Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LINDA HIERONIMUS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 940987
 
            K PRODUCTS, INC.,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            GENERAL CASUALTY COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Linda Hieronimus, against her employer, K 
 
            Products, Inc., and its insurance carrier, General Casualty 
 
            Companies, defendants.  The case was heard on October 14, 
 
            1991, in Storm Lake, Iowa.  The record consists of the 
 
            testimony of claimant.  The record also consists of the 
 
            testimonies of Gary Hieronimus, spouse of claimant, and Ken 
 
            L. Vander Molen, safety and security manager for 
 
            defendant-employer.  Additionally, the record consists of 
 
            joint exhibits A-E.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether there is a 
 
            causal relationship between claimant's injury and the 
 
            disability; 2) whether claimant is entitled to temporary 
 
            disability, healing period benefits, or permanent partial 
 
            disability benefits; 3) whether claimant is entitled to 
 
            permanent partial disability benefits; and 4) whether 
 
            claimant is an "odd lot" employee.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant is married with four children, three of which 
 
            are minors.  She is a 1967 high school graduate.  She has 
 
            lived on a farm for the past 12 years.  Prior to the date of 
 
            her injury, claimant assisted her husband on the farm.  She 
 
            hauled feed, washed bulk milk tanks and performed other farm 
 
            chores.
 
            
 
                 Claimant's employment has not been continuous since her 
 
            graduation from high school.  She has had periods where she 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            did not work but stayed at home to raise her children.  In 
 
            1980 claimant commenced her employment with 
 
            defendant-employer.  She was hired as a finisher.  Her 
 
            duties included placing banding materials inside baseball 
 
            caps and winter hats.  She was required to manually cut the 
 
            material with scissors in her right hand and to hold the hat 
 
            in her left hand.
 
            
 
                 Claimant worked three to four months.  However, she 
 
            quit after she became pregnant.  Following the birth of her 
 
            child, claimant worked in a cafe owned by claimant's mother.
 
            
 
                 In 1984 claimant returned to work for 
 
            defendant-employer.  She was again hired as a finisher with 
 
            the same duties she had during her previous employment.  
 
            Claimant worked in this capacity for six years.
 
            
 
                 During the summer of 1989 claimant testified she 
 
            experienced bumps on both of her wrists.  She is right hand 
 
            dominant.  Gradually, claimant noticed increasing pain, 
 
            especially during the night.  She testified she had tingling 
 
            in both hands up the forearms and into her elbows.  She 
 
            sought medical treatment from her personal physician, Dr. 
 
            Lyons, M.D. (first name unknown).  He, in turn, referred 
 
            claimant for an EMG.  The EMG revealed a moderately severe 
 
            bilateral carpal tunnel condition.
 
            
 
                 Defendant-employer directed claimant to Richard 
 
            Pretorius, M.D.  The physician diagnosed claimant as having 
 
            "moderately severe bilaterl [sic] carpal tunnel syndrome."
 
            
 
                 Claimant was then referred to Walter O. Carlson, M.D., 
 
            a surgeon in Sioux Falls, South Dakota.  On February 19, 
 
            1990, Dr. Carlson performed a right carpal tunnel release.  
 
            Later claimant developed reflex sympathetic dystrophy in the 
 
            right upper extremity.
 
            
 
                 Subsequent to her surgery, claimant engaged in all 
 
            types of physical therapy.  She had a right ganglion block.  
 
            She participated in psychological counseling.  She engaged 
 
            in a pain management course.  However, Dr. Carlson opined it 
 
            would take from 12 to 18 months to resolve the RSD.  
 
            Claimant was not released to return to work at her former 
 
            position.
 
            
 
                 Claimant experienced continued numbness, tingling and 
 
            pain in her right upper extremity.  Claimant was reluctant 
 
            to have surgery on her left upper extremity because of the 
 
            problems she had experienced with the right one.
 
            
 
                 As of February 28, 1991, Dr. Carlson opined the 
 
            following relative to claimant's condition.
 
            
 
                 Based upon her examination at McKennan Hospital, 
 
                 as well as her physical examination in our office, 
 
                 a review of her examinations in the past, and her 
 
                 history, she would receive a 39 percent whole 
 
                 person impairment based upon almost complete 
 
                 sensory loss of the right wrist from the wrist 
 
                 distally as well as motor loss in the median nerve 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 distribution and a left carpal tunnel syndrome, 
 
                 unoperated.
 
            
 
                 Defendants then referred claimant to Leonard E. Weber, 
 
            M.D., a neurologist.  He examined claimant for purposes of 
 
            making an evaluation.  Dr. Weber opined that:
 
            
 
                 Impression:
 
            
 
                     1.  History of bilateral median neuropathies 
 
                    in the         carpal tunnels, worse on the 
 
                    right both               clinically and 
 
                    electromyographically.
 
            
 
                         -- these would appear to be related to job             
 
                    activities around the summer of 1989.
 
            
 
                     2.  Right carpal tunnel release surgery on 
 
                    2/19/90.
 
            
 
                     3.  Abnormal thermogram on 6/22/90 felt by the             
 
                    performing physician to indicate reflex                
 
                    sympathetic dystrophy in the right upper               
 
                    extremity.
 
            
 
                         -- the thermogram report fails to indicate 
 
                    what      side and what part of what side was 
 
                    abnormal.
 
            
 
                     4.  Currently, no objective evidence of any 
 
                 reflex            sympathetic dystrophy.
 
            
 
                     5.  Her subjective diffuse right upper 
 
                 extremity                pain is probably in large 
 
                 part functional in               nature at the 
 
                 present time.
 
            
 
                         -- her residual subjective discomfort may                   
 
                 possibly be in part referred pain from the                
 
                 right median neuropathy in the right carpal               
 
                 tunnel as a minor component (with symptom                 
 
                 magnification).
 
            
 
                     6.  Functional overlay on the sensory 
 
                 examination,           in her exertion of strength 
 
                 in the limb and in          her perception of 
 
                 discomfort when the joints                 are 
 
                 moved.
 
            
 
                     7.  Currently objectively normal neurologic 
 
                 exam,               including right upper 
 
                 extremity strength, right             upper 
 
                 extremity sensation, right upper                     
 
                 extremity range of passive motion, and right                   
 
                 upper extremity autonomic function.
 
            
 
                         ....
 
            
 
                         Her stellate ganglion block did not alter                   
 
                 symptoms.  I would not favor any further                       
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 sympathetic blocks, and would not favor any            
 
                 cervical sympathetic surgical procedures.
 
            
 
                         If she fails to improve with physical 
 
                 therapy,          encouragement, and the use of 
 
                 medications like            the above, then she 
 
                 needs to get into an                       
 
                 established and formal pain clinic program,               
 
                 such as that at the University of Nebraska                
 
                 Medical Center, or at the University of Iowa,               
 
                 that would be able to deal with the emotional               
 
                 aspects coloring her symptoms and preventing                   
 
                 her from restoring use to the limb.
 
            
 
                         I believe it would be to her benefit to 
 
                 resume            some sort of job activities, 
 
                 with restrictions.               Initially, the 
 
                 attempt should be to get her               into a 
 
                 job wherein she could work one handed,               
 
                 with restrictions against monotonous and                       
 
                 repetitious flexion extension movements at the            
 
                 left wrist, and against constant pressure into            
 
                 the left palm.  As she resumes use of the right           
 
                 upper extremity in ordinary activities, she               
 
                 could then resume job activities using both               
 
                 hands, the permanent restriction being against            
 
                 monotonous and repetitious flexion extension                
 
                 movements at either wrist, and against constant           
 
                 pressure into either palm.
 
            
 
                         As to the point of maximum medical 
 
                    improvement,        I would estimate another 
 
                    six months, hopefully         so she can shed 
 
                    some of her functional overlay.         The 
 
                    problem with assigning this lady a per cent       
 
                    [sic] permanent impairment rating now is that          
 
                    she has extensive functional overlay, and this         
 
                    prevents detection of any subtle changes in            
 
                    sensation in the median nerve territory that           
 
                    could provide the basis for some per cent [sic]        
 
                    impairment.
 
            
 
                         I base percent permanent impairment on the                  
 
                 Guides to the Evaluation of Permanent                     
 
                 Impairment, the third edition published by the            
 
                 American Medical Association.  Based on these                  
 
                 guidelines, a rough estimate of her current per           
 
                 cent [sic] impairment (not necessarily                    
 
                 permanent) relative to the job activities of                   
 
                 the summer of 1989 would be 20% upper extremity           
 
                 impairment (12% whole person impairment).  This           
 
                 estimate is given under the assumption that she           
 
                 might have some numbness in the right median                   
 
                 territory underlying the functional sensory               
 
                 changes, that could be sufficient to prevent                   
 
                 some activities.  Only with the passage of                
 
                 time, will we be able to determine if these               
 
                 assumptions are valid or not.
 
            
 
                 Eventually, defendants retained Ms. Kathryn M. Bennett 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            to assist claimant with vocational rehabilitation.  Ms. 
 
            Bennett assisted claimant with drafting a more positive and 
 
            effective resume than what claimant had been using.  Ms. 
 
            Bennett also managed to arrange a meeting between claimant 
 
            and defendant-employer relative to light duty work.  
 
            Claimant cancelled the meeting.  She indicated she was not 
 
            interested in driving to Orange City for a position.  
 
            Claimant was more interested in bottle feeding calves at 
 
            home.
 
            
 
                                conclusions of law
 
            
 
                 The first issue to address is the nature and extent of 
 
            claimant's permanent disability.  There is a bilateral 
 
            carpal tunnel condition involved here.  Section 85.34(2)(s) 
 
            is applicable.  The section reads:
 
            
 
                 The loss of both arms, or both hands, or both 
 
                 feet, or both legs, or both eyes, or any two 
 
                 thereof, caused by a single accident, shall equal 
 
                 five hundred weeks and shall be compensated as 
 
                 such, however, if said employee is permanently and 
 
                 totally disabled the employee may be entitled to 
 
                 benefits under subsection 3.
 
            
 
                 Workers' compensation benefits for permanent partial 
 
            disability of two members caused by a single accident is a 
 
            scheduled benefit under Iowa Code section 85.34(2)(s) and 
 
            that the degree of impairment caused by a partial loss must 
 
            be computed on the basis of functional, rather than 
 
            industrial disability.  Simbro v. DeLong's Sportswear, 332 
 
            N.W.2d 886 (1983).
 
            
 
                 Bilateral carpal tunnel syndrome resulting from one 
 
            gradual injury process constitutes the loss of two members 
 
            from one accident and is evaluated on a functional basis 
 
            under Iowa Code section 85.34(2)(s).  Himschoot v. Montezuma 
 
            Mfg., file numbers 672778 & 738235 (Appeal Dec. April 15, 
 
            1988) (affirmed and appealed to Court of Appeals, February 
 
            22, 1990).
 
            
 
                 Bilateral carpal tunnel syndrome, ulnar nerve 
 
            compression, and Guyon's canal compression limit a condition 
 
            to hands, wrists and arms, and therefore the claimant's 
 
            impairment did not extend to the body as a whole.  Johnson 
 
            v. George A. Hormel & Co., (Appeal Decision, June 21, 1988).
 
            
 
                 The wrist is part of the hand and not part of the arm.  
 
            Elam v. Midland Mfg., 2 Iowa Indus. Comm'r Rep. 141 (Appeal 
 
            Decision 1981).
 
            
 
                 Claimant sought industrial disability, based on 
 
                 pain extending to her shoulders and neck.  
 
                 However, both doctors that rated claimant's 
 
                 bilateral hand conditions confined their ratings 
 
                 to the upper extremities.  The only evidence of 
 
                 involvement of the shoulders and neck was 
 
                 claimant's subjective complaints of pain, which 
 
                 were not substantiated.  In addition, even if such 
 
                 pain existed, it was not shown to be disabling.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Finally, there were non-work incidents in the 
 
                 record that could as likely have caused any 
 
                 shoulder or neck pain, and claimant was diagnosed 
 
                 as suffering significant functional overlay.  Held 
 
                 that claimant had failed to carry her burden to 
 
                 show that her injury extended to the body as a 
 
                 whole.  Terwilleger v. Snap-On Tools Corp., Appeal 
 
                 Decision, May 24, 1991 (CRC/jeh, #777628, 791749, 
 
                 862946, 877065).
 
            
 
                 It is also determined that claimant has sustained 
 
            reflex sympathetic dystrophy to the right upper extremity.  
 
            The RSD does not extend to the body as a whole.  Rather the 
 
            RSD is confined to the right upper extremity.  Claimant has 
 
            established that the RSD is causally related to her 
 
            work-related bilateral carpal tunnel condition.  Claimant's 
 
            treating physician, who is board certified in orthopedics, 
 
            has testified:
 
            
 
                 Q  Doctor, do you have an opinion as to whether -- 
 
                    as to the cause of Linda's RSD, her reflex 
 
                    sympathetic dystrophy?
 
            
 
                 A  No.  It followed her carpal tunnel syndrome 
 
                    surgery.  But don't know if anyone knows 
 
                    exactly what causes it.  She developed it 
 
                    following her surgery.  Usually it links the 
 
                    two.
 
            
 
                 Q  Do you have an opinion as to whether Linda 
 
                    would have developed this RSD had she not had 
 
                    the carpal tunnel surgery?
 
            
 
                       MR. HARRISON:  Escuse [sic] me.  I'm going 
 
                    to object to that question as calling for 
 
                    speculation on the part of this doctor.  He had 
 
                    not seen her before February 7th as he 
 
                    testified, and has -- his answer to the last 
 
                    question will indicate that an answer to this 
 
                    one would be speculative.  Go ahead, Doctor.
 
            
 
                 A  Yeah.  It would seem unlikely that she would 
 
                    have developed it because, as I mentioned, the 
 
                    literature is full of articles that would show 
 
                    that one of the complications that can occur 
 
                    following a carpal tunnel surgery is a reflex 
 
                    dystrophy.
 
            
 
            (Exhibit C, page 16, line 22 through page 17, line 16)
 
            
 
                 Dr. Carlson has opined that it is unlikely that 
 
            claimant would have developed RSD without the carpal tunnel 
 
            release.  Additionally, Dr. Carlson has testified that it is 
 
            quite common for RSD to develop after a carpal tunnel 
 
            release.  Then there is the testimony of claimant herself.  
 
            She had experienced no symptoms regarding RSD until after 
 
            her work injury.  In Dr. Carlson's deposition he notes that:
 
            
 
                 Q  I want to go back to Claimant's Exhibit l, the 
 
                    thermogram, and ask you this question.  And I 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                    want you, of course, to draw from your 
 
                    experience and your training professionally, 
 
                    and I also want you to draw from your 
 
                    examinations of Linda and your treatments of 
 
                    Linda as well as from the consultation reports 
 
                    that you have received from Doctor Gutnik and 
 
                    from Doctor Cho and from Doctor Dickinson, and 
 
                    from all the medical records available to you.  
 
                    And I want to ask you if it's possible in your 
 
                    opinion that this woman's reflex sympathetic 
 
                    dystrophy was caused by her carpal tunnel 
 
                    syndrome?
 
            
 
                 A  Yes.
 
            
 
                 Q  Is that your opinion?
 
            
 
                 A  It is.
 
            
 
            (Ex. C, p. 18, l. 18 - p. 19, l. 6)
 
            
 
                 Dr. Carlson has opined that claimant has a functional 
 
            impairment of 39 percent.  He has broken the rating down to 
 
            six percent on the left, six percent to the right because of 
 
            carpal tunnel syndrome and the rest attributable to the 
 
            right upper extremity.  His opinion is accorded more weight 
 
            than the 12 percent body as a whole impairment rating that 
 
            was provided by Dr. Weber.  Dr. Carlson tracked and treated 
 
            claimant for over 12 months.  He saw claimant on numerous 
 
            occasions.  Dr. Weber, on the other hand, only saw claimant 
 
            on one occasion and that was for the express purpose of 
 
            making an evaluation.  Dr. Weber did not treat claimant.
 
            
 
                 Therefore, the opinion of Dr. Carlson is deemed more 
 
            persuasive than the opinion of Dr. Weber.
 
            
 
                 Using the conversion charts of the AMA Guides to the 
 
            Evaluation of Permanent Impairment, the undersigned 
 
            determines that claimant's permanent partial disability is 
 
            calculated as follows:
 
            
 
                 Left
 
                 Body As Whole = Left Upper extremity   hand
 
                 6%            = 10%                  = 11%
 
                 
 
                 Right
 
                 BAW
 
                 33%
 
            
 
                 6% = Carpal tunnel  10%                 11%
 
                        syndrome       UE
 
                27% = RSD            46%
 
                                     56UE =
 
            
 
                                          Right          33% BAW
 
                                          Left            6%
 
                          Combined Values Chart          37%
 
                          p. 246 AMA Guides
 
            
 
                 .37 x 500 weeks = 185 weeks of permanent partial 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            disability benefits at the stipulated rate of $191.86.
 
            
 
                 Claimant argues she is an "odd-lot employee."  Whether 
 
            section 85.34(2)(s) allows the issue of odd-lot to be raised 
 
            does not need to be addressed in this case since claimant 
 
            has not shown she is an odd-lot employee under Guyton v. 
 
            Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985), in any 
 
            event.
 
            
 
                 In Guyton, the Iowa court formally adopted the "odd-lot 
 
            doctrine."  Under that doctrine a worker becomes an odd-lot 
 
            employee when an injury makes the worker incapable of 
 
            obtaining employment in any well-known branch of the labor 
 
            market.  An odd-lot worker is thus totally disabled if the 
 
            only services the worker can perform are "so limited in 
 
            quality, dependability, or quantity that a reasonably stable 
 
            market for them does not exist."  Guyton, 373 N.W.2d at 105.
 
            
 
                 The burden of persuasion on the issue of industrial 
 
            disability always remains with the worker.  When a worker 
 
            makes a prima facie case of total disability by producing 
 
            substantial evidence that the worker is not employable in 
 
            the competitive labor market, the burden to produce evidence 
 
            of suitable employment shifts to the employer, however.  If 
 
            the employer fails to produce such evidence and if the trier 
 
            of fact finds the worker does fall in the odd-lot category, 
 
            the worker is entitled to a finding of total disability.  
 
            Guyton, 373 N.W.2d at 106.  Even under the odd-lot 
 
            doctrine, the trier of fact is free to determine the weight 
 
            and credibility of evidence in determining whether the 
 
            worker's burden of persuasion has been carried, and only in 
 
            an exceptional case would evidence be sufficiently strong as 
 
            to compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.
 
            
 
                 Here, there was potential one handed work available to 
 
            claimant, but she, on her own, refused to participate in any 
 
            discussions regarding working in the Orange City plant.  
 
            Defendants exhibited a good faith effort to put claimant 
 
            back to work, but she did not want to drive to any plant but 
 
            the Rock Rapids one.  Claimant has not shown she is an 
 
            odd-lot employee.
 
            
 
                 The last issue before this division involves healing 
 
            period benefits.  Section 85.34(1) provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) the worker 
 
            has returned to work; (2) the worker is medically capable of 
 
            returning to substantially similar employment; or (3) the 
 
            worker has achieved maximum medical recovery.  The healing 
 
            period can be considered the period during which there is a 
 
            reasonable expectation of improvement of the disabling 
 
            condition.  See Armstrong Tire & Rubber Co. v. Kubli, 312 
 
            N.W.2d 60 (Iowa App. 1981).  Healing period benefits can be 
 
            interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 405 
 
            (Iowa 1986).
 
            
 
                 Again, the testimony of a treating physician is 
 
            accorded greater weight by the undersigned.  As of February 
 
            19, 1991, claimant had reached maximum medical improvement 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            per claimant's Exhibit A, page 49.  This is the date on 
 
            which claimant's physical rehabilitation had ended.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant one hundred 
 
            eighty-five (185) weeks of permanent partial disability 
 
            benefits at the stipulated rate of one hundred ninety-one 
 
            and 86/l00 dollars ($191.86) per week commencing on February 
 
            20, 1991.
 
            
 
                 Defendants shall also pay unto claimant fifty-four 
 
            point eight-five-seven (54.857) weeks of healing period 
 
            benefits at the stipulated rate of one hundred ninety-one 
 
            and 86/l00 dollars ($191.86) per week.
 
            
 
                 Accrued benefits shall be paid in a lump sum with 
 
            interest per section 85.30, Iowa Code as amended.
 
            
 
                 Defendants shall take credit for benefits previously 
 
            paid claimant.
 
            
 
                 Costs of the action shall be assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael Chozen
 
            Attorney at Law
 
            832 Lake St
 
            Spirit Lake  IA  51360
 
            
 
            Mr. Frank T. Harrison
 
            Attorney at Law
 
            Terrace Center  STE 111
 
            2700 Grand Ave
 
            Des Moines  IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1803
 
            Filed February 17, 1992
 
            MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LINDA HIERONIMUS,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 940987
 
            K PRODUCTS, INC.,             :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            GENERAL CASUALTY COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            Claimant sustained a simultaneous bilateral carpal tunnel 
 
            injury.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         STEVEN SZIBER,   
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                 File No. 940999
 
         HEATING & COOLING SUPPLY,       
 
         CO., INC.,       
 
                                                  A P P E A L
 
              Employer,   
 
                                                 D E C I S I O N
 
         and         
 
                     
 
         AMERICAN MANUFACTURERS MUTUAL,  
 
                     
 
              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 
 
         January 8, 1992 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of April, 1993.
 
         
 
         
 
         
 
         
 
                                  ________________________________
 
                                          BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Arvid D. Oliver
 
         Attorney at Law
 
         2635 Hubbell Ave.
 
         Des Moines, Iowa 50317
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         P.O. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
 
            
 
 
 
                 
 
 
 
                                              5-1803
 
                                              Filed April 29, 1993
 
                                              BYRON K. ORTON
 
                 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                     
 
            STEVEN SZIBER,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                              File No. 940999
 
            HEATING & COOLING SUPPLY,       
 
            CO., INC.,       
 
                                  A P P E A L
 
                 Employer,   
 
                                D E C I S I O N
 
            and         
 
                        
 
            AMERICAN MANUFACTURERS MUTUAL,  
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
          
 
            
 
            5-1803
 
            
 
            Causal connection and extent of disability, claimant awarded 
 
            30 percent permanent partial disability.  The award was 
 
            lower due to lack of motivation by the claimant.  
 
            Nonprecedential.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1803
 
                                              Filed April 29, 1993
 
                                              BYRON K. ORTON
 
                 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            STEVEN SZIBER,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 940999
 
            HEATING & COOLING SUPPLY,       
 
            CO., INC.,       
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            AMERICAN MANUFACTURERS MUTUAL,  
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            5-1803
 
            
 
            Causal connection and extent of disability, claimant awarded 
 
            30 percent permanent partial disability.  Nonprecedential.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                                 51802 1803.1 51803
 
                                                 Filed August 3, 1992
 
                                                 Jean M. Ingrassia
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            KEITH HARRIS,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 941007
 
            GLENWOOD STATE HOSPITAL  
 
            SCHOOL,   
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            STATE OF IOWA, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            51802
 
            Claimant found entitled to intermittent healing period 
 
            benefits.  A healing period may be interrupted by a return 
 
            to work.  Riesselmann v. Carroll Health Center, III Iowa 
 
            Industrial Commissioner Report 209 (App. Dec. 1982).
 
            
 
            1803.1
 
            Claimant sustained a partial rotator cuff tear requiring 
 
            surgery on February 17, 1990.  A subsequent arthrogram taken 
 
            on June 4, 1990, revealed a complete tear of the rotator 
 
            cuff and claimant underwent a second surgery on June 11, 
 
            1990.
 
            The agency has typically compensated shoulder injuries 
 
            industrially on the basis that such injuries involve 
 
            disability to the body as a whole.  Streeter v. Iowa Meat 
 
            Processing Co., file number 730461 and 809945 (App. Dec. 
 
            March 31, 1989).
 
            
 
            51803
 
            Based on all the factors of industrial disability, it is 
 
            determined that claimant sustained a 45 percent industrial 
 
            disability to the body as a whole and it entitled to 225 
 
            weeks of permanent partial disability benefits.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DONALD HILL,                  :
 
                                          :
 
                 Claimant,                :      File No. 941030
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            OSCAR MAYER,                  :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Donald 
 
            Hill against Oscar Mayer Foods Corporation based upon an 
 
            injury that occurred on October 23, 1989.  The disputed 
 
            issue in the case is the extent of permanent disability that 
 
            was proximately caused by that injury.  
 
            
 
                 The case was heard at Davenport, Iowa, on April 20, 
 
            1992.  The evidence consists of testimony from Donald Hill, 
 
            Dale Bird, Vicki DeMarlie, Jason Smith, Dale Potter, and 
 
            Carin Kaiser.  The record also contains claimant's exhibits 
 
            1 through 35 and defendant's exhibits C and D.
 
            
 
                                 FINDINGS OF FACTS
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made:
 
            
 
                 Donald Hill is a 60-year-old man whose formal education 
 
            is limited to the seventh grade.  He has a quite varied work 
 
            history, essentially all of which involves physical labor.  
 
            He has substantial experience welding, truck driving, 
 
            farming, and operating a county road grader.  Since 1968 
 
            Oscar Mayer has been Donald's exclusive employer.  
 
            
 
                 Most of Donald's years with Oscar Mayer were spent 
 
            boning hams.  Approximately four years ago he moved to the 
 
            curing department where he operated machines involved in the 
 
            curing and lunch meat production processes.  
 
            
 
                 On October 23, 1989, Donald injured his right shoulder 
 
            while attempting to move one of the machines in the 
 
            department.  He was treated conservatively with light duty 
 
            without success.  Eventually, a torn rotator cuff was 
 
            diagnosed and it was surgically repaired on February 14, 
 
            1990, by orthopedic surgeon John M. Hoffman, M.D.  
 
            
 
                 After recuperating from the surgery, Donald was allowed 
 
            to return to light work effective July 26, 1990.  At first, 
 
            he performed only light janitorial duties.  On or about 
 
            October 18, 1990, he was released to resume full-duty work 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            and resumed operating machines in his department.  He had 
 
            some assistance performing some of the functions.  
 
            Throughout the return to work process, he continued to have 
 
            problems with his right shoulder.  He experienced weakness 
 
            and inability to work with his right hand overhead.  At the 
 
            end of the first week of resumption of full duty, claimant 
 
            telephoned Dr. Hoffman, related his symptoms and was told to 
 
            keep working.  By the middle of the second week he was 
 
            experiencing flu-like symptoms and a headache.  He did not 
 
            work on Thursday of that week, but did work Friday of the 
 
            second week.  On Friday, November 2, 1990, the end of the 
 
            second week of full-duty work, he went to the hospital 
 
            emergency room and was diagnosed as having suffered a 
 
            stroke.  
 
            
 
                 Donald's stroke has affected the right side of his 
 
            body, including his right upper extremity.  He stated that 
 
            it is weak as a result of the stroke.  Claimant agreed that 
 
            the stroke keeps him from working and that he would be 
 
            working if it had not occurred.  Claimant also stated that 
 
            he is right handed and he is unable to use his right 
 
            shoulder to earn a living.  
 
            
 
                 Donald believes that something occurred during the 
 
            shoulder repair surgery which caused him to have the stroke.  
 
            He testified of having a slight headache following the 
 
            surgery.  There is no medical opinion evidence in the record 
 
            of this case which causally connects the stroke to the right 
 
            shoulder injury, reparative surgery or anything else 
 
            connected with the shoulder injury.  Robert J. Chesser, 
 
            M.D., has issued a report in which he indicated that 
 
            claimant's stroke, referred to as a "CVA," commonly used as 
 
            an abbreviation for cardio vascular accident, was not 
 
            related to the shoulder injury or surgery (claimant's 
 
            exhibit 4).  While there is, of course, some possibility 
 
            that the shoulder injury or surgical procedure may have in 
 
            some way precipitated the stroke, the greater weight of the 
 
            evidence in this case does not show that possibility to be a 
 
            probability.  The evidence shows it to be more likely that 
 
            the shoulder injury and surgery did not cause or precipitate 
 
            the stroke.
 
            
 
                 Donald is now clearly disabled from working at Oscar 
 
            Mayer as a result of the stroke and continuing small strokes 
 
            which afflict him.  He had been released to full duty only 
 
            two weeks before the stroke was diagnosed.  That is a 
 
            relatively limited amount of time in which to make a valid 
 
            assessment concerning whether or not he would have been able 
 
            to continue working indefinitely at his job.  The fact that 
 
            he was able to do so, however, and even work some overtime, 
 
            is an indication that he could have successfully continued 
 
            to perform his job.  He might have needed some assistance 
 
            with some of the activities, but there is nothing in the 
 
            record to indicate that any need for assistance would have 
 
            caused him to be removed from the job.  According to Dale 
 
            Potter, claimant's supervisor, he was not aware of claimant 
 
            requiring any assistance after resuming full work 
 
            activities.  
 
            
 
                 A torn rotator cuff, the type of injury Donald 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            sustained, quite commonly leaves a residual loss of ability 
 
            to perform overhead work with the effected arm and some 
 
            discomfort and weakness.  The description of claimant's job 
 
            at Oscar Mayer is such that it does not appear that the loss 
 
            of ability to perform any substantial amount of overhead 
 
            work with his right arm would disqualify Donald from that 
 
            job.  The greater likelihood, though it is not an absolute 
 
            certainty, is that Donald could have continued to be 
 
            employed by Oscar Mayer, without any significant reduction 
 
            in earnings, in his same job or some other job which his 
 
            seniority would permit him to obtain.  The greater 
 
            likelihood is that Donald would have, but for the stroke, 
 
            continued to be employed by Oscar Mayer until such time as 
 
            he chose to retire or Oscar Mayer ceased to operate the 
 
            plant where he was employed.  
 
            
 
                 In view of claimant's age and when considered in the 
 
            light of his proximity to the range of ages at which 
 
            individuals in our society typically retire, the likelihood 
 
            of a plant closing forcing him out of a job with Oscar Mayer 
 
            is much less then it would be if he were a much younger 
 
            worker.  In making this determination it is recognized that 
 
            the future is always uncertain.  Most individuals change 
 
            employers a number of times through out their working life.  
 
            The only thing which is certain is that there is a 
 
            significant degree of uncertainty with regard to future 
 
            employment relationships.  This case presents the added 
 
            uncertainty of whether claimant would have been physically 
 
            capable of performing his job indefinitely.  As previously 
 
            indicated, two weeks is not a sufficient amount of time upon 
 
            which to make a highly reliable prediction for the future.
 
            
 
                 It would be expected that if Donald Hill, without 
 
            having experienced the stroke, but with impaired use of his 
 
            right shoulder, were to be forced to seek employment from 
 
            some other employer that he would experience a very 
 
            substantial reduction in his rate of actual earnings.  The 
 
            likelihood of such event occurring, however, is quite small.  
 
            It is, therefore, determined that Donald has experienced a 
 
            10 percent reduction in his earning capacity as a result of 
 
            the October 23, 1989, shoulder injury.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 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 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 As previously indicated, claimant has not proven by a 
 
            preponderance of the evidence that his strokes and the 
 
            disability resulting from them, were in any manner 
 
            proximately caused by the shoulder injury or surgery 
 
            performed to repair it.  The disability for which this 
 
            employer is liable is limited to that caused by the shoulder 
 
            injury.  
 
            
 
                 The parties stipulated that the disability was to be 
 
            evaluated industrially, rather than as a scheduled injury to 
 
            the arm.  The record clearly supports that stipulation as 
 
            shown by the report of operation showing the points at which 
 
            the anatomical injury existed and the surgical procedures 
 
            which were performed (cl. ex. 2).  
 
            
 
                 Since claimant has an impairment to the body as a 
 
            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
            (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 
 
            N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218 (1979); 2 Larson Workmen's 
 
            Compensation Law, sections 57.21 and 57.31.
 
            
 
                 The fact that Donald Hill did not experience any actual 
 
            reduction in earnings as a result of the injury does not 
 
            conclusively negate the existence of any permanent 
 
            disability having resulted from the injury.  Dr. Hoffman 
 
            found claimant to have a 10 percent permanent impairment of 
 
            his right upper extremity (cl. ex. 1, p. 3).  Evaluating 
 
            physician William D. Reinwein, M.D., found claimant as 
 
            having a 15 percent permanent impairment of his right upper 
 
            extremity (cl. ex. 6).  The fact that he is physically 
 
            impaired is a factor which offsets, to some degree, the 
 
            impact of the lack of any reduction in actual earnings.  
 
            There are clearly many employment functions which his 
 
            shoulder impairment will not allow him to perform that he 
 
            could have performed absent the shoulder injury.  When all 
 
            the material factors of industrial disability are 
 
            considered, it is determined that claimant has experienced a 
 
            10 percent reduction in his earning capacity and a 10 
 
            percent industrial disability within the meaning of Iowa 
 
            Code section 85.34(2)(u).  This entitles him to receive 50 
 
            weeks of compensation for permanent partial disability.  In 
 
            the prehearing report it was stipulated that defendant had 
 
            paid 23 5/7 weeks of permanent partial disability 
 
            compensation voluntarily prior to the hearing.  They are, 
 
            therefore, required to pay an additional 26 2/7 weeks of 
 
            compensation for permanent partial disability as a result of 
 
            this decision.  
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that Oscar Mayer Foods 
 
            Corporation pay Donald Hill fifty (50) weeks of compensation 
 
            for permanent partial disability payable commencing as 
 
            stipulated on the 30th day of July 1990.  Defendant is given 
 
            full credit for the twenty-three and five-sevenths (23 5/7) 
 
            weeks previously paid and shall pay the remaining twenty-six 
 
            and two-sevenths (26 2/7) weeks, all of which is accrued, in 
 
            a lump sum together with interest pursuant to section 85.30 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            of the Code computed from the date each payment came due 
 
            until the date it is actually paid.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendant pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendant file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Burton H. Fagan
 
            Attorney at Law
 
            2535 Tech Dr. STE 206
 
            Bettendorf, Iowa  52722
 
            
 
            Mr. Richard McMahon
 
            Ms. Vicki Seeck
 
            Attorneys at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd ST
 
            Davenport, Iowa  52801
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                                51108.50 1402.40
 
                                                Filed October 5, 1992
 
                                                Michael G. Trier
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
            DONALD HILL,   
 
                      
 
                 Claimant,                     File No. 941030
 
                      
 
            vs.       
 
                                           A R B I T R A T I O N
 
            OSCAR MAYER,   
 
                                              D E C I S I O N
 
                 Employer, 
 
                 Self-Insured,        
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            51108.50
 
            Claimant failed to introduce sufficient evidence to show 
 
            that the stroke which he suffered was in any way causally 
 
            connected to his work injury.
 
            
 
            1402.40
 
            Even though there was no loss of actual earnings, the fact 
 
            that claimant's physical capacity had been impaired by the 
 
            injury was sufficient to support a 10 percent permanent 
 
            partial disability award.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
PATRICIA JEANNE PUCHER, 
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                     File No. 941181
 
THE BRITWILL COMPANY,   
 
                                  A R B I T R A T I O N
 
     Employer, 
 
                                     D E C I S I O N
 
and       
 
          
 
WAUSAU INSURANCE COMPANIES,  
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
                      STATEMENT OF THE CASE
 
 
 
Patricia J. Pucher, claimant, has filed a petition in arbitration and 
 
seeks workers' compensation benefits from The Britwill Company, 
 
defendant employer, and Wausau Insurance Companies, defendant insurance 
 
carrier.  The hearing was held before the undersigned on January 12, 
 
1995 at Sioux City, Iowa.  The evidence in this case consists of the 
 
testimony of claimant, Sylvia Hess, Hugh Irwin; joint exhibits 1 
 
through 42 and defendants exhibit A.  The case was considered fully 
 
submitted at the close of the hearing.
 
 
 
                             ISSUES
 
 
 
The parties presented the following issues for resolution:
 
 
 
1.  Whether claimant's physical injury is causally connected to her 
 
mental disability;
 
 
 
2.  Whether claimant is entitled to healing period benefits;
 
 
 
3.  Whether claimant is entitled to permanent partial disability 
 
benefits, and if so, the appropriate commencement date for benefits;
 
 
 
4.  Whether claimant is entitled to payment of certain medical 
 
expenses;
 
 
 
5.  Whether claimant is entitled to alternate medical care under Iowa 
 
Code section 85.27;
 
 
 
6.  Whether claimant is entitled to benefits under the odd-lot 
 
doctrine; and,
 
 
 
7.  Whether claimant is entitled to penalty benefits pursuant to Iowa 
 
Code 86.13.
 
 
 
                           FINDINGS OF FACT
 
 
 
The undersigned deputy industrial commissioner, having reviewed all of 
 
the evidence received, finds the following facts:
 
 
 
The claimant was single and 59 years of age on the day of the hearing.  
 
She graduated from high school in 1953.  She obtained a B.S. degree 
 
from Ursuline College in 1957, and thereafter completed a dietetic 
 
internship from 1957 through 1958 at Charity Hospital in New Orleans, 
 
Louisiana.  (Joint Exhibit 29, page 1)       
 
 
 
She then worked as a floor dietitian at Charity Hospital from 1958 
 
through 1959.  From 1960 through 1973 she worked as the supervising 
 
dietitian for ARA Services in Philadelphia, Pennsylvania.
 
 
 
For a few months in 1973 she worked as the Director of Food Services at 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
Des Moines General Hospital in Des Moines, Iowa.
 
 
 
From late 1973 through mid 1977 she worked as a dietary consultant and 
 
program planner for the Iowa Commission on Aging.
 
 
 
From July 1977 through October 1983 she worked as the program director 
 
for the Nebraska Indian Inter-Tribal Development Corporation.
 
 
 
From October of 1983 through April of 1986 claimant was self-employed 
 
as an independent agent for a life insurance company and as a beauty 
 
consultant for Mary Kay Cosmetics.
 
 
 
In April of 1986 she became the dietary Service Manager for Indian 
 
Hills Care Center.  (Jt. Ex. 29, pp. 1, 2)  Her job responsibilities 
 
included developing policies and procedures, menu writing, training and 
 
administration, as well as individual dietary meetings with residents.  
 
There were roughly 200 residents at the care facility when she began 
 
her employment.  She began at a salary of $13,500 per year and when she 
 
left the company in 1987 she was making $15,000 per year.  
 
 
 
In 1987 she began with Beverly Enterprises as a supervising dietician.  
 
She traveled throughout the western part of the state insuring that the 
 
nursing homes were being run in compliance with state and federal 
 
regulations.  She would review menu plans and individual residents 
 
charts.  She performed extensive calculations for the dietary needs of 
 
each resident and prescribed dietary supplements.  She began at $25,000 
 
per year.
 
 
 
Sometime between 1987 and 1989 Beverly Enterprises sold some of their 
 
Iowa nursing homes to The Britwill Corporation.  After the sale 
 
claimant worked for the Britwell Corporation and continued performing 
 
the same duties she had performed when the nursing homes were operated 
 
by Beverly Enterprises.  
 
 
 
On Monday, December 18, 1989, claimant was driving a company car from 
 
the nursing home in Dunlap, Iowa to go to the nursing home in Odebolt.  
 
It had snowed before she left and the roads were covered with snow and 
 
ice.  Claimant slid through an icy intersection and broadsided a pickup 
 
truck.  She said that her car bounced off of the pickup truck three 
 
times, before both vehicles went off the road.  A witness called the 
 
police and invited claimant into her home to use her telephone.  
 
 
 
Claimant called the Britwill office in Des Moines to tell them 
 
of the accident and called the nursing home in Odebolt to tell 
 
them she wouldn't be coming.  She then called a friend to bring 
 
down her own car from her Sioux City home.  She returned home.  
 
She did not seek medical treatment that day or that evening.  
 
When she returned home an employee of the Odebolt nursing home 
 
called her and asked if she was going to come to the nursing home. 
 
 
 
 The next day she traveled to the nursing home in Odebolt, to another 
 
one in Stanford and then on to Des Moines for a meeting.  She said 
 
that she was experiencing neck, back and ankle pain the morning
 
after the accident.  (Jt. Ex. 41, p. 36)  Claimant returned to 
 
Sioux City after the meeting in Des Moines ended.
 
 
 
On the Saturday after the accident, December 23, 1989, claimant called 
 
some friends to take her to the emergency room for treatment.  She was 
 
taken to the Marion Health Center where she was seen by S.E. Vlach, 
 
M.D.  An examination revealed tenderness in the C6-7 cervical spine 
 
area and moderate tenderness in most of the thoracic spine.  The lumbar 
 
and lower lumbar spine was minimally to moderately tender.  Straight 
 
leg raising test was negative bilaterally.  No symptoms of sciatica 
 
were present.  Her left ankle was tender and swollen.  X-rays of 
 
the complete spine showed no signs of fracture or dislocation, 
 
although there were degenerative changes noted in the cervical 
 
spine and lumbar spine.  An x_ray of the left ankle was negative.  
 
Dr. Vlach's impression was cervical strain with mild upper thoracic 
 
and lower lumbar strain.  Degenerative changes were noted on the x-ray.  
 
Claimant's left ankle was sprained.  Claimant was given Naprosyn and 
 
a soft neck collar.  She was to return if there was not significant
 
improvement in her symptoms within the next couple of days.  
 
 (Jt. Ex. 2, pp. 3-8)
 
 
 
Claimant continued to work.  On January 24, 1990, claimant visited Dr. 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
Horst G. Blume for treatment.  His impression was advanced thoracic 
 
spondylolysis, spondyloarthrosis, with irritation of the nerve 
 
structure of the facet joints in the upper and mid thoracic spine area, 
 
and advanced disc degeneration at L5-S1.  He recommended a CT scan and 
 
a myelogram.  She was given Tylenol #3 and Flexeril for pain control. 
 
(Jt. Ex. 5, pp. 3, 4)
 
 
 
Claimant discovered that Dr. Blume was not an authorized physician and 
 
she was not allowed any further treatment with him.  She was instructed 
 
to see Alan Pechack, M.D., an orthopedic surgeon, for further 
 
treatment.
 
 
 
On February 26, 1990, claimant saw Dr. Pechacek.  He noted that 
 
claimant had been treated by Dr. Blume off and on over the years for 
 
long-standing back pain and problems.  Her current back pain was in the 
 
right sacral region and the gluteal area.  She did not complain of any 
 
radiation into the right hip or leg other than some tightness down in 
 
the thigh to the knee.  On the left side she was experiencing night 
 
cramps that pull her foot down into plantar flexion and supination.  
 
She had no cramps during the day.  Subjectively, she complained of 
 
her left lower leg and foot feeling numb.  She did not complain of 
 
back or radiating hip and leg pain on the left.  (Jt. Ex. 6, pp. 1, 2)
 
 
 
His impression was low back pain with degenerative disc disease.  No 
 
findings supported sciatica or radiculopathy.  He recommended that she 
 
take some time off work to rest her back and avoid driving and 
 
traveling that irritated her back.  He prescribed physical therapy 
 
three times per week with heat, massage, ultrasound and some low back 
 
flexion exercises.  She was given a refill prescription for Tylenol #3 
 
and Flexeril.  (Jt. Ex. 6, p. 3)
 
 
 
Claimant underwent physical therapy from March 5, 1990 through March 
 
19, 1990 with little or no change in her symptoms.  Further physical 
 
therapy was not recommended.  (Jt. Ex. 7)
 
 
 
On March 19, 1990, claimant returned to Dr. Pechacek.  He noted that 
 
she had radiating pains from the right lower back through the buttock 
 
down into the thigh and lower leg toward the foot but no numbness or 
 
tingling or paresthesias.  She stated her left leg felt numb and like a 
 
dead weight but she did not have any pain on the left.  She has some 
 
sciatica but with mixed findings.  He recommended an MRI of the lumbar 
 
spine.  (Jt. Ex. 6, p. 4)
 
 
 
An MRI done on March 26, 1990 revealed no evidence of intradural mass 
 
lesion, disc herniation or spinal stenosis.  Mild degenerative changes 
 
of the apophyseal joints bilaterally at L3_4 and mild right S1 
 
vertebral body osseous ridging posteriorly causing minimal narrowing of 
 
the intervertebral foramina without nerve compression was observed.  
 
(Jt. Ex. 8)  On March 29, 1990, Dr. Pechacek instructed claimant to 
 
remain at home, not to return to work. (Jt. Ex. 6, p. 5)
 
 
 
On April 2, 1990, Dr. Pechacek noted that claimant's symptoms were 
 
confusing in that she had one set of symptoms on the right side and 
 
another set of symptoms on the left side.  He recommended an epidural 
 
flood at the L5_S1 level to see if that would alleviate her pain.  She 
 
was to remain off work.  (Jt. Ex. 6, pp. 5, 6)
 
 
 
On April 3, 1990, claimant underwent an epidural flood injection at 
 
L5_S1 performed by Dr. Monk.  (Jt. Ex. 9)
 
 
 
On April 16, 1990, Dr. Pechacek noted that the epidural flood had 
 
appeared to help somewhat, but he wanted to wait longer to judge the 
 
effect.  Claimant had been in the hospital with pneumonia which 
 
provided her with a lot of bed rest and inactivity which seemed to 
 
improve her pain symptoms.  In general, she was having less discomfort 
 
in her lower back, but still was having tingling in her left leg and 
 
discomfort in the right buttock and thigh. (Jt. Ex. 6, p. 6)
 
 
 
At her May 4, 1990 appointment Dr. Pechacek noted that she was slowly 
 
improving and wanted to try and return to work two days per week.  She 
 
was given another prescription for Tylenol #3 and Flexeril.  (Jt. Ex. 
 
6, p. 8)  Claimant was released to return to work two days per week as 
 
of May 9, 1990.  (Jt. Ex. 6, p. 7)
 
 
 
On July 2, 1990, Dr. Pechacek notes that claimant "states that she's 
 
been very depressed off and on because of all this."  (Jt. Ex. 6, p. 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
10)  Claimant was continuing to work two days per week.  On July 9, 
 
1990, claimant again underwent an epidural flood injection in an 
 
attempt to relieve some of her continuing symptoms.  (Jt. Ex. 10)
 
 
 
On July 16, 1990, Dr. Pechacek noted that claimant had a better result 
 
from the most recent epidural flood.  She was able to do a reasonable 
 
amount of walking but prolonged sitting or standing still bothered her. 
 
 
 
 He did not believe she should work any more than the two days per week 
 
she had been working.  (Jt. Ex. 6, p. 11)  Dr. Pechacek referred 
 
claimant to Quentin J. Durward, M.D., for additional evaluation.  (Jt. 
 
Ex. 6, p. 12)
 
 
 
Dr. Durward's notes of August 28, 1990 indicate that claimant 
 
recognizes she has become extremely depressed.  She was somewhat weepy 
 
during the interview.  (Jt. Ex. 11, p. 2)  He did not believe her 
 
complaints of pain represented a true sciatica condition.  He 
 
recommended a myelogram and an EMG study of her leg.  He started her on 
 
Elavil for her depression which might also help her pain.  He believed 
 
that she was dependent on Tylenol with Codeine and advised her to wean 
 
herself off that as soon as possible.  He thought she may need long
 
-term psychiatric care if the depression became too great a factor.  
 
(Jt. Ex. 11, pp. 2, 3, 4)
 
 
 
Claimant underwent a lumbar myelogram on August 30, 1990 where the 
 
radiologist found no focal disc herniation of the lumbar spine was 
 
demonstrated.  Degenerative changes of the L5_S1 disc were evidenced 
 
along with mild circumferential bulging of the L3_4 disc. (Jt. Ex. 12, 
 
p. 1-4)
 
 
 
EMG studies of her legs were normal.  Dr. Pechacek wanted her to 
 
continue to treat with Dr. Durward.  (Jt. Ex. 6, 14)
 
 
 
On November 6, 1990, claimant met with Dr. Durward to go over her test 
 
results.  His notes indicate that the myelogram showed mild bulging of 
 
the L3_L4 disc and some degenerative changes at L5_S1 but no 
 
significant root irritation or disc rupture.  The CSF protein was 
 
normal.  EMG nerve conduction studies of her legs were normal.  Donald 
 
W. Ayres, M.D., the physician who performed the EMG studies, thought 
 
that claimant might have multiple sclerosis and put her on Lioresal to 
 
control night muscle spasms.  The TENS unit was helping her with 
 
the pain, but she was still using Tylenol #3 at night.  Dr. Pechacek  
 
refused to renew her prescription for Tylenol #3 and Dr. Durward 
 
believed her to be dependent upon it.  
 
 
 
The Elavil was helping her sleep better and helping her depression.  He 
 
did not believe surgery would help her chronic pain.  He felt her 
 
chronic pain was related to the automobile accident.  He did not feel 
 
he needed to see claimant on a routine basis.  Dr. Durward wanted 
 
claimant's family physician to continue to prescribe the Elavil 
 
for her, but her family physician wanted a psychiatrist to give 
 
her further refills of the drug.  (Jt. Ex. 11, p. 5)
 
 
 
On November 13, 1990, Dr. Ayres determined that claimant did not have 
 
multiple sclerosis but was suffering from B-12 deficiency which could 
 
account for all of her symptoms and signs.  She was scheduled for B-12 
 
replacement therapy.  (Jt. Ex. 13, p. 1)
 
 
 
In a letter dated November 26, 1990, claimant was notified that her 
 
employment would terminate as of December 31, 1990 as a result of 
 
changes in the companies organizational structure.  (Jt. Ex. 15)  When 
 
her employment terminated claimant was being paid $28,000 per year.  
 
Claimant's was not the only position terminated.  Another dietary 
 
supervisory was also terminated.  The evidence does not support a 
 
finding that claimant was terminated because she sustained a 
 
work-related injury.
 
 
 
Claimant began treatment with Leonel H. Herrera, M.D., at the Back Care 
 
center on November 23, 1990.  She was referred to reduce or eliminate 
 
her symptoms of low pain to the left of the spine, described as a 
 
burning pain, occasional right buttock pain radiating to the back of 
 
her thigh and knee and left buttock pain radiating to the thigh and 
 
leg, occasionally to the ankle.  (Jt. Ex. 14, p. 2)
 
 
 
On November 27, 1990, claimant returned to Dr. Pechacek who noted that 
 
claimant really didn't think she could continue to work at that time.  
 

 
 
 
 
 
 
 
 
 
 
 
 
 
He recommended that she go off work completely.  She was given  another 
 
prescription for Tylenol #3 with two refills.  (Jt. Ex. 6, p. 15)
 
 
 
On December 27, 1990, Dr. Ayres noted that claimant has had some 
 
significant improvement in the nocturnal myoclonus as well as the lower 
 
extremity spasm with the B_12 replacement therapy.  He also opined that 
 
claimant was suffering from significant situational depression 
 
associated with recent loss of job.  She was advised to follow up with 
 
a previous psychiatric referral for further evaluation of her 
 
depression.  (Jt. Ex. 13, p. 3)
 
 
 
Claimant began seeing Dale R. Wassmuth, M.D., a psychiatrist on January 
 
10, 1991.  Dr. Wassmuth's complete notes, including his bills for 
 
treatment, can be found at joint exhibit 16, pages 3 through 45.  Dr. 
 
Wassmuth was still treating claimant on the day of the hearing.  
 
 
 
On February 7, 1991, Dr. Ayres noted that claimant was discharged from 
 
the back care program because she was losing ground.  She was placed on 
 
an exercise program which involves scheduled walking.  (Jt. Ex. 13, p. 
 
4)  Also on February 7, 1990, Dr. Ayres wrote to the insurance company 
 
and opined that claimant is currently being seen by a psychiatrist for 
 
depression. "The emotional stress of being involved in the accident and 
 
losing her job are playing into this.  Additionally, however, 
 
neuropsychiatric abnormalities are associated with B-12 deficiency 
 
as well and certainly this further complicates the picture."  
 
(Jt. Ex. 13, p. 6)
 
 
 
On June 11, 1991, Dr. Pechacek wrote to the insurance company and 
 
stated that based on his last office evaluation her back condition had 
 
stabilized.  He did not anticipate any significant change in her 
 
condition.  (Jt. Ex. 6, p. 19)  Since Dr. Pechacek was closing his 
 
practice to move to another state, claimant's care was switched to John 
 
Kuhnlein, D.O.
 
 
 
On June 19, 1991, defendant insurance company notified claimant by 
 
letter that based on Dr. Pechacek's opinion that claimant's condition 
 
had stabilized and he did not anticipate any significant change in her 
 
condition, they were converting her benefits over to permanent partial 
 
disability benefits as of June 11, 1991.  They estimated that her 
 
permanent disability would be 10 percent to the body as a whole, thus, 
 
they were going to pay her for 50 weeks of permanency benefits.  The 
 
letter also indicated that claimant was still following up with 
 
Dr. Wassmuth and she was to by seen by Dr. Kuhnlein on July 11, 
 
1991 for care since Dr. Pechacek was closing his practice.  They 
 
also indicated that further consideration for permanent disability 
 
benefits will be given once they received the additional medical 
 
reports of Dr. Kuhnlein.  (Jt. Ex. 18)
 
 
 
Dr. Ayres opined that as of July 10, 1991, her major dysfunction is the 
 
depression.  No specific follow-up was arranged by Dr. Ayres after his 
 
evaluation of July 10, 1991.  (Jt. Ex. 13, p. 8)
 
 
 
On July 10, 1991, Dr. Ayres wrote to claimant's family physician and 
 
stated:  "Physically she has continued to improve, although she has 
 
numerous somatic complaints.  At this point, it is likely that her 
 
depression is the major problem impeding her improvement.  It is 
 
interesting to note that B12 deficiency can be associated with 
 
neuropsychiatric abnormalities including depression."  (Jt. Ex. 13, p. 
 
9)
 
 
 
Objective testing done on July 16, 1991 clearly indicates that at that 
 
time claimant was suffering from severe depression.  (Jt. Ex. 21, p. 2)
 
On August 2, 1991, Dr. Kuhnlein recommended that claimant begin 
 
occupational and physical therapy, that she continue treating with Dr. 
 
Wassmuth, and that she continue on temporary total disability.  She was 
 
not to return to work.  (Jt. Ex. 19, p. 5)
 
 
 
Claimant was sent to Marion Health Center for physical and occupational 
 
therapy.  (Jt. Ex. 19, p. 6)  She reported to Dr. Kuhnlein that the 
 
physical therapy/ocupational work hardening has been beneficial to a 
 
certain extent.  On August 30, 1991, Dr. Kuhnlein stated that "Miss 
 
Pucher has a significant problem with her depression and in fact I am 
 
beginning to believe that this is her major barrier to recovery.  Until 
 
her depression is under a little better control I don't thing we're 
 
going to make much headway in terms of her return to work. . ."
 

 
 
 
 
 
 
 
 
 
 
 
 
 
  (Jt. Ex. 19, p. 12)
 
 
 
Claimant was assigned a vocational rehabilitation counselor, Hugh 
 
Irwin.  Mr. Irwin's qualifications are set out at defendants' exhibit 
 
A.  On September 19, 1991, Hugh Irwin, a vocational rehabilitation 
 
counselor, reported that after meeting with claimant she relayed that 
 
she was able to sit pretty good and was able to drive an automobile for 
 
up to two hours.  (Jt. Ex. 23, p. 5)  At the hearing claimant reported 
 
that sitting is her most comfortable position.  Mr. Irwin determined 
 
that based on claimant's physical restrictions she would qualify 
 
for many or all dietician positions that she has performed previously.  
 
With her college training and previous experience she should have a 
 
great number of potential job options no matter what her final 
 
physical limitation and restrictions.  (Jt. Ex. 23, p. 7)
 
 
 
On November 1, 1991, Mr. Irwin reported that claimant was upset with 
 
some of the jobs suggested by him.  For instance he thought she might 
 
be able to perform work of lighter nature like a convenience store 
 
clerk or a motel desk clerk, jobs with a minimum amount of physical 
 
activity.  He reports that claimant felt those jobs would be degrading 
 
for her to be in such a menial type position and she was concerned that 
 
someone she knew might see her working in such a menial position.  (Jt. 
 
Ex. 23, p. 12)
 
 
 
On November 15, 1991, Dr. Kuhnlein opined that claimant had reached 
 
maximum medical improvement.  She had undergone a number of 
 
conservative measures with no real response to any therapeutic 
 
modality.   (Jt. Ex. 19, p. 17)
 
 
 
In a letter dated November 15, 1991 defendant insurance company 
 
notified claimant that claimant's benefits would be switched over to 
 
permanent partial disability benefits and that the treatment with Dr. 
 
Wassmuth may no longer be authorized.  (Jt. Ex. 26)
 
 
 
On November 21, 1991, Dr. Kuhnlein determined that claimant had a 12 
 
percent functional impairment based on loss of range of motion and 
 
other disorders of the spine.  His rating was done per the AMA Guides 
 
to the Evaluation of Permanent Impairment, Third Edition.
 
 
 
On November 27, 1991, Mr. Irwin reported that claimant had expressed an 
 
interest in obtaining such jobs as a food broker, food representative 
 
for some type of group such as the Dairy Council, medical sales or some 
 
type of government administrative position like she performed with the 
 
Commission on Aging.  Claimant told him she would begin updating her 
 
resume.  (Jt. Ex. 23, p. 17)  Claimant did not update her resume, as is 
 
evidenced by joint exhibit 29.   Claimant's resume was last updated in 
 
1989.
 
 
 
On December 20, 1991, Dr. Kuhnlein wrote to Hugh Irwin, a 
 
rehabilitation counselor, and offered the following work restrictions 
 
for claimant.  She may lift 20 to 25 pounds on a very occasional basis. 
 
 She may work with promotional equipment if a wheel dolly is used.  She 
 
should do no overhead work except on a very occasional basis.  She can 
 
drive on a self-limited basis.  She may have to pace herself when 
 
driving by stopping occasionally in order to stretch and walk around.  
 
She should have a good fitting pair of shoes that provide good 
 
traction in order to prevent falls.  The vehicle she drives should 
 
have an adjustable lumbar support.  (Jt. Ex. 19, p. 21)
 
 
 
In his December 27, 1991 report Mr. Irwin identifies several specific 
 
job openings in existence for which claimant was qualified.  For 
 
example, the traveling dietician program with the WIC program, 
 
volunteer coordinator for Easter Seals Society and a part-time 
 
consulting dietician position open in Onowa, Iowa. (Jt. Ex. 23, p. 20)
 
 
 
Mr. Irwin does believe there are jobs that claimant can perform within 
 
her physical restrictions.  He does doubt that he could get claimant to 
 
interview for any of the jobs.  Claimant does not feel she can work and 
 
as Mr. Irwin pointed out if she feels she can't work, she will not be 
 
able to obtain employment.  If she felt she could work, he was 
 
confident that she could find employment within her physical 
 
restrictions.  Claimant has not attempted to obtain employment.  
 
 
 
She currently receives social security disability payments based on the 
 

 
 
 
 
 
 
 
 
 
psychiatric reviews set out in joint exhibits 36 and 37 which indicate 
 
a primary diagnosis of depression.  Claimant was awarded social 
 
security disability commencing on November 26, 1990. (Jt. Ex. 38)
 
 
 
Joint exhibit 30, page 3, is a bill for medical services rendered to 
 
claimant on December 23, 1989 at Marion Health Center.  Joint exhibit 
 
30, pages 4 through 9, outline the mileage claims of claimant.  Joint 
 
exhibit 30, page 10, outlines the cost of taxis claimant has taken to 
 
various doctor appointments.  Joint exhibit 30, pages 11 through 17, 
 
are the original receipts for prescription drugs prescribed for 
 
claimant by various medical providers.  Also on page 17 is a bill for 
 
tennis shoes for $41.99 purchased by claimant for mall walking 
 
and use at her physical and occupational therapy sessions on the 
 
recommendation of Dr. Herrera.  
 
 
 
Joint Exhibit 30, page 18, is an itemization of mileage that claimant 
 
undertook to go to the pharmacy to obtain medication prescribed by 
 
various treating physicians.  Joint exhibit 30, page 19, is a bill for 
 
laboratory tests ordered by Dr. Wassmuth in the amount of $70.30.  
 
 
 
Joint exhibit 31, page 1, is additional original receipts for 
 
prescription drugs prescribed for claimant by Dr. Wassmuth.  
 
Joint exhibit 31, pages 2 through 4 and Joint exhibit 
 
32, pages 1 through 4, are computer printouts of various prescriptions 
 
for claimant by various providers.  The pink highlighted prescriptions 
 
represent those claimant is seeking reimbursement for through this 
 
proceeding.  
 
 
 
Joint exhibit 32, page 5, and joint exhibit 33, pages 1 
 
and 2, are additional original receipts claimant for prescription drugs 
 
prescribed for claimant by Dr. Wassmuth.  Joint exhibit 34, pages 1 and 
 
2, are additional mileage claims of claimant for trips to 
 
Dr. Wassmuth and trips to the pharmacy to pick up prescription medication.
 
On March 3, 1992, defendant insurance company rescinded authorization 
 
for any further treatment of claimant by Dr. Wassmuth.  (Jt. Ex. 35, p. 
 
1)  
 
 
 
Claimant was paid healing period benefits from February 26, 1990 
 
through May 7, 1990.  She was paid temporary partial disability 
 
benefits from May 8, 1990 through November 26, 1990.  She was paid 
 
additional healing period benefits from November 27, 1990 through 
 
December 2, 1990.  She was paid for a total of 63 weeks and one day of 
 
healing period benefits and for 29 weeks of temporary total disability 
 
benefits.  She has also been paid for 60 weeks of permanent partial 
 
disability benefits based on Dr. Kuhnlein's functional impairment 
 
rating of 12 percent of the body as a whole. 
 
 (Jt. Ex. 39)
 
 
 
On August 31, 1994, the deposition of Dr. Wassmuth, claimant's treating 
 
psychiatrist, was taken.  Dr. Wassmuth was asked extensively about 
 
whether he could say with a reasonable degree of medical certainty that 
 
claimant's work injury of December 18, 1989 was causally connected to 
 
her depression.  The totality of the deposition makes clear that Dr. 
 
Wassmuth cannot and would not say that claimant's depression is 
 
causally connected to her work injury of December 18, 1989.
 
 
 
Dr. Wassmuth has been claimant's treating physician for her depression 
 
since January of 1991.  He is the most qualified to offer an opinion as 
 
to causation.  He is unable to say that her work injury is causally 
 
connected to the mental disability from which she now suffers. (Jt. Ex. 
 
42)
 
 
 
The fact that other doctors, including Dr. Ayres, noticed that claimant 
 
was depressed is not the same as concluding that her work-related 
 
injury was the cause of her depression.  Dr. Ayres also discovered that 
 
claimant had a B-12 deficiency, that does not mean that her B112 
 
deficiency was causally related to her work injury of December 18, 
 
1989.  
 
 
 
                       ANALYSIS AND CONCLUSIONS OF LAW
 
 
 
The first issue to be determined is whether the mental disability from 
 
which claimant now suffers, depression, is causally connected to her 
 
physical injury of December 18, 1989.
 
 
 
The party who would suffer loss if an issue were not established has 
 
the burden of proving that issue by a preponderance of the evidence.  
 

 
 
 
 
 
 
 
 
 
 
 
 
 
Iowa R. App. P. 14(f).
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the injury is a proximate cause of the disability on 
 
which the claim is based.  A cause is proximate if it is a substantial 
 
factor in bringing about the result; it need not be the only cause.  A 
 
preponderance of the evidence exists when the causal connection is 
 
probable rather than merely possible.  Blacksmith v. All-American, 
 
Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 
 
215 N.W.2d 296 (Iowa 1974).
 
 
 
The question of causal connection is essentially within the domain of 
 
expert testimony.  The expert medical evidence must be considered with 
 
all other evidence introduced bearing on the causal connection between 
 
the injury and the disability.  The weight to be given to any expert 
 
opinion is determined by the finder of fact and may be affected by the 
 
accuracy of the facts relied upon by the expert as well as other 
 
surrounding circumstances.  The expert opinion may be accepted or 
 
rejected, in whole or in part.  Sondag v. Ferris Hardware, 220 
 
N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 
 
531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
N.W.2d 867 (1965).
 
 
 
Dr. Wassmuth has been treating claimant for depression since January of 
 
1991.  He is the physician most qualified to offer an opinion on causal 
 
connection.  He is unable to say to any degree of medical certainty 
 
that claimant's car accident caused her depression.  Dr. Wassmuth in 
 
his deposition takes pains to point out the fallacy of a post hoc ergo 
 
propter hoc argument.  In other words, just because the car accident 
 
happened first and the depression second, does not mean that the car 
 
accident caused the depression.  Medical evidence is not only 
 
crucial, it is necessary to prove the causal connection between 
 
the physical injury and any subsequent mental disability.  
 
 
 
Claimant cannot offer medical evidence to prove by a preponderance 
 
of the evidence that her physical injury is causally connected to 
 
the depression from which she now suffers.  Thus, it is determined 
 
that claimant has not proven that her depression is causally 
 
connected to her physical injury of December 18, 1989.  The second 
 
issue to be determined is claimant's entitlement to healing 
 
period benefits.
 
 
 
Iowa Code section 85.34(1) provides that healing period benefits are 
 
payable to an injured worker who has suffered permanent partial 
 
disability until (1) the worker has returned to work; (2) the worker is 
 
medically capable of returning to substantially similar employment; or 
 
(3) the worker has achieved maximum medical recovery.  The healing 
 
period can be considered the period during which there is a reasonable 
 
expectation of improvement of the disabling condition.  See Armstrong 
 
Tire & Rubber Co. v. Kubli,312 N.W.2d 60 (Iowa Ct. App. 1981).  
 
Healing period benefits can be interrupted or intermittent.  
 
Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
 
 
 
Claimant was off work from February 26, 1990 until May 8, 1990 when she 
 
returned part time.  While off work she was paid healing period 
 
benefits.  When she returned to part time work on May 8, 1990 she was 
 
paid temporary partial disability benefits.  She was off work again 
 
beginning November 26, 1990.  She was paid additional healing period 
 
benefits until December 2, 1991.  She reached maximum medical 
 
improvement according to Dr. Kuhnlein on November 15, 1991.  Claimant 
 
is entitled to healing period benefits from November 26, 1990 
 
through November 15, 1991.  Claimant has been paid all of the 
 
healing period benefits to which she is entitled.  She was 
 
overpaid healing period benefits from November 15, 1991 through 
 
December 2, 1991.
 
 
 
The third issue to be determined is whether claimant is entitled to 
 
permanent partial disability benefits and if so, the commencement date 
 
for such benefits.  
 
 
 
Since claimant's injury is to her back an evaluation of her industrial 
 
disability is mandated.
 
 
 
Functional impairment is an element to be considered in determining 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
industrial disability which is the reduction of earning capacity, but 
 
consideration must also be given to the injured employee's age, 
 
education, qualifications, experience and inability to engage in 
 
employment for which the employee is fitted.  Olson v. Goodyear Serv. 
 
Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
253 Iowa 285, 110 N.W.2d 660 (1961).
 
 
 
A finding of impairment to the body as a whole found by a medical 
 
evaluator does not equate to industrial disability.  Impairment and 
 
disability are not synonymous.  The degree of industrial disability can 
 
be much different than the degree of impairment because industrial 
 
disability references to loss of earning capacity and impairment 
 
references to anatomical or functional abnormality or loss.  Although 
 
loss of function is to be considered and disability can rarely be found 
 
without it, it is not so that a degree of industrial disability 
 
is proportionally related to a degree of impairment of bodily function.
 
 
 
Factors to be considered in determining industrial disability include 
 
the employee's medical condition prior to the injury, immediately after 
 
the injury, and presently; the situs of the injury, its severity and 
 
the length of the healing period; the work experience of the employee 
 
prior to the injury and after the injury and the potential for 
 
rehabilitation; the employee's qualifications intellectually, 
 
emotionally and physically; earnings prior and subsequent to the 
 
injury; age; education; motivation; functional impairment as a 
 
result of the injury; and inability because of the injury to 
 
engage in employment for which the employee is fitted.  
 
 
 
Loss of earnings caused by a job transfer for reasons related to the 
 
injury is also relevant.  Likewise, an employer's refusal to give any 
 
sort of work to an impaired employee may justify an award of 
 
disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). 
 
 
 
 These are matters which the finder of fact considers collectively in 
 
arriving at the determination of the degree of industrial disability.
 
 
 
There are no weighting guidelines that indicate how each of the factors 
 
are to be considered.  Neither does a rating of functional impairment 
 
directly correlate to a degree of industrial disability to the body as 
 
a whole.  In other words, there are no formulae which can be applied 
 
and then added up to determine the degree of industrial disability.  It 
 
therefore becomes necessary for the deputy or commissioner to draw upon 
 
prior experience as well as general and specialized knowledge to make 
 
the finding with regard to degree of industrial disability.  
 
See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa 
 
Industrial Commissioner Decisions 529 (App. March 26, 1985); 
 
Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
Industrial Commissioner Decisions 654 (App. February 28, 1985).
 
 
 
Compensation for permanent partial disability shall begin at the 
 
termination of the healing period.  Compensation shall be paid in 
 
relation to 500 weeks as the disability bears to the body as a whole.  
 
Section 85.34.
 
 
 
Claimant was 59 years old on the day of the hearing.  She is college 
 
educated and has extensive experience as a dietician.  She is an 
 
articulate, intelligent woman.  Many of her job skills and education 
 
would be transferable to new situations.
 
 
 
Her back injury has not resulted in any surgery.  No treating physician 
 
has opined that she is unable to work.  Her work restrictions are not 
 
extensive.  She may lift only 20 to 25 pounds on an occasional basis 
 
and may never work with her arms overhead.  She may drive an automobile 
 
but will have to stop occasionally for breaks.  Most work performed by 
 
dieticians is within her work restrictions.  
 
 
 
While not attributable to her employment with defendant employer, 
 
claimant does suffer from depression.  This may make her a less 
 
attractive employee to potential employers.
 
 
 
She is not particularly motivated to return to work.  She believes that 
 
she is unable to work.  She still suffers from pain, but is able to sit 
 
fairly comfortably.
 

 
 
 
 
 
 
 
 
 
 
 
 
 
After considering all of the factors used to determine industrial 
 
disability, it is the decision of the undersigned that claimant has 
 
sustained a 20 percent industrial disability.
 
 
 
Claimant reached maximum medical improvement on November 15, 1991, thus 
 
her commencement date for permanent partial disability benefits is 
 
November 16, 1991.
 
 
 
The fourth issue to be addressed is whether claimant is entitled to 
 
payment of certain medical expenses.
 
 
 
The employer shall furnish reasonable surgical, medical, dental, 
 
osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, 
 
ambulance and hospital services and supplies for all conditions 
 
compensable under the workers' compensation law.  The employer shall 
 
also allow reasonable and necessary transportation expenses incurred 
 
for those services.  The employer has the right to choose the provider 
 
of care, except where the employer has denied liability for the injury. 
 
Iowa Code section 85.27.  Holbert v. Townsend Engineering Co., 
 
Thirty-second Biennial Report of the Industrial Commissioner 78 
 
(Review-reopen 1975).
 
 
 
Because claimant's disability, depression, is not causally connected to 
 
her work injury of December 18, 1989, she is not entitled to payment or 
 
reimbursement for medical expenses or prescription drugs associated 
 
with treatment of the depression.  This includes fees charged by Dr. 
 
Wassmuth and all prescriptions of Dr. Wassmuth.  Nor is claimant 
 
entitled to reimbursement of, or payment for, mileage expenses for 
 
appointments to Dr. Wassmuth or for picking up medication prescribed by 
 
Dr. Wassmuth.  
 
 
 
To the extent that joint exhibits 30, 31, 32, 33 and 34 represent 
 
claims for mileage, prescriptions or payment of treatment from 
 
Dr. Wassmuth, claimant is denied reimbursement or payment of 
 
those expenses.  The expense of the tennis shoes set out in 
 
joint exhibit 30, page 17, is reimbursable in the amount of $41.99.  
 
The costs of laboratory fees ordered by Dr. Wassmuth set out in 
 
joint exhibit 30, page 19, is not reimbursable or payable on 
 
behalf of claimant.  Taxi costs related to the treatment of 
 
Dr. Wassmuth are not reimbursable to claimant.  Dr. Wassmuth's 
 
charges as set out in joint exhibit 16 are not reimbursable to 
 
claimant nor are they owed by defendants on behalf of claimant.
 
 
 
The fifth issue to be addressed is whether claimant is entitled to 
 
alternate medical care under Iowa Code section 85.27. 
 
 
 
Iowa Code section 85.27 provides, in relevant part:
 
 
 
For purposes of this section, the employer is obliged to furnish 
 
reasonable services and supplies to treat an injured employee, and has 
 
the right to choose the care.  The treatment must be offered promptly 
 
and be reasonably suited to treat the injury without undue 
 
inconvenience to the employee.  If the employee has reason to be 
 
dissatisfied with the care offered, the employee should communicate the 
 
basis of such dissatisfaction to the employer, in writing if requested, 
 
following which the employer and the employee may agree to alternate 
 
care reasonably suited to treat the injury.  If the employer and 
 
employee cannot agree on such alternate care, the commissioner may, 
 
upon application and reasonable proofs of the necessity therefor, 
 
allow and order other care.
 
 
 
An application for alternate medical care is not automatically 
 
sustained because claimant is dissatisfied with the care he has been 
 
receiving.  Mere dissatisfaction with the medical care is not ample 
 
grounds for granting an application for alternate medical care.  
 
Rather, the claimant must show that the care was not offered promptly, 
 
was not reasonably suited to treat the injury, or that the care was 
 
unduly inconvenient for the claimant.  Long v. Roberts Dairy Company, 
 
file number 982297 (App. Dec. Feb. 5,1993)
 
 
 
Claimant was offered care promptly that was reasonably suited to treat 
 
her work-related injury.  Claimant has not proven that the offered 
 
medical care was unduly inconvenient nor has she proven that she 
 
communicated her dissatisfaction to defendant employer in writing.  
 
 
 
Since it has been determined that claimant's depression is not causally 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
connected to her work injury of December 18, 1989, she is not entitled 
 
to any alternate medical care for the depression.  Alternate medical 
 
care is denied.
 
 
 
The sixth issue to be determined is whether claimant is entitled to 
 
permanent disability benefits under the "odd lot" doctrine.
 
In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), the Iowa 
 
court formally adopted the "odd-lot doctrine."  Under that doctrine a 
 
worker becomes an odd-lot employee when an injury makes the worker 
 
incapable of obtaining employment in any well-known branch of the labor 
 
market.  An odd-lot worker is thus totally disabled if the only 
 
services the worker can perform are "so limited in quality, 
 
dependability, or quantity that a reasonably stable market for them 
 
does not exist."  Guyton, 373 N.W.2d at 105.
 
 
 
The burden of persuasion on the issue of industrial disability always 
 
remains with the worker.  When a worker makes a prima facie case of 
 
total disability by producing substantial evidence that the worker is 
 
not employable in the competitive labor market, the burden to produce 
 
evidence of suitable employment shifts to the employer, however.  If 
 
the employer fails to produce such evidence and if the trier of fact 
 
finds the worker does fall in the odd-lot category, the worker is 
 
entitled to a finding of total disability.  Guyton, 373 N.W.2d at 
 
106.  Even under the odd-lot doctrine, the trier of fact is free 
 
to determine the weight and credibility of evidence in determining 
 
whether the worker's burden of persuasion has been carried, and 
 
only in an exceptional case would evidence be sufficiently strong 
 
as to compel a finding of total disability as a matter of law.  
 
Guyton, 373 N.W.2d at 106.
 
 
 
Claimant is a college educated, articulate, intelligent woman.  Her 
 
work restrictions do not prevent her from working in the field for 
 
which she is trained.  Dietician jobs exist in the area where she 
 
lives.  Claimant has not proven by any weight of the evidence that she 
 
is an odd-lot worker.  
 
 
 
The final issue to be determined is whether claimant is entitled to 
 
penalty benefits under Iowa Code section 86.13
 
 
 
Iowa Code section 86.13 permits an award of up to 50 percent of the 
 
amount of benefits delayed or denied if a delay in commencement or 
 
termination of benefits occurs without reasonable or probable cause or 
 
excuse.  The standard for evaluating the reasonableness of defendants' 
 
delay in commencement or termination is whether the claim is fairly 
 
debatable.  Where a claim is shown to be fairly debatable, defendants 
 
do not act unreasonably in denying payment.  See Stanley v. Wilson 
 
Foods Corp., File No. 753405 (App. August 23, 1990); Seydel v. 
 
Univ. of Iowa Physical Plant, File No. 818849 (App. November 1, 1989).
 
 
 
Defendants paid claimant healing period benefits as well as temporary 
 
partial disability benefits for most of the time she was off work.  
 
When they stopped paying healing period benefits, claimant was paid 
 
permanent partial disability benefits based on Dr. Kuhnlein's 
 
functional impairment rating.  Claimant has failed to prove that 
 
defendants have denied her benefits without probable cause or excuse.  
 
 
 
Penalty benefits are denied.
 
 
 
                               ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
That defendants shall pay claimant one hundred (100) weeks of permanent 
 
partial disability at the rate of two hundred ninety_nine and 28/100 
 
dollars ($299.28) per week commencing on November 16, 1991.
 
 
 
That defendants shall pay claimant sixty_one (61) weeks of healing 
 
period benefits at the rate of two hundred ninety_nine and 28/100 
 
dollars ($299.28) per week.
 
 
 
That defendant shall pay medical expenses as set out in the body of the 
 
decision.
 
 
 
That defendants shall pay accrued benefits in a lump sum.
 
 
 
That defendants shall receive credit for benefits previously paid.
 
 
 
That defendants shall pay interest on the award as governed by Iowa 
 
Code section 85.30.
 

 
 
 
 
 
 
 
 
 
That defendants shall pay the costs of this action.
 
 
 
That defendants shall file claim activity reports as requested 
 
by the agency.
 
 
 
Signed and filed this ____ day of April, 1995.         
 
                             ________________________________        
 
                             TERESA K. HILLARY        
 
                             DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr Dennis J Mahr
 
Attorney at Law
 
318 Insurance Centre
 
507 Seventh St
 
Sioux City IA 51101
 
 
 
Mr Frank Harrison
 
Attorney at Law
 
2700 Grand Ave
 
Des Moines IA 50312
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                               5-1108.20; 5-1404; 5-4100
 
                               5-1801.1; 5-1803
 
                               Filed April 25, 1995
 
                               Teresa K. Hillary
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
PATRICIA JEANNE PUCHER, 
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                      File No. 941181
 
THE BRITWILL COMPANY,   
 
                                  A R B I T R A T I O N
 
     Employer, 
 
                                      D E C I S I O N
 
and       
 
          
 
WAUSAU INSURANCE COMPANIES,  
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
5-1108.20; 5-1404; 5-4100; 5-1801.1; 5-1803 
 
Claimant, age 59 at the hearing, with college degree and over 30 years 
 
work experience as a dietician, suffered a back injury in an automobile 
 
accident in a company car.  No surgery required.  Claimant, who alleged 
 
a physical-mental, failed to prove that her severe depression was 
 
causally connected to her previous car accident.  Awarded 20 percent 
 
industrial disability.