30 
 
            Filed February 22, 1993
 
            Byron K. Orton
 
            BJO
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            MARIA PESINA,    :
 
                        :
 
                 Claimant,   :       File No. 940383
 
                        :
 
            vs.         :          A P P E A L
 
                        :
 
            IBP, INC.,       :        D E C I S I O N
 
                        :
 
                 Employer,   :
 
                 Self-Insured,    :
 
                 Defendant.       :
 
            ____________________________________________________________
 
            _____
 
            
 
            1402.40
 
            Found claimant did not have a simultaneous bilateral carpal 
 
            tunnel injury, but only an injury to her right hand (not 
 
            upper extremity).  
 
            
 
            1403.30
 
            Found defendant did not prove claimant refused to accept 
 
            work under section 85.33(3).
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARIA PESINA,                 :
 
                                          :
 
                 Claimant,                :      File No. 940383
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            IBP, INC.,                    :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on May 29, 1992, at 
 
            Davenport, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged February 17, 
 
            1989, injury.  The record in the proceeding consists of the 
 
            testimony of the claimant, claimant's husband and joint 
 
            exhibits A through J.  
 
            
 
                 There was an interpreter appointed for these 
 
            proceedings.  As provided by statute, these proceedings are 
 
            also supposed to be tape recorded in addition to a court 
 
            reporter.  The equipment brought for tape recording did not 
 
            work and after considerable attempts the court reporter was 
 
            unable to get the equipment to record.  The parties 
 
            thereafter agreed that they would waive any statuary 
 
            requirements that this proceeding be tape recorded.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  The extent of claimant's permanent disability.  
 
            Within this issue is whether claimant has a bilateral carpal 
 
            tunnel syndrome, and if so, the parties would consider it 
 
            simultaneous and rate it under 85.34(2)(s) or another issue 
 
            within this, whether claimant's injury is only to her right 
 
            scheduled member and whether the right schedule member 
 
            injury is to the hand or upper extremity.
 
            
 
                 2.  Whether claimant refused to accept suitable work as 
 
            provided in 85.33(3).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all of the evidence finds that:
 
            
 
                 Claimant is a 42-year-old Mexican-American who 
 
            testified in Spanish and her testimony was translated by the 
 
            interpreter.  Claimant began working for defendant employer 
 
            on or around June 14, 1988, and worked until April 24, 1990.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Claimant has worked no other jobs since working at IBP.  
 
            Claimant testified that she still is experiencing pain in 
 
            her left and right hand.  She indicated the pain extends up 
 
            into the arm and shoulders.
 
            
 
                 At defendant employer, claimant used an electric knife 
 
            to take the skin off of pieces of meat that she was 
 
            cleaning.  She did this eight hours a day, six days a week, 
 
            Monday through Saturday.  She described the nature of the 
 
            knife she used.  
 
            
 
                 Claimant related that she told her supervisor at IBP 
 
            that her hands and arms hurt.  She indicated that her 
 
            supervisor told her her hands were going to hurt but she 
 
            could go to the infirmary and take a pill and the pain would 
 
            go away.  She indicated that defendant employer paid no 
 
            attention to her complaints so she went to her own doctor 
 
            since the company would not send her to a doctor.  
 
            
 
                 Claimant said she then told the company she had gone to 
 
            a doctor and claimant indicated that defendant employer 
 
            became very upset as they indicated they should have sent 
 
            her to a doctor rather then her going to one on her own.  
 
            The defendant employer then sent her to their own doctor, 
 
            Dr. Dean.  The claimant indicated that she was reluctant to 
 
            originally have surgery on her right hand.  She said that 
 
            before she had surgery, conservative medical treatment was 
 
            carried through and she wore a splint on her right hand 
 
            only.  
 
            
 
                 Claimant indicated that she was eventually talked into 
 
            having surgery on her right hand as she was told it could be 
 
            fixed.  She indicated Sherry Wilson from defendant employer 
 
            told her that she should have an operation also on her left 
 
            hand.  Claimant indicated she decided to wait and see the 
 
            results on the operation on her right hand before having any 
 
            possible surgery on her left hand.  
 
            
 
                 Claimant described the various work she did prior to 
 
            her surgery and the work she was doing when she had the 
 
            splint on her right hand.  Claimant indicated she continued 
 
            to do similar work even with the splint on her right hand 
 
            but that she would not use her right hand but only use her 
 
            left hand.  Claimant had a right carpal tunnel release on 
 
            November 3, 1989.  Said surgery was performed by Calvin 
 
            Atwell, M.D.  Claimant described the type of work she was 
 
            doing after her surgery and the lighter duty jobs that she 
 
            was to do.  Claimant indicated that she used her left hand.
 
            
 
                 Claimant's testimony was confusing in that at times 
 
            there didn't appear to be a differentiation as to the type 
 
            of jobs and the nature of the jobs and how she performed her 
 
            jobs as between before her first surgery and after any of 
 
            her surgeries.  Claimant indicated she was requested to do 
 
            the various jobs requiring use of both hands after the 
 
            injury that she did prior to her injury.
 
            
 
                 Claimant testified that she had her second right hand 
 
            surgery January 18, 1990, which was another follow-up carpal 
 
            tunnel decompression surgery.  She described the type of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            jobs IBP gave her after her second surgery.  Claimant 
 
            emphasized that at no time did she refuse to accept work or 
 
            actually refuse to work for defendant employer.  She did 
 
            indicate that there were some incidences in which the 
 
            particular job that she was asked to do made her sick.  One 
 
            of these jobs was involving a situation which she would 
 
            watch the waste of the pigs in the rendering area which did 
 
            not require the use of her hands.  
 
            
 
                 Claimant indicated her last date at work at IBP was 
 
            April 24, 1990.  She recalled that day whereby a company 
 
            official told her she was to go the infirmary and then was 
 
            told eventually that she would have to go home.  She 
 
            indicated that she received no explanation why but the 
 
            company emphasized she must leave.  
 
            
 
                 Claimant said she still has pain in her left and right 
 
            hands.  She indicated that she doesn't have pain if she is 
 
            doing nothing, but if she starts doing something, the pain 
 
            occurs.  She indicated the left and right hands are weaker 
 
            since her employment with defendant employer.  She indicates 
 
            there is numbness in her left hand that feels like a 
 
            pulsating feeling all of the time.  She indicates her right 
 
            hand tingles also.  She also indicated that since the 
 
            surgery to her right hand the knuckles feel tight and that 
 
            before the surgery she was able to move her fingers and 
 
            knuckles more freely.  
 
            
 
                 Fancisco Pesina, claimant's husband, testified that his 
 
            wife had complaints of her right and left hand prior to her 
 
            surgery.  He indicated she complained that her right hand 
 
            hurt most. 
 
            
 
                 Mr. Pesina indicated that the surgery helped his wife 
 
            some but not a lot.  When she does any housework she has 
 
            pains from her hands all the way to her shoulder.  He 
 
            indicated that he can put more pressure using his two 
 
            fingers than his wife can with her entire hand.  
 
            
 
                 A report of June 21, 1990, by Dr. Atwell reflects that 
 
            claimant had an EMG performed on May 1, 1989, by Dr. Neiman 
 
            that was compatible with a severe right carpal tunnel 
 
            syndrome.  Surgery apparently had been suggested at that 
 
            time, but claimant feared the operation and elected not to 
 
            proceed at that time.  After continued conservative medical 
 
            treatment, claimant was again examined and had an EMG on 
 
            August 10, 1989, which confirmed a significant carpal tunnel 
 
            syndrome.  The patient also had symptoms suggestive of left 
 
            carpal tunnel syndrome, but the EMG's were negative.  Repeat 
 
            EMG's were performed on September 25, 1989, that again 
 
            confirmed the right carpal tunnel syndrome with a borderline 
 
            carpal tunnel syndrome on the left.  The doctor indicated 
 
            that on November 3, 1989, claimant underwent a release of 
 
            her right carpal tunnel ligament but that apparently 
 
            pursuant to another EMG study on January 9, 1990, claimant 
 
            had scar tissue on the median nerve at the operative site.  
 
            She then underwent a recurrent right carpal decompression 
 
            with a right median neurolosis and freeing up of dense scar 
 
            tissue around the median nerve on January 18, 1990.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 The doctor also indicated that on claimant's last 
 
            examination, she had some subjective complaints of the left 
 
            hand in regards to weakness, tingling and numbness but 
 
            indicated that she had a normal examination to two point 
 
            discrimination as well as normal exam to flexion and 
 
            extension.  The doctor gave a rating of 24 percent permanent 
 
            impairment to claimant's right hand using the AMA Guides.  
 
            He made no reference as to any rating or permanent 
 
            impairment to the left hand.
 
            
 
                 On May 22, 1991, Dr. Atwell wrote another letter in 
 
            which he mentions that post-operatively claimant did not do 
 
            well and had multiple complaints in both hands, both arms 
 
            and both shoulders and was unable to return to any type of 
 
            functional job at IBP.  He mentions that claimant still has 
 
            complained of severe discomfort of her hands, arms and 
 
            shoulders and he did not recommend that she be placed in any 
 
            job of which there is use of the hands or upper extremities 
 
            (joint exhibit B).
 
            
 
                 Joint exhibit C is an April 30 and July 11, 1990, 
 
            letters of Dr. Richard F. Neiman, M.D.  These letters do not 
 
            reflect anything as to claimant's left hand and for the most 
 
            part, other than referring to her surgeries on her right 
 
            hand, refers more to claimant's pain in other parts of her 
 
            body.
 
            
 
                 Joint exhibit D is the medical file cards of defendant 
 
            employer concerning the medical information received by 
 
            defendant employer from the defendant's authorized doctor 
 
            and covers a period of February 17, 1989 to May 23, 1990.  
 
            February 22, 1989, note indicated that claimant was seen by 
 
            Dr. Dean on February 21, 1989, with a diagnosis of overuse, 
 
            both hands and claimant was to do no repetitive grasping or 
 
            gripping with both hands.  On March 2, 1989, there was the 
 
            same diagnosis.  On April 6 there is reference only to the 
 
            right hand and indicated no limitation to the left hand but 
 
            then on April 20, 1989, the note indicates overuse, both 
 
            arms, no repetitive grasping or gripping and no lifting over 
 
            ten pounds both hands.  On May 9, 1989, the notes indicate 
 
            that Dr. Dean indicated that claimant has now progressed to 
 
            bilateral carpal tunnel and is to wear a splint and that 
 
            there was to be no repetitive gripping or grasping of the 
 
            right or left hand.  On May 24, 1989, there is another 
 
            reference that claimant was not to repetitively grip or 
 
            grasp with either hand.  On July 13, 1989, there is 
 
            reference that surgery was recommended for the right hand 
 
            and that there was to be no repetitive gripping or grasping 
 
            of the right hand.  Nothing at this time was mentioned as to 
 
            the left hand.  On August 15, 1989, there is a notation that 
 
            claimant had sore hands and around the same time, a notation 
 
            that surgery was canceled because claimant's hands hurt too 
 
            much.  On August 29, 1989, notation indicates that the 
 
            diagnosis was carpal tunnel syndrome and tendonism of the 
 
            flexor tendons bilaterally in the wrist and forearms.  It 
 
            indicated no lifting of over ten pounds and that her arms 
 
            are not to be elevated above the shoulder height such as 
 
            being currently performed.  There is a similar notation on 
 
            August 31.  It would seem to the undersigned that they are 
 
            referring in the plural, therefore, involving both the left 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            and the right.  On September 7, 1989, there is a reference 
 
            that there was to be no lifting over ten pounds, either 
 
            hand, and no grasping, pushing, pulling, fine manipulation, 
 
            bending, stooping, or reaching above shoulder level.  There 
 
            is a similar notation on September 9, 1989, in which an over 
 
            ten-pound lifting restriction as to both hands is restated.  
 
            On October 13, 1989, there is a note referring to no 
 
            repetitive gripping or grasping of either hand.  On November 
 
            7, 1989, notation indicates that claimant may return to work 
 
            on November 6, 1989, if she can use her left hand only as 
 
            she is not allowed to use her right hand.  It would appear 
 
            from around that date and after what reflects the period 
 
            after her first surgery to her right hand, that there is 
 
            basically reference only to claimant's right hand except on 
 
            April 17, 1990, there is reference to an appointment made 
 
            with Dr. Atwell.  Bilateral carpal tunnel no use either 
 
            hand.  
 
            
 
                 On May 11, 1990, Rouben Mirbegin, M.D., an orthopedic 
 
            surgeon, could not find the slightest indication that 
 
            claimant has reason to continue to complain as much as she 
 
            is doing.  He didn't believe that she has to have any 
 
            restrictions and could return to regular work any time (jt. 
 
            ex. F).  
 
            
 
                 Joint exhibit G is the Muscatine Health Center progress 
 
            notes.  The notations of Dr. Forrest Dean pretty much bear 
 
            out the notations previously referred to in the IBP notes in 
 
            which the medical notes of the defendant employer reflects 
 
            the conversations or understanding of the diagnosis that was 
 
            being made by Dr. Dean regarding this claimant.  The 
 
            undersigned sees no necessity of restating or setting out 
 
            similar information.  It also contains notations of Dr. 
 
            Atwell.  His last note of June 21, 1990, refers to a revised 
 
            letter of June 11, 1990.  This June 21, 1990, letter is 
 
            reflected by joint exhibit B.  Also on May 3, 1990, his 
 
            notes reflect that claimant was back in the office for 
 
            further evaluation of her bilateral carpal tunnel syndrome.  
 
            The undersigned notes the June 11, 1990, letter to Sherry 
 
            Wilson as referred to in joint exhibit G which was revised 
 
            by the June 21, 1990, letter is not in the record.  So what 
 
            was being revised is not known to the undersigned.  
 
            
 
                 Joint exhibit H reflects a letter from a J. Worrell, 
 
            M.D., dated September 25, 1989, in which he had the 
 
            impression that the tests he conducted were compatible with 
 
            a right carpal tunnel syndrome and that the left side is 
 
            borderline.
 
            
 
                 Joint exhibit J is a letter from Robert W. Milas, M.D., 
 
            dated August 21, 1991, in which he examined the claimant.  
 
            It appears in his history that he is not only taking the 
 
            information from the claimant as to the history and what she 
 
            has gone through but also seemed to indicate that she told 
 
            him that the electro diagnostic studies have documented a 
 
            left carpal tunnel syndrome and that the patient was advised 
 
            to have a procedure on the left.  This is the first 
 
            indication in the record that the undersigned could 
 
            determine that there was such a study that so specifically 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            stated that conclusion.  The only item in the record as to 
 
            any suggestion of a left carpal tunnel surgery was 
 
            apparently Sherry Wilson's comment that claimant should also 
 
            have a left when she was going to have her right carpal 
 
            tunnel release.  Sherry Wilson is an employee at defendant 
 
            employer.  The doctor then jumps immediately into a rating 
 
            without really setting out any specific tests that he put 
 
            claimant through to reach his impairment conclusions.  Using 
 
            the AMA Guides he concluded that claimant had a 40 percent 
 
            impairment of both upper extremities secondary to bilateral 
 
            median nerve dysfunction.  He then opined that this would 
 
            calculate to a 48 percent permanent partial impairment of 
 
            the whole person.
 
            
 
                 It is this letter that the claimant's are emphasizing 
 
            to conclude that there is an impairment to the left and 
 
            right extremities and that claimant has a simultaneous 
 
            bilateral carpal tunnel syndrome condition and that 
 
            claimant's impairment is to an upper extremity and not 
 
            limited to left and right hands.
 
            
 
                 This examination and report was over two and one-half 
 
            years after the claimant's alleged injury and may be suspect 
 
            in several respects.  One might question the need to send 
 
            claimant across the river into Illinois with the medical 
 
            personnel in the Quad City areas on the Iowa side.  One also 
 
            questions the doctor's identical impairment of both the left 
 
            and right extremities when the evidence is undisputed that 
 
            claimant had two surgeries on her right hand, one of which 
 
            was to remove scar tissues, and obviously claimant has an 
 
            impairment and problem on her right.  Claimant had no 
 
            surgery as to her left and it's obvious from the record, 
 
            even taking evidence most favorable to the claimant, that 
 
            the left and right hand are not identical assuming there is 
 
            impairment to both extremities.  This doctor also, unlike 
 
            any other doctor who has written a report, refers strictly 
 
            to claimant's upper extremities.  Even though it is not 
 
            uncommon for doctors to refer anything on a particular 
 
            schedule member on a left or right side as being a part of 
 
            the upper extremities, it is obvious in this record that 
 
            claimant's injuries, whatever they might be, are to her 
 
            hand(s) and not beyond her hand(s).  She showed the area of 
 
            her surgery on her right hand and that did not even go into 
 
            her wrist.  A wrist is also under the current agency law 
 
            considered the hand anyway.  It is obvious in looking at the 
 
            doctor's impairment ratings and his conversion to a 48 
 
            percent permanent impairment to claimant's body as a whole 
 
            that he is not considering the hands as being the area of 
 
            impairment and therefore, is using upper extremities in an 
 
            area beyond the hands.  Otherwise, if the doctors meant the 
 
            hands and not the upper extremities then the conversion to 
 
            the body as a whole would have been a lessor figure.
 
            
 
                 This is a difficult case as to determining the issue as 
 
            to whether claimant had only a right hand schedule member 
 
            injury and therefore, an impairment only to the right hand, 
 
            or whether she actually has a bilateral carpal tunnel 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            simultaneous injury.  The difficulty in coming to a 
 
            conclusion is the reference in the defendant employer's 
 
            medical records in which Dr. Dean has apparently related 
 
            information back to defendant employer and is also reflected 
 
            in Dr. Dean's records that there were problems with both 
 
            hands.  The substantial weight of evidence shows the real 
 
            problems were to the right hand and that no surgery was ever 
 
            done on the left.  What concerns the undersigned is that 
 
            there is actually no permanent impairment given by any 
 
            doctor other than Dr. Milas as referred to above, referring 
 
            to the left hand.
 
            
 
                 The undersigned finds the report of Dr. Milas totally 
 
            unacceptable.  It would appear that he has an incomplete 
 
            history or incomplete understanding of claimant's medical or 
 
            prior medical tests.  There is no evidence that he had any 
 
            other medical information from any other doctor.  He did a 
 
            one-time apparently brief examination two and one-half years 
 
            after the alleged injury.  It is obvious that this doctor 
 
            was hunted by the claimant through her attorney to try to 
 
            obtain a medical conclusion more to their liking.  The 
 
            doctor's conclusion as to a 40 percent impairment to both 
 
            upper extremities appears unbelievable based on the record 
 
            herein.  As mentioned earlier, it is unbelievable how the 
 
            doctor could determine 40 percent impairment of both upper 
 
            extremities considering the medical we have here.  And 
 
            additionally, to increase his impairment conclusion, he 
 
            refers to upper extremity.  There is nothing in this record 
 
            that the undersigned believes the doctor could make a 
 
            judgment that claimant's injury is not to her hands but is 
 
            to her upper extremities, and in this case, obviously he's 
 
            referring to the arms.  The undersigned is not going to 
 
            consider Dr. Milas' report any further.
 
            
 
                 Going to the remaining medical evidence, it would 
 
            appear that there is no impairment rating of claimant's left 
 
            hand assuming she does have a work injury.  If we assumed 
 
            there was a bilateral simultaneous carpal tunnel injury, and 
 
            taking a 24 percent permanent impairment to claimant's right 
 
            hand and a zero rating as to claimant's left hand, that 
 
            would result in a 13 percent of 500 weeks or 65 weeks.  The 
 
            undersigned does not believe that the claimant has carried 
 
            her burden of proof to show that claimant does in fact have 
 
            a bilateral simultaneous carpal tunnel injury which would be 
 
            rated under 85.34(2)(s).
 
            
 
                 The undersigned finds that Dr. Atwell's opinions in the 
 
            report of June 21, 1990, which was also followed up by a May 
 
            21, 1991, report that did not change any prior conclusion is 
 
            more acceptable.  The undersigned therefore finds that 
 
            claimant has a total hand impairment of 24 percent and that 
 
            taking 24 percent times 190 weeks would entitled to claimant 
 
            to 45.6 weeks of benefits at the rate of $183.20.  Claimant 
 
            has already been paid this amount as stipulated by the 
 
            parties. 
 
            
 
                 Defendant raised the 85.33(3) issue claiming that 
 
            claimant did not accept work.  The only evidence of this is 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            reflected in claimant's exhibit D which is the medical card 
 
            file that the defendant employer carries on the claimant.  
 
            The undersigned believes that in those incidences of which 
 
            the defendant is referring, that the claimant's testimony as 
 
            to these events or the fact that she did not in fact refuse 
 
            certain work or duties is more correct and reliable.  It 
 
            appeared under the circumstances, whatever may have 
 
            occurred, that claimant had reason to either be reluctant or 
 
            if sick, not to continue on a particular duty taking into 
 
            consideration her overall health and injury problems.  The 
 
            undersigned finds that defendant did not carry its burden as 
 
            to that defense.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of February 
 
            17, 1989, is causally related to the disability on which she 
 
            now bases her 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). 
 
            
 
                 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. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The burden of proof is on the party asserting the 
 
            affirmative of an issue in an administrative proceeding; "on 
 
            the party who would suffer loss if the issue were not 
 
            established."  Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 
 
            1973); Norland v. Ides, 412 N.W.2d 904 (Iowa 1987)
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 A wrist injury is an injury to the hand, not the upper 
 
            extremity.  The hand extends to the distal end of the radius 
 
            and ulna, including the carpus or wrist.  Elam v. Midland 
 
            Mfg., II Iowa Industrial Commissioner Report 141 (App. 
 
            1981).
 
            
 
                 It is further concluded that claimant did not incur a 
 
            simultaneous bilateral carpal tunnel injury or any injury to 
 
            her right and left hand simultaneously on February 17, 1989.
 
            
 
                 That claimant incurred a work-related 24 percent 
 
            permanent impairment to her right hand on February 17, 1989, 
 
            resulting in claimant being entitled to 45.6 weeks of 
 
            permanent partial disability benefits.
 
            
 
                 Claimant did not incur any permanent impairment to her 
 
            left hand as a result of any work injury of February 17, 
 
            1989.
 
            
 
                 Claimant did not refuse to accept suitable work, and 
 
            therefore, should not be penalized under the provisions of 
 
            85.33(3) of the Iowa Administrative Code.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE, ORDERED:
 
            
 
                 Claimant takes nothing further from these proceedings.  
 
            The parties have agreed that claimant has already been 
 
            compensated on the basis of a 24 percent permanent 
 
            impairment of her right hand and therefore, has received 
 
            forty-five point six (45.6) weeks of benefits at the rate of 
 
            one hundred eighty-three and 20/100 dollars ($183.20).
 
            
 
                 That defendant shall pay the costs of this action.
 
            
 
                 
 
            
 
                 
 
            
 
                 
 
            
 
                 Signed and filed this _____ day of June, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr. William J. Bribriesco
 
            Attorney at Law
 
            2407 18th St, STE 202
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Bettendorf, Iowa  52722
 
            
 
            Ms. Marie L. Welsh
 
            Attorney at Law
 
            PO Box 515, Department 41
 
            Dakota City, NE  68731
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                                            1402.40 1403.30 1800 2200 
 
                                            Filed June 15, 1992
 
                                            Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARIA PESINA,                 :
 
                                          :
 
                 Claimant,                :      File No. 940383
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            IBP, INC.,                    :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            1402.40 1800
 
            Found claimant did not have a simultaneous bilateral carpal 
 
            tunnel injury, but only an injury to her right hand (not 
 
            upper extremity).  
 
            
 
            1800 2200
 
            Found claimant hunted for a favorable opinion from an 
 
            Illinois doctor who gave 40 percent permanent impairment to 
 
            both right and left upper extremities (not hands) and a 48 
 
            percent body as a whole impairment under 85.34(2)(s).  
 
            Deputy completely discounted this doctor's opinion.  
 
            Claimant had two surgeries to right hand and none on the 
 
            left.  Deputy accepted a doctor's opinion of 24 percent 
 
            permanent impairment to claimant's right hand.  45.6 weeks 
 
            (237 x 190) which defendant had already paid.
 
            
 
            1403.30
 
            Found defendant did not prove claimant refused to accept 
 
            work under 85.33(3).
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         GREGORY W. WITT,      
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                File No. 940468
 
         HENKELS & McCOY,      
 
                                                 A P P E A L
 
              Employer,   
 
                                               D E C I S I O N
 
         and         
 
                     
 
         LIBERTY MUTUAL INSURANCE   
 
         COMPANY,    
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         December 17, 1991 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 October, 1992.
 
         
 
         
 
         
 
         
 
                                    ________________________________
 
                                            BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Daniel P. Wilson
 
         Attorney at Law
 
         303 West State
 
         P.O. Box 367
 
         Centerville, Iowa 52544
 
         
 
         Mr. James C. Huber
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         418 6th Ave.
 
         Des Moines, Iowa 50309-2421
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               9998
 
                                               Filed October 28, 1992
 
                                               Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            GREGORY W. WITT,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 940468
 
            HENKELS & McCOY,      
 
                                                 A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL INSURANCE   
 
            COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed December 
 
            17, 1991.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GREGORY W. WITT,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 940468
 
            HENKELS & McCOY,              :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the facts
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Gregory Witt, against defendant employer Henkels & 
 
            McCoy, and defendant insurance carrier, Liberty Mutual 
 
            Insurance Company, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an injury sustained 
 
            on February 21, 1989.  This matter was set to be heard on 
 
            November 12, 1991, in Des Moines, Iowa.
 
            
 
                 The following issues were presented for resolution:
 
            
 
                 1.  Whether claimant is entitled to permanent partial 
 
            disability benefits; and,
 
            
 
                 2.  Whether claimant is entitled to medical benefits 
 
            for low back treatment.
 
            
 
                 The record in this case consists of testimony from the 
 
            claimant; J. D. Falkner; Donna Witt; and Michael Fogelson; 
 
            joint exhibits 1-8; and, claimant's exhibits 1-7.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant was born on January 27, 1958.  At the time of 
 
            the hearing, he was 33 years of age, married with two 
 
            dependent children.
 
            
 
                 Claimant received a high school degree, and completed 
 
            one year of college.  He has had no other formal education.
 
            
 
                 Currently, he is employed by TeleData Installers, a 
 
            business in which he has an ownership interest.  Claimant 
 
            works out of his home, and provides telecommunication 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            support services to companies such as AT&T and GTE.  He 
 
            began this business in August of 1991.
 
            
 
                 Since high school, claimant has been regularly employed 
 
            in the telecommunications business.  He has worked as an 
 
            installer and a repair person of basic services for 
 
            telephonic communications.  Claimant has also worked as an 
 
            engineer and drafter, on site engineer, crew supervisor and 
 
            senior project engineer for various companies, which most 
 
            have specialized in telecommunications.
 
            
 
                 In February of 1989, claimant was working as a senior 
 
            project engineer for a fiber optic job site in Strawberry 
 
            Point, Iowa.  On February 21, 1989, claimant and a coworker, 
 
            J. D. Falkner, were using a company pickup to assist them in 
 
            taking field notes for the job site in Strawberry Point.  
 
            Claimant had been driving the truck, and he and Mr. Falkner 
 
            decided to trade places.  As claimant went around to get 
 
            into the truck on the passenger side, the pickup lunged 
 
            forward, and claimant was hit by the doorjamb on the 
 
            tailbone.  He was thrown forward and hit the running board 
 
            with his left elbow and hand.
 
            
 
                 Claimant stated that he felt a sharp pain in his low 
 
            back after being hit by the doorjamb and that both his left 
 
            arm and lower back felt stiff and sore.  Claimant returned 
 
            to work and finished his work for the day.
 
            
 
                 On February 24, 1989, claimant sought treatment from 
 
            Jack Fennel, D.O.  Mr. Fennel's notes indicate that claimant 
 
            requested a shot for a cold, sore throat, cough, aches and 
 
            pains.  According to a late entry which is dated January 8, 
 
            1990, claimant was also given osteopathic manipulation 
 
            therapy on February 24, 1989 (Joint Exhibit 1, page 1).
 
            
 
                 In March of 1989, claimant sought treatment from Thomas 
 
            Turnbaugh, M.D., a physician located in Jefferson City, 
 
            Missouri.  Dr. Turnbaugh's notes indicate that claimant 
 
            displayed a positive drop test on the left shoulder with 
 
            pain in the left arm.  Claimant was referred to C. Craig 
 
            Satterlee, M.D., an orthopedic specialist in Kansas City, 
 
            Missouri.  Claimant was examined by Dr. Satterlee on March 
 
            31, 1989, and complained of left arm and shoulder problems.  
 
            Claimant attributed the problems with the left shoulder as 
 
            beginning at the age of nine when he was injured in a motor 
 
            vehicle accident.  Upon examination, Dr. Satterlee noted 
 
            that claimant's left hand was weak in abduction and adduc
 
            tion of the fingers.  Claimant had a positive Tinel's at the 
 
            ulnar nerve at the elbow and the median nerve at the wrist.  
 
            Wrist strength was less on the left than on the right.  Dr. 
 
            Satterlee's impression was that of multidirectional 
 
            instability of the shoulder and probable severe cubital 
 
            tunnel syndrome of the left arm and probable carpal tunnel 
 
            syndrome at the left wrist.  He ordered NC studies, which 
 
            showed evidence of carpal tunnel syndrome with distal motor 
 
            latency on the left.  The test results also showed severe 
 
            cubital tunnel syndrome with associated denervation in the 
 
            ulnar muscles of the forearm and hand on the left side.  
 
            Claimant was scheduled to undergo surgery in the form of a 
 
            left carpal tunnel and cubital release (Jt. Ex. 2, pp. 3-7).  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            It is noted that at no time during the examination, nor on 
 
            the initial patient information sheet, did claimant complain 
 
            of any low back pain or injury to his low back.
 
            
 
                 Claimant tolerated the procedure well, and began 
 
            rehabilitation in April of 1989.  Dr. Satterlee's notes 
 
            indicate that claimant would have a healing period of six to 
 
            nine months, although Dr. Satterlee also indicated that 
 
            claimant would be able to return to work activities such as 
 
            drafting whenever claimant felt "comfortable." (Jt. Ex. 2, 
 
            pp. 8-9)
 
            
 
                 Claimant continued to receive follow-up treatment from 
 
            Dr. Satterlee, and in July of 1989 underwent another 
 
            postoperative evaluation and examination.  Claimant 
 
            displayed full range of motion, full flexion and extension, 
 
            supination and pronation of the left elbow.  The wrist also 
 
            showed full range of motion, with the wounds well healed 
 
            with no sign of infection.  There was some decrease 
 
            sensation in the ulnar nerve area of the left hand.  
 
            Claimant was to continue grip and strengthening exercises, 
 
            and was released to return to regular duty.  He was to 
 
            return in three months for a recheck (Jt. Ex. 2, p. 10).
 
            
 
                 Claimant returned in October of 1989 with noted 
 
            improvements in the grip strength and pinch strength.  He 
 
            also displayed a normal range of motion of the left elbow 
 
            and wrist, and was scheduled for a follow-up visit in 
 
            January of 1990 (Jt. Ex. 2, p. 14).
 
            
 
                 In December of 1989, claimant returned to Dr. Fennel 
 
            complaining of numbness in the left leg and pain at the end 
 
            of his tailbone.  He attributed these problems to the 
 
            accident in February of 1989.  Straight leg raising tests 
 
            showed some pain on the left side, and claimant was 
 
            scheduled for an MRI scan, as Dr. Fennel wanted to rule out 
 
            a herniated lumbar disc.  Claimant was also given 
 
            osteopathic manipulation therapy (Jt. Ex. 1, p. 1).
 
            
 
                 The results of the MRI, taken December 30, 1989, showed 
 
            no evidence of a herniated or bulging disc in the lumbar 
 
            spine (Jt. Ex. 5, p. 70).
 
            
 
                 Claimant returned to Dr. Satterlee to be rechecked for 
 
            the left elbow and wrist.  With respect to the left upper 
 
            extremity, Dr. Satterlee felt that claimant had reached 
 
            maximum medical improvement, and rendered an opinion that 
 
            claimant had sustained a 15 percent functional impairment of 
 
            the left elbow, and a 5 percent functional impairment for 
 
            the left wrist.  During this examination, claimant 
 
            apparently complained of low back pain, and Dr. Satterlee 
 
            reviewed an x-ray which revealed no abnormalities.  He 
 
            recommended a back conditioning program and told claimant to 
 
            follow up with local physicians (Jt. Ex. 2, pp. 14-15).
 
            
 
                 Claimant followed up with Dr. Fennel on January 15, 
 
            1990, received treatment for cold symptoms, and also 
 
            received an injection to the lumbar spine (Jt. Ex. 1, p. 2).
 
            
 
                 Eventually, claimant ended up at the University of Iowa 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Hospitals and Clinics, specifically the spine diagnostic and 
 
            treatment center, in Iowa City, Iowa.  These records, dated 
 
            September 12, 1990, indicate that claimant was evaluated by 
 
            James Weinstein, M.D., a reconstructive spinal surgeon.  
 
            Although during the examination claimant complained of pain 
 
            and discomfort in the left lower extremity and base of the 
 
            spine, and described his pain level as moderate, the 
 
            physical examination showed no abnormalities (Jt. Ex. 6, p. 
 
            71).  Other evaluations, including psychological, 
 
            vocational, and cardiovascular testing, were normal. (Ex. 6, 
 
            pp. 72-85).
 
            
 
                 Finally, on November 9, 1990, Dr. Weinstein offered the 
 
            following opinion:
 
            
 
                    Mr. Witt suffered a work related injury to his 
 
                 back and left arm on 2/21/89.  In regards to to 
 
                 [sic] back injury, I have just reviewed his 
 
                 outside MRI which showed some slight changes at 
 
                 T2, L5-S1 and question if there may [be] some 
 
                 annular pathology causing his back and leg pain.  
 
                 At this time I estimate his permanent partial 
 
                 impairment for his back only to be 2% of his body 
 
                 as a whole.
 
            
 
            (Jt. Ex. 6, p. 86)
 
            
 
                 And, on December 28, 1990, Dr. Satterlee summarized his 
 
            care provided to claimant:
 
            
 
                    In looking at the patient's initial encounter 
 
                 sheet from 3/31/89 under the section of history of 
 
                 present illness date of first symptoms, he reports 
 
                 3/25/89 hurt left shoulder.  Mr. Witt mentioned 
 
                 his back to me during the time period between our 
 
                 initial visit in January 1990.  I am unable to 
 
                 recall what period.  As recorded in the office 
 
                 record of 1/12/90, he told me that he had some 
 
                 back pain while sitting and had been under the 
 
                 care of an osteopathic group in Kirksville, 
 
                 Missouri, and had a work up including an MRI which 
 
                 by his report was normal.  After exam and x-rays, 
 
                 I thought he might benefit from a back 
 
                 conditioning program and he said he would follow 
 
                 up with his local doctors for this.
 
            
 
                    I do not feel that I can reliably give an 
 
                 opinion as to whether there is a cause or 
 
                 relationship between the event of February 21, 
 
                 1989, and his more recent back complaints because 
 
                 I did not question him specifically regarding this 
 
                 and obtained no history from him specifically 
 
                 regarding a cause or relationship between his 
 
                 accident and his back pain.
 
            
 
            (Jt. Ex. 2, p. 16).
 
            
 
                 At the time of the hearing, claimant was part owner of 
 
            a business which provides consulting and other services to 
 
            telecommunications businesses.  His earnings are comparable 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            to his income at the time of the injury.
 
            
 
                         analysis and Conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant is 
 
            entitled to permanent partial disability payments for his 
 
            back condition.
 
            
 
                 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).
 
            
 
                 There appears to be no dispute that claimant was 
 
            injured while working for defendant, Henkels & McCoy.  
 
            Medical treatment has been provided to claimant with respect 
 
            to his left upper extremity, and claimant has been paid a 
 
            total of 58.286 weeks of compensation at the rate of $328.50 
 
            per week, a total of $19,146.95.  Claimant is arguing that 
 
            he also sustained an injury to his back, and is therefore 
 
            entitled to additional permanency benefits in the form of 
 
            compensation for his industrial disability.
 
            
 
                 Claimant was injured in February of 1989.  During the 
 
            next ten months, although claimant had ample opportunities 
 
            to receive medical treatment for his back, he failed to do 
 
            so.  As noted under the Facts section, Dr. Fennel's records 
 
            contain a late entry, stating that claimant did receive an 
 
            osteopathic manipulation to his lower back two days after 
 
            the accident.  This entry was not put into the records until 
 
            almost one year after the accident.
 
            
 
                 Claimant may have received one treatment to his back 
 
            several days after the accident, as noted in Dr. Fennel's 
 
            records.  Since claimant did not seek any other treatment 
 
            for nearly ten months, he apparently felt relief and did not 
 
            feel the need to get additional medical attention.
 
            
 
                 Although claimant eventually did complain of low back 
 
            pain, there is evidence in the record which suggests that 
 
            between the accident and his complaints, he had been driving 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            a different type of truck that bothered his back.  During 
 
            this time, he was working for a different employer, Network 
 
            Field Services.  The medical records dated December 21, 
 
            1989, substantiate that claimant's back was "getting worse 
 
            over the past month," and during the hearing, claimant 
 
            confirmed that during October and November 1989, he had been 
 
            driving a three-quarter ton truck which he was unable to 
 
            drive or ride in for long periods of time.
 
            
 
                 Unfortunately, it is suspicious that Dr. Fennel's 
 
            records contain back dated entries.   And, although claimant 
 
            testified that he did not readily seek medical treatment for 
 
            medical problems, he visited Dr. Fennel for colds and 
 
            overall aches and pains prior to this accident.  Claimant 
 
            appeared to be someone who would not be reluctant to visit a 
 
            doctor if he thought he needed medical treatment.
 
            
 
                 And, although Dr. Weinstein causally connected 
 
            claimant's back problem to the work-related accident in 
 
            February 1989, Dr. Weinstein only examined claimant on one 
 
            occasion, a visit which was more than one and one-half years 
 
            from the date of the accident.  There are no objective 
 
            findings that substantiates Mr. Witt's claim of back 
 
            problems.  Dr. Weinstein offered that claimant sustained a 2 
 
            percent functional impairment of the back, yet he did not 
 
            indicate how he arrived at this impairment.  Dr. Satterlee, 
 
            who consistently treated claimant for his left upper 
 
            extremity problems, was unable to make a causal connection 
 
            between claimant's back problems and the February 1989 
 
            work-related accident due to incomplete histories and a lack 
 
            of knowledge that claimant even had back problems.
 
            
 
                 Claimant has failed to prove by a preponderance of the 
 
            evidence that he sustained any type of back injury in 
 
            February of 1989 which would allow him to receive additional 
 
            permanent partial disability benefits.
 
            
 
                           
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That each party shall bear their own respective costs 
 
            for pursuing this claim.
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Daniel P Wilson
 
            Attorney at Law
 
            303 W State St
 
            P O Box 376
 
            Centerville IA 52544
 
            
 
            Mr James C Huber
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1402.20; 5-1402.30
 
                                          Filed December 17, 1991
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GREGORY W. WITT,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 940468
 
            HENKELS & McCOY,              :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1402.20; 5-1402.30
 
            Claimant injured his left elbow and wrist in a work-related 
 
            accident.  He underwent successful surgery.
 
            Almost one year later, claimant started to undergo 
 
            evaluations regarding a low back condition.  He had worked 
 
            for several employers since the initial injury.
 
            Claimant denied benefits.  One evaluator made a causal 
 
            connection between the injury and claimant's back condition, 
 
            but the opinion was based on an incomplete history.