Page   1
 
            
 
            
 
            
 
            
 
            
 
                      before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHAD COUNTER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 941353
 
            CARLSON MACHINE CO.,          :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Chad 
 
            Counter, claimant, against Carlson Machine Company, employer 
 
            (hereinafter referred to as Carlson Machine), and CNA 
 
            Insurance Company, for workers' compensation benefits as a 
 
            result of an alleged injury on February 13, 1990.  On March 
 
            16, 1992, a hearing was held on claimant's petition and the 
 
            matter was considered fully submitted at the close of this 
 
            hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On February 13, 1990, claimant received an injury 
 
            arising out of and in the course of employment with Carlson 
 
            Machine.
 
            
 
                 2.  Claimant is entitled to healing period benefits 
 
            from February 14, 1990 through May 13, 1991.
 
            
 
                 3.  The injury was a cause of permanent disability and 
 
            benefits for permanency would begin as of May 14, 1991
 
            
 
                 4.  At the time of injury, claimant's gross rate of 
 
            weekly compensation was $220.00.  He was single and entitled 
 
            to two exemptions.  This establishes a weekly rate of com
 
            pensation of $144.84, according to the Industrial 
 
            Commissioner's published rate booklet for FY 90.
 
            
 
                 5.  All requested medical benefits have been or will be 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            paid by defendants. 
 
            
 
                                      ISSUE
 
            
 
                 The only issue submitted by the parties for determina
 
            tion in this proceeding is the extent of claimant's entitle
 
            ment to permanent disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the dis
 
            ability.  From his demeanor while testifying, claimant is 
 
            found credible.
 
            
 
                 Claimant worked for Carlson Machine from September 1989 
 
            until the injury herein.  Claimant was a tear down person.  
 
            This required him to dismantle and clean large engine and 
 
            compressor assemblies.  Claimant regularly lifted in excess 
 
            of 50 pounds in this job prior to the injury.  Claimant 
 
            earned $5.50 per hour at the time of the alleged injury 
 
            herein.
 
            
 
                 On or about February 13, 1990, claimant injured his low 
 
            back while lifting a cylinder head of a diesel engine.  
 
            Defendants do not dispute the occurrence of this injury.  
 
            Claimant experienced immediate low back pain and leg numb
 
            ness with multiple back spasms.  Claimant continued working 
 
            for a while but later that day sought medical treatment from 
 
            the company doctor, D. M. Youngblade, M.D.  Dr. Youngblade 
 
            diagnosed back strain and placed claimant on light duty for 
 
            two weeks.  However, claimant then went to M. D. Van Patten, 
 
            M.D., who took him off work for continued symptoms.  After 
 
            his treatment of claimant failed to improve claimant's con
 
            dition, Dr. Van Patten referred claimant to an orthopedic 
 
            surgeon, Duane K. Nelson, M.D.  Dr. Nelson treated claimant 
 
            over the next several months.  This treatment involved con
 
            servative care consisting of medication, physical therapy 
 
            and use of a back brace.  Claimant still did not improve and 
 
            Dr. Nelson recommended treatment at the University of Iowa 
 
            Spine Diagnostic and Treatment Center in April and May 1991.  
 
            Claimant was released from this center after a two week 
 
            rehabilitation program with restrictions against lifting 
 
            over 45 pounds (not more than 4 times per hour) and against 
 
            repeated lifting over 22 pounds (more than 4 times per 
 
            hour).
 
            
 
                 Claimant suffered several injuries/auto accidents in 
 
            his life both before and after the work injury herein.  
 
            Claimant's testimony that he suffered no back problems 
 
            before February 13, 1990 and no additional problems after 
 
            any subsequent injuries is uncontroverted in the record.  
 
            Therefore, it is found that claimant's current disability is 
 
            solely caused by the work injury of February 13, 1990.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant was denied unemployment compensation benefits 
 
            because he failed to immediately report for work at Carlson 
 
            Machine.  Carlson Machine has hired another person to fill 
 
            claimant's position.  Carlson Machine management states that 
 
            in May 1991 claimant was able to return to his former job at 
 
            Carlson Machine even with his current restrictions due to 
 
            the availability of mechanical lifting devices in the shop.  
 
            The undersigned is quite skeptical of Carlson Machine's tes
 
            timony.  The owner admitted at hearing in this case that 
 
            employees in the shop regularly do not use the available 
 
            equipment and lift over 50 pounds.  Nowhere was it shown 
 
            that this possible accommodation was ever communicated to 
 
            claimant in May 1991.  The undersigned believes it was fully 
 
            justified for claimant to believe that returning to Carlson 
 
            Machine was not possible within his restrictions if he and 
 
            others were clearly expected before that time to lift more 
 
            than 50 pounds.  Claimant credibly testified that use of 
 
            lifting devices would greatly slow down production in the 
 
            shop.
 
            
 
                 However, regardless of whether or not defendants were 
 
            justified in replacing claimant in May 1991, claimant today 
 
            has a permanent industrial disability.  The work injury of 
 
            February 13, 1990, was a cause of an 8-10 percent permanent 
 
            impairment to the body as a whole according to the uncontro
 
            verted views of Dr. Nelson and the University of Iowa Spine 
 
            Center.  Also, claimant is unable to lift over 45 pounds or 
 
            22 pounds repetitively.  Additionally, claimant stated at 
 
            hearing that he cannot sit or stand for long periods of time 
 
            and must change positions frequently to avoid pain.  
 
            Claimant's only past working experience has been in jobs 
 
            requiring either heavy work or unskilled minimum wage 
 
            restaurant work.  He has some skills in repairing small 
 
            engines but, as explained by claimant at hearing, today's 
 
            small engines are very "high tech" and he would need more 
 
            training.  A vocational consultant whose views are uncontro
 
            verted in the record opines that due to his physical limita
 
            tions, claimant is precluded from up to 45 percent of the 
 
            jobs in the labor market.
 
            
 
                 However, claimant is very young and his youth is a pos
 
            itive factor in obtaining new work skills. Claimant has a 
 
            high school education.  He appeared bright and fairly artic
 
            ulate at hearing.  He appears to be motivated to overcome 
 
            his disability.  Claimant is now employed as a convenience 
 
            store clerk and earns approximately $1.00 per hour less than 
 
            at Carlson Machine, but he only works 32 hours a week.  This 
 
            job appears to be within his physical and mental capabili
 
            ties but he has clearly suffered a loss of actual earnings 
 
            as a result of the inability to return to full time heavy, 
 
            manual labor.
 
            
 
                 Therefore it is found that the work injury of February 
 
            13, 1990, was a cause of a 40 percent loss of earning 
 
            capacity.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant must establish by a preponderance of the evi
 
            dence the extent of weekly benefits for permanent disability 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            to which claimant is entitled.  As the claimant has shown 
 
            that the work injury was a cause of a permanent physical 
 
            impairment or limitation upon activity involving the body as 
 
            a whole, the degree of permanent disability must be measured 
 
            pursuant to Iowa Code section 85.34(2)(u).  However, unlike 
 
            scheduled member disabilities, the degree of disability 
 
            under this provision is not measured solely by the extent of 
 
            a functional impairment or loss of use of a body member.  A 
 
            disability to the body as a whole or an "industrial disabil
 
            ity" is a loss of earning capacity resulting from the work 
 
            injury.  Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
            593, 258 N.W. 899 (1935).  A physical impairment or restric
 
            tion on work activity may or may not result in such a loss 
 
            of earning capacity.  The extent to which a work injury and 
 
            a resulting medical condition has resulted in an industrial 
 
            disability is determined from examination of several fac
 
            tors.  These factors include the employee's medical condi
 
            tion prior to the injury, immediately after the injury and 
 
            presently; the situs of the injury, its severity and the 
 
            length of healing period; the work experience of the 
 
            employee prior to the injury, after the injury and potential 
 
            for rehabilitation; the employee's qualifications intellec
 
            tually, emotionally and physically; earnings prior and sub
 
            sequent to the injury; age; education; motivation; func
 
            tional 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 trans
 
            fer for reasons related to the injury is also relevant.  
 
            Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 
 
            N.W.2d 251, 257 (1963).  See Peterson v. Truck Haven Cafe, 
 
            Inc., (Appeal Decision, February 28, l985).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 40 percent loss of his earning capacity as a result 
 
            of the work injury.  Such a finding entitles claimant to 200 
 
            weeks of permanent partial disability benefits as a matter 
 
            of law under Iowa Code section 85.34(2)(u) which is 40 per
 
            cent of 500 weeks, the maximum allowable number of weeks for 
 
            an injury to the body as a whole in that subsection. 
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant two hundred (200) 
 
            weeks of permanent partial disability benefits at a rate of 
 
            one hundred forty-four and 84/l00 dollars ($144.84) per week 
 
            from May 14, 1991.
 
            
 
                 2.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 3.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 4.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 5.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Daryl L. Hecht
 
            Attorney at Law
 
            614 Pierce Street
 
            P O Box 27
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Michael P. Jacobs
 
            Attorney at Law
 
            300 Toy National Bank Building
 
            Sioux City, Iowa  51101
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed April 23, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CHAD COUNTER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 941353
 
            CARLSON MACHINE CO.,          :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803 - Non-precedential, extent of disability case.
 
            
 
 
rmined that claimant's bilateral carpal 
 
            tunnel syndrome was caused by a single accident pursuant to 
 
            Iowa Code section 85.34(2)(s) which occurred on July 12, 
 
            1989.  
 
            
 
                 The parties stipulated that claimant was an employee 
 
            who worked in the yard of employer and used both hands and 
 
            arms to perform hammering and nailing.  The parties further 
 
            stipulated that claimant felt symptoms in both wrists 
 
            simultaneously on July 12, 1989.  
 
            
 
                 Behrouz Rassekh, M.D., a neurosurgeon, saw claimant on 
 
            July 12, 1989, for bilateral numbness in his hands, worse on 
 
            the left.  He diagnosed bilateral carpal tunnel syndrome, 
 
            worse on the left than the right. (Exhibit 2).  
 
            
 
                 Nerve conduction studies requested by Dr. Rassekh were 
 
            performed by Jason T. Ohr, M.D., a neurologist, on July 19, 
 
            1989. He stated that his findings were consistent with 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            bilateral carpal tunnel, worse on the left (Ex. 1).  
 
            Bilateral carpal tunnel symptoms persisted on February 3, 
 
            1990 (Ex. 3).  Dr. Rassekh performed a decompression of the 
 
            left median nerve to relieve the left carpal tunnel on 
 
            February 19, 1990 (Ex. 10-12).
 
            
 
                 The parties stipulated that Charles Taylon, M.D., an 
 
            orthopedic surgeon, performed a release of the right carpal 
 
            tunnel sometime after September 20, 1991, even though there 
 
            are no records from Dr. Taylon in evidence.  
 
            
 
                 The industrial commissioner has determined that the 
 
            loss of two scheduled members simultaneously is a loss from 
 
            a single accident under Iowa Code section 85.34(2)(s).  
 
            Shank v. Mercy Hospital Medical Center, File No. 719627 
 
            (Appeal Decision filed August 28, 1989). (Appealed to 
 
            District Court)  
 
            
 
                 *****
 
            
 
                 More specifically, the industrial commissioner has 
 
            determined that bilateral carpal tunnel syndrome constituted 
 
            the loss of two scheduled members as a result of a single 
 
            gradual injury process and that the disability was to be 
 
            compensated as a single accident under Iowa Code section 
 
            85.34(2)(s).  Johnson v. George A. Hormel and Company, File 
 
            Nos. 782796 and 7927933 (Appeal Decision June 21, 1988).  
 
            
 
                 Even more specifically, the industrial commissioner has 
 
            determined that bilateral carpal tunnel constituted a single 
 
            accident when the symptoms to both hands occurred at the 
 
            same time and were diagnosed on the first doctor appointment 
 
            even though employer submitted two first reports of injury, 
 
            two claim files were set-up and processed, two separate 
 
            petitions were filed and the two different surgeries 
 
            occurred approximately a year apart.  Himschoot v. Montezuma 
 
            Manufacturing, File Nos. 672778 and 738235 (Appeal Decision 
 
            April 15, 1988).  
 
            
 
                 In Himschoot, permanent partial disability benefits 
 
            were awarded for functional impairment as a single accident 
 
            based upon 500 weeks as prescribed by section 85.34(2)(s) by 
 
            converting and combining values using the guides to 
 
            evaluation of permanent impairment published by the American 
 
            Medical Association.  Simbro v. DeLong's Sportswear, 332 
 
            N.W.2d 886 (Iowa 1983).  (Himschoot was affirmed by the 
 
            court of appeals but cannot be cited as precedent because it 
 
            is an unpublished decision.  Himschoot v. Montezuma 
 
            Manufacturing, 458 N.W.2d 875 (Iowa 1990). 
 
            
 
                 In Simbro, cited above, claimant had developed a 
 
            compression of the ulnar nerve in both wrists in her job as 
 
            a material cutter to make school and award jackets.  This 
 
            job required heavy lifting and the use of heavy cutting 
 
            instruments.  The Supreme Court stated, "In this appeal we 
 
            hold that workers' compensation benefits for permanent 
 
            partial disability of two members caused by a single 
 
            accident is a scheduled benefit."  Thus, the Supreme Court 
 
            had no difficulty finding a "single accident" in a 
 
            cumulative trauma, repetitive injury case.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Bilateral carpal tunnel syndromes were also determined 
 
            to be a single accident pursuant to Iowa Code section 
 
            85.34(2)(s) in Kebernik v. Thatcher Plastic Packaging, File 
 
            No. 704973 (Arb. Dec., December 22, 1988).  
 
            
 
                 It has also been decided that when bilateral repetitive 
 
            injury symptoms or complaints occur a few months apart in 
 
            point of time, but are subsequently treated as a bilateral 
 
            problem, that it constitutes a single accident pursuant to 
 
            Iowa Code section 85.34(2)(s).  Jones v. Lamoni Products, 
 
            File No. 800310 filed May 29, 1991; Torgerson v. Webster 
 
            City Custom Meats, File No. 863533 (Appeal Decision July 30, 
 
            1992). (Appealed to District Court)
 
            
 
                 The Iowa Supreme Court had defined "injury" very 
 
            broadly.  Almquist v. Shenandosh Nurseries, Inc., 218 Iowa 
 
            724, 732, 254 N.W. 35, 39 (1934); Lawyer and Higgs, Iowa 
 
            Workers' Compensation Law and Practice, section 4-1, page 
 
            19.
 
            
 
                 An accident is not required.  Olson v. Goodyear Serv. 
 
            Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  
 
            Proof of a special incident or unusual occurrence is not 
 
            required.  Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 159 
 
            (1949).  A personal injury may develop gradually over an 
 
            extended period of time.  Black v. Creston Auto Co., 255 
 
            Iowa 671, 281 N.W. 189 (1938).  Cumulative injuries such as 
 
            this one are recognized in Iowa in situations where the 
 
            disability comes on gradually and the compensable injury 
 
            occurs later.  Repetitive activity has been determined to be 
 
            a valid cause of an injury.  McKeever Custom Cabinets v. 
 
            Smith, 379 N.W.2d 368 (Iowa 1985).
 
            
 
                 Even though the Supreme Court of Iowa determined in 
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, that the 
 
            injury date was the date when pain or disability prevented 
 
            the employee from continuing to work, they later expanded 
 
            the determination of the possible injury date to any date 
 
            supported by the evidence and granted the industrial 
 
            commissioner substantial latitude in making this 
 
            determination.  Oscar Mayer Foods Corp. v. Tasler, 483 
 
            N.W.2d 824 (Iowa 1992).  
 
            
 
                 ***** In Thompson v. Shenandoah Gate Company, file 
 
            number 883575, (Appeal Decision August 30, 1991), ***** the 
 
            industrial commissioner affirmed the deputy but modified the 
 
            decision as to the proper injury date.  The deputy held that 
 
            the injury date was the last day claimant worked for 
 
            defendant prior to a lay off.  The industrial commissioner 
 
            made a literal interpretation of McKeever and determined 
 
            that the injury date was the date on which claimant was no 
 
            longer able to work, which was the date that he was 
 
            hospitalized.  The date on which claimant Thompson was 
 
            hospitalized was after the lay off date.  Claimant was no 
 
            longer working for employer on that date and never did 
 
            return to work for employer.  Since Thompson, however, the 
 
            industrial commissioner has affirmed the decision of the 
 
            deputy in the Tasler case which determined that the last day 
 
            of work prior to a plant closing was a proper date of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            injury.  The Tasler case has indicated that a wide range of 
 
            injury dates are possible and that any date which is 
 
            supported by substantial evidence will be an acceptable date 
 
            of injury in cumulative trauma cases.
 
            
 
                 Wherefore, it is determined in this case that based on 
 
            these facts the date of injury is the date that the parties 
 
            stipulated that claimant experienced simultaneous symptoms 
 
            in both wrists and that he was diagnosed as having bilateral 
 
            carpal tunnel which was July 12, 1989.
 
            
 
                 It is further determined that claimant's bilateral 
 
            carpal tunnel was caused by a single accident as those words 
 
            are used in Iowa Code 85.34(2)(s).
 
            
 
                 Claimant did not sustain separate injuries to each hand 
 
            pursuant to Iowa code section 85.34(2)(1).
 
            
 
                 It has been determined by the industrial commissioner 
 
            that carpal tunnel syndrome is not an occupational disease.  
 
            Himschoot v. Montezuma Mfg., File Nos. 672778 and 738325 
 
            (App. Dec., April 15, 1988); Noble v. Lamoni Products, File 
 
            Nos. 857575 and 851309 (App. Dec., May 7, 1992) (affirmed by 
 
            the district court and appealed to the supreme court).
 
            
 
                                   ENTITLEMENT
 
            
 
                 It is determined that claimant is entitled to 50 weeks 
 
            of permanent partial disability benefits pursuant to Iowa 
 
            Code section 85.34(2)(s).
 
            
 
                 Dr. Rassekh determined on December 5, 1990, that 
 
            claimant had sustained a 10 percent permanent impairment to 
 
            the left hand and a 10 percent permanent impairment to the 
 
            right hand (Ex. 8).  The parties further stipulated at the 
 
            hearing that these were the correct permanent impairment 
 
            ratings for each hand.  
 
            
 
                 The parties stipulated on the hearing report signed by 
 
            both parties that the injury was the cause of both the 
 
            temporary and permanent disability.
 
            
 
                 Using the Guides to the Evaluation of Permanent 
 
            Impairment, Third Edition (revised), published by the 
 
            American Medical Association, using Table 2 on page 16 it 
 
            shows that 10 percent of the hand converts to 9 percent of 
 
            the upper extremity.  Table 3 on page 16 shows that 9 
 
            percent of the upper extremity converts to 5 percent of the 
 
            whole person.  Using the combined values chart on page 254, 
 
            5 percent of the whole person for the right hand injury and 
 
            5 percent of the whole person for the left hand injury 
 
            combines to 10 percent of the whole person.  Applying Iowa 
 
            Code section 85.34(2)(s) 10 percent of 500 weeks equals 50 
 
            weeks of permanent partial disability benefits to which 
 
            claimant is entitled for this single accident which occurred 
 
            to both hands.
 
            conclusions of law
 
            The conclusions of law contained in the proposed agency 
 
            decision filed October 30, 1992 are adopted as final agency 
 
            action.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant pay to claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of two hundred ninety-two dollars and 09/100 ($292.09) per 
 
            week in the total amount of fourteen thousand six hundred 
 
            four and 50/100 dollars ($14,604.50) commencing on March 12, 
 
            1990, as stipulated to by the parties.
 
            
 
                 That defendant is entitled to a credit for thirty-eight 
 
            (38) weeks of permanent partial disability benefits paid to 
 
            claimant prior to hearing at the rate of two hundred 
 
            ninety-two dollars ($292) per week in the total amount of 
 
            eleven thousand ninety-six dollars ($11,096) as stipulated 
 
            to by the parties on the hearing report and based upon a ten 
 
            percent (10%) permanent impairment to each hand as a 
 
            separate injury.
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the 
 
            transcript of the hearing are charged to defendant pursuant 
 
            to rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 
 
            86.40.
 
            
 
                 That defendant file any claim activity reports 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of April, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 Third Ave.
 
            P.O. Box 1588
 
            Council Bluffs, IA  51502
 
            
 
            Mr. W. Curtis Hewett
 
            Attorney at Law
 
            25 Main Place
 
            P.O. Box 249
 
            Council Bluffs, IA  51502
 
            
 
 
            
 
 
 
             
 
 
 
                                           1808
 
                                           Filed April 29, 1993
 
                                           BYRON K. ORTON
 
                                           
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
         
 
            DANIEL FICHTER,       
 
                        
 
                 Claimant,                    File No. 941434
 
                        
 
            vs.                                 A P P E A L
 
                        
 
            GRIFFIN PIPE PRODUCTS,             D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
               
 
            
 
            1808
 
            
 
            Bilateral carpal tunnel that occurred in both wrists at the 
 
            same time and was diagnosed as bilateral carpal tunnel on 
 
            the first office visit was determined to be "caused by a 
 
            single accident" as those words are used in Iowa Code 
 
            section 85.34(2)(s) and was compensated on the basis of 500 
 
            weeks and not as separate injuries to each hand pursuant to 
 
            Section 85.34(2)(1).  Several cites.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DANIEL FICHTER,     
 
                      
 
                 Claimant,                     File No. 941434
 
                      
 
            vs.                             A R B I T R A T I O N
 
                                          
 
            GRIFFIN PIPE PRODUCTS,             D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
                      
 
            ___________________________________________________________
 
                                  INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Daniel 
 
            Fichter, claimant, against Griffin Pipe Products, employer, 
 
            and self-insured defendant for benefits as a result of an 
 
            injury or injuries that allegedly occurred on or about July 
 
            12, 1989.  A hearing was held in Council Bluffs, Iowa on 
 
            October 21, 1992, and the case was fully submitted at the 
 
            close of the hearing.  Claimant was represented by Sheldon 
 
            M. Gallner.  Defendant was represented by W. Curtis Hewett.  
 
            The record consists of joint exhibits 1 through 12.  The 
 
            case was submitted on the written exhibits and no testimony 
 
            was heard at the time of the hearing.  The deputy ordered a 
 
            transcript of the proceedings.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            
 
                 Whether claimant sustained an injury to both hands 
 
            "caused by a single accident" pursuant to the provisions of 
 
            Iowa Code section 85.34(2)(s), or whether claimant sustained 
 
            separate injuries to each hand pursuant to Iowa Code section 
 
            85.34(2)(l).
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits and if so, the extent of benefits to which he is 
 
            entitled.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                                      INJURY
 
            
 
                 It is determined that claimant's bilateral carpal 
 
            tunnel syndrome was caused by a single accident pursuant to 
 
            Iowa Code section 85.34(2)(s) which occurred on July 12, 
 
            1989.  
 
            
 
                 The parties stipulated that claimant was an employee 
 
            who worked in the yard of employer and used both hands and 
 
            arms to perform hammering and nailing.  The parties further 
 
            stipulated that claimant felt symptoms in both wrists 
 
            simultaneously on July 12, 1989.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Behrouz Rassekh, M.D., a neurosurgeon, saw claimant on 
 
            July 12, 1989, for bilateral numbness in his hands, worse on 
 
            the left.  He diagnosed bilateral carpal tunnel syndrome, 
 
            worse on the left than the right. (Exhibit 2).  
 
            
 
                 Nerve conduction studies requested by Dr. Rassekh were 
 
            performed by Jason T. Ohr, M.D., a neurologist, on July 19, 
 
            1989. He stated that his findings were consistent with 
 
            bilateral carpal tunnel, worse on the left (Ex. 1).  
 
            Bilateral carpal tunnel symptoms persisted on February 3, 
 
            1980 (Ex. 3).  Dr. Rassekh performed a decompression of the 
 
            left median nerve to relieve the left carpal tunnel on 
 
            February 19, 1990 (Ex. 10-12).
 
            
 
                 The parties stipulated that Charles Taylon, M.D., an 
 
            orthopedic surgeon, performed a release of the right carpal 
 
            tunnel sometime after September 20, 1991, even though there 
 
            are no records from Dr. Taylon in evidence.  
 
            
 
                 The industrial commissioner has determined that the 
 
            loss of two scheduled members simultaneously is a loss from 
 
            a single accident under Iowa Code section 85.34(2)(s).  
 
            Shank v. Mercy Hospital Medical Center, File No. 719627 
 
            (Appeal Decision filed August 28, 1989). (Appealed to 
 
            District Court)  
 
            
 
                 Deputies have made the same determination.  Coronado v. 
 
            Armour Food Co., File No. 823415 filed January 19, 1990.  
 
            Larry Palmer v. Iowa Power, Inc., File No. 941807, 
 
            arbitration decision August 21, 1992 (on appeal).
 
            
 
                 More specifically, the industrial commissioner has 
 
            determined that bilateral carpal tunnel syndrome constituted 
 
            the loss of two scheduled members as a result of a single 
 
            gradual injury process and that the disability was to be 
 
            compensated as a single accident under Iowa Code section 
 
            85.34(2)(s).  Johnson v. George A. Hormel and Company, File 
 
            Nos. 782796 and 7927933 (Appeal Decision June 21, 1988).  
 
            
 
                 Even more specifically, the industrial commissioner has 
 
            determined that bilateral carpal tunnel constituted a single 
 
            accident when the symptoms to both hands occurred at the 
 
            same time and were diagnosed on the first doctor appointment 
 
            even though employer submitted two first reports of injury, 
 
            two claim files were set-up and processed, two separate 
 
            petitions were filed and the two different surgeries 
 
            occurred approximately a year apart.  Himschoot v. Montezuma 
 
            Manufacturing, File Nos. 672778 and 738235 (Appeal Decision 
 
            April 15, 1988).  
 
            
 
                 In Himschoot, permanent partial disability benefits 
 
            were awarded for functional impairment as a single accident 
 
            based upon 500 weeks as prescribed by section 85.34(2)(s) by 
 
            converting and combining values using the guides to 
 
            evaluation of permanent impairment published by the American 
 
            Medical Association.  Simbro v. DeLong's Sportswear, 332 
 
            N.W.2d 886 (Iowa 1983).  (Himschoot was affirmed by the 
 
            court of appeals but cannot be cited as precedent because it 
 
            is an unpublished decision.  Himschoot v. Montezuma 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Manufacturing, 458 N.W. 2d 875 (Iowa, 1990). 
 
            
 
                 In Simbro, cited above, claimant had developed a 
 
            compression of the ulnar nerve in both wrists in her job as 
 
            a material cutter to make school and award jackets.  This 
 
            job required heavy lifting and the use of heavy cutting 
 
            instruments.  The Supreme Court stated, "In this appeal we 
 
            hold that workers' compensation benefits for permanent 
 
            partial disability of two members caused by a single 
 
            accident is a scheduled benefit."  Thus, the Supreme Court 
 
            had no difficulty finding a "single accident" in a 
 
            cumulative trauma, repetitive injury case.
 
            
 
                 Bilateral carpal tunnel syndromes were also determined 
 
            to be a single accident pursuant to Iowa Code section 
 
            85.34(2)(s) in Kebernik v. Thatcher Plastic Packaging, File 
 
            No. 704973 (Arb. Dec., December 22, 1988).  
 
            
 
                 It has also been decided that when bilateral repetitive 
 
            injury symptoms or complaints occur a few months apart in 
 
            point of time, but are subsequently treated as a bilateral 
 
            problem, that it constitutes a single accident pursuant to 
 
            Iowa Code section 85.34(2)(s).  Jones v. Lamoni Products, 
 
            File No. 800310 filed May 29, 1991; Torgerson v. Webster 
 
            City Custom Meats, File No. 863533 (Appeal Decision July 30, 
 
            1992). (Appealed to District Court)
 
            
 
                 The Iowa Supreme Court had defined "injury" very 
 
            broadly.  Almquist v. Shenandosh Nurseries, Inc., 218 Iowa 
 
            724, 732, 254 N.W. 35, 39 (1934); Lawyer and Higgs, Iowa 
 
            Workers' Compensation Law and Practice, section 4-1, page 
 
            19.
 
            
 
                 An accident is not required.  Olson v. Goodyear Serv. 
 
            Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  
 
            Proof of a special incident or unusual occurrence is not 
 
            required.  Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 159 
 
            (1949).  A personal injury may develop gradually over an 
 
            extended period of time.  Black v. Creston Auto Co., 255 
 
            Iowa 671, 281 N.W. 189 (1938).  Cumulative injuries such as 
 
            this one are recognized in Iowa in situations where the 
 
            disability comes on gradually and the compensable injury 
 
            occurs later.  Repetitive activity has been determined to be 
 
            a valid cause of an injury.  McKeever Custom Cabinets v. 
 
            Smith, 379 N.W.2d 368 (Iowa 1985).
 
            
 
                 Even though the Supreme Court of Iowa determined in 
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, that the 
 
            injury date was the date when pain or disability prevented 
 
            the employee from continuing to work, they later expanded 
 
            the determination of the possible injury date to any date 
 
            supported by the evidence and granted the industrial 
 
            commissioner substantial latitude in making this 
 
            determination.  Oscar Mayer Foods Corp. v. Tasler, 483 
 
            N.W.2d 824 (Iowa 1992).  
 
            
 
                 Counsel for defendant may have been uncertain about the 
 
            proper injury date in cumulative trauma cases because of the 
 
            decision in Thompson v. Shenandoah Gate Company, file number 
 
            883575, (Appeal Decision August 30, 1991) in which he 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            represented the defendant Shenandoah.  In the Thompson case 
 
            the industrial commissioner affirmed the deputy but modified 
 
            the decision as to the proper injury date.  The deputy held 
 
            that the injury date was the last day claimant worked for 
 
            defendant prior to a lay off.  The industrial commissioner 
 
            made a literal interpretation of McKeever and determined 
 
            that the injury date was the date on which claimant was no 
 
            longer able to work, which was the date that he was 
 
            hospitalized.  The date on which claimant Thompson was 
 
            hospitalized was after the lay off date.  Claimant was no 
 
            longer working for employer on that date and never did 
 
            return to work for employer.  Since Thompson, however, the 
 
            industrial commissioner has affirmed the decision of the 
 
            deputy in the Tasler case which determined that the last day 
 
            of work prior to a plant closing was a proper date of 
 
            injury.  The Tasler case has indicated that a wide range of 
 
            injury dates are possible and that any date which is 
 
            supported by substantial evidence will be an acceptable date 
 
            of injury in cumulative trauma cases.
 
            
 
                 Wherefore, it is determined in this case that based on 
 
            these facts the date of injury is the date that the parties 
 
            stipulated that claimant experienced simultaneous symptoms 
 
            in both wrists and that he was diagnosed as having bilateral 
 
            carpal tunnel which was July 12, 1989.
 
            
 
                 It is further determined that claimant's bilateral 
 
            carpal tunnel was caused by a single accident as those words 
 
            are used in Iowa Code 85.34(2)(s).
 
            
 
                 Claimant did not sustain separate injuries to each hand 
 
            pursuant to Iowa code section 85.34(2)(1).
 
            
 
                 It has been determined by the industrial commissioner 
 
            that carpal tunnel syndrome is not an occupational disease.  
 
            Himshoot v. Montezuma Mfg., File Nos. 672778 and 738325 
 
            (App. Dec., April 15, 1988); Noble v. Lamoni Products, File 
 
            Nos. 857575 and 851309 (App. Dec., May 7, 1992) (affirmed by 
 
            the district court and appealed to the supreme court).
 
            
 
                                   ENTITLEMENT
 
            
 
                 It is determined that claimant is entitled to 50 weeks 
 
            of permanent partial disability benefits pursuant to Iowa 
 
            Code section 85.34(2)(s).
 
            
 
                 Dr. Rassekh determined on December 5, 1990, that 
 
            claimant had sustained a 10 percent permanent impairment to 
 
            the left hand and a 10 percent permanent impairment to the 
 
            right hand (Ex. 8).  The parties further stipulated at the 
 
            hearing that these were the correct permanent impairment 
 
            ratings for each hand.  
 
            
 
                 The parties stipulated on the hearing report signed by 
 
            both parties that the injury was the cause of both the 
 
            temporary and permanent disability.
 
            
 
                 Using the Guides to the Evaluation of Permanent 
 
            Impairment, Third Edition (revised), published by the 
 
            American Medical Association, using Table 2 on page 16 it 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            shows that 10 percent of the hand converts to 9 percent of 
 
            the upper extremity.  Table 3 on page 16 shows that 9 
 
            percent of the upper extremity converts to 5 percent of the 
 
            whole person.  Using the combined values chart on page 254, 
 
            5 percent of the whole person for the right hand injury and 
 
            5 percent of the whole person for the left hand injury 
 
            combines to 10 percent of the whole person.  Applying Iowa 
 
            Code section 85.34(2)(s) 10 percent of 500 weeks equals 50 
 
            weeks of permanent partial disability benefits to which 
 
            claimant is entitled for this single accident which occurred 
 
            to both hands.
 
            
 
                               CONCLUSIONS OF LAW 
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law these conclusions of law are made.
 
            
 
                 That claimant sustained a loss to both hands caused by 
 
            a single accident pursuant to Iowa Code section 85.34(2)(s) 
 
            on July 12, 1989.  Simbro v. Delong's Sportswear, 332 N.W.2d 
 
            886 (Iowa 1983), Oscar Mayer Foods Corp. v Tasler, 483 
 
            N.W.2d 824 (Iowa 1992).
 
            
 
                 That the injury was the cause of permanent disability.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
            (1945).  
 
            
 
                 That claimant did not sustain separate injuries to each 
 
            hand pursuant to Iowa Code section 85.34(2)(1).
 
            
 
                 That claimant is entitled to 50 weeks of permanent 
 
            partial disability benefits.  Iowa Code section 85.34(2)(s).
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay to claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of two hundred ninety-two dollars and 09/100 ($292.09) per 
 
            week in the total amount of fourteen thousand six hundred 
 
            four and 50/100 dollars ($14,604.50) commencing on March 12, 
 
            1990, as stipulated to by the parties.
 
            
 
                 That defendants are entitled to a credit for 
 
            thirty-eight (38) weeks of permanent partial disability 
 
            benefits paid to claimant prior to hearing at the rate of 
 
            two hundred ninety-two dollars ($292) per week in the total 
 
            amount of eleven thousand ninety-six dollars ($11,096) as 
 
            stipulated to by the parties on the hearing report and based 
 
            upon a ten percent (10%) permanent impairment to each hand 
 
            as a separate injury.
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That the costs of this action, including the cost of 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the attendance of the court reporter at hearing and the 
 
            transcript of the hearing are charged to defendant pursuant 
 
            to rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 
 
            86.40.
 
            
 
                 That defendant file any claim activity reports 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Sheldon M. Gallner
 
            Attorney at Law
 
            803 Third Ave., P.O. Box 1588
 
            Council Bluffs, IA  51502
 
            
 
            Mr. W. Curtis Hewett
 
            Attorney at Law
 
            25 Main Place
 
            P.O. Box 249
 
            Council Bluffs, IA  51502
 
             
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
                                           1808
 
                                           Filed October 30, 1992
 
                                           Walter M. McManus, Jr.
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DANIEL FICHTER,     
 
                      
 
                 Claimant,                      File No. 941434
 
                      
 
            vs.                             A R B I T R A T I O N 
 
                      
 
            GRIFFIN PIPE PRODUCTS,             D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
                      
 
            ___________________________________________________________
 
            
 
            1808
 
            Bilateral carpal tunnel that occurred in both wrists at the 
 
            same time and was diagnosed as bilateral carpal tunnel on 
 
            the first office visit was determined to be "caused by a 
 
            single accident" as those words are used in Iowa Code 
 
            section 85.34(2)(s) and was compensated on the basis of 500 
 
            weeks and not as separate injuries to each hand pursuant to 
 
            Section 85.34(2)(1).  Several cites.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            LARRY PALMER,    
 
                        
 
                 Claimant,                       File No. 941807
 
                        
 
            vs.                                    A P P E A L
 
                        
 
            IOWA POWER, INC.,                    D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed August 21, 1992 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            
 
            Defendant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                               BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas J. Reilly
 
            Attorney at Law
 
            4900 University, Ste 200
 
            Des Moines, Iowa 50311
 
            
 
            Mr. Cecil L. Goettsch
 
            Mr. D. Brian Scieszinski
 
            Attorneys at Law
 
            801 Grand, Ste 3700
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
        
 
             
 
 
 
                                          51108.50 51401 51401.40 
 
                                          1402.60 1808 2209 1403 1806 
 
                                          2505 2602 2700
 
                                          Filed May 25, 1993
 
                                          BYRON K. ORTON
 
                                          
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            LARRY PALMER,    
 
                        
 
                 Claimant,                      File No. 941807
 
                        
 
            vs.                                  A P P E A L
 
                        
 
            IOWA POWER, INC.,                   D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
             
 
            51108.50 51401 51401.40 1402.60
 
            
 
            The only treating physician said the injury caused the 
 
            permanent disability.  He was preferred over defendant's 
 
            physician who testified live.
 
            
 
            1808 2209
 
            
 
            The injury was determined to be bilateral cubital tunnel 
 
            which was caused by a single accident.  Iowa Code section 
 
            85.34(2)(s) and Torgerson v. Webster City Custom Meats, file 
 
            number 863533 (App. Dec. 1992).
 
            
 
            1403 1806 2505 2602 2700
 
            
 
            It was determined that claimant's refusal to have left 
 
            cubital tunnel surgery performed which was recommended by 
 
            the treating physician was reasonable and claimant's 
 
            entitlement to permanent partial disability benefits should 
 
            not be reduced for reasonable refusal of medical care.  The 
 
            decision reviews Stufflebean and all of the existing known 
 
            agency cases for the evolution of this point of law up to 
 
            the present time with numerous cites from Larson.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LARRY PALMER,                 :
 
                                          :
 
                 Claimant,                :      File No. 941807
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            IOWA POWER, INC.,             :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Larry 
 
            Palmer, claimant, against Iowa Power, Inc., employer and 
 
            self-insured defendant, for benefits as the result of an 
 
            injury which occurred on October 10, 1989.  A hearing was 
 
            held in Des Moines, Iowa, on July 20, 1992, and the case was 
 
            fully submitted at the close of the hearing.  Claimant was 
 
            represented by Thomas J. Reilly.  Defendant was represented 
 
            by Cecil L. Goettsch.  The record consists of the testimony 
 
            of Larry Palmer, claimant; David Berg, D.O., joint exhibits 
 
            A through K and claimant's exhibits 1 and 2.  
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability; and,
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the nature and extent of benefits to 
 
            which he is entitled.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                        CAUSAL CONNECTION-ENTITLEMENT
 
            
 
                 It is determined that the injury of October 10, 1989, 
 
            was the cause of permanent disability.
 
            
 
                 It is further determined that claimant sustained an 
 
            injury to both elbows of bilateral cubital tunnel caused by 
 
            a single accident pursuant to Iowa Code section 85.34(2)(s).
 
            
 
                 It is further determined that claimant is entitled to 
 
            60 weeks of permanent partial disability benefits based upon 
 
            a 12 percent permanent impairment to the body as a whole 
 
            which is based upon a 5 percent permanent impairment to the 
 
            right upper extremity and 15 percent impairment to the left 
 
            upper extremity.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                 Claimant's recent past medical history of work-related 
 
            claims includes an anterior cervical fusion performed in 
 
            1986 after he was struck in the head by a swinging back hoe 
 
            and a right and a left carpal tunnel surgery in 1987 caused 
 
            by the use of his hands at work.  Claimant has been paid for 
 
            these injuries.  
 
            
 
                 With respect to this injury, Arnis B. Grundberg, M.D., 
 
            the only treating physician, testified on June 30, 1992, by 
 
            deposition, that as far back as May 10, 1988, claimant 
 
            complained of some discomfort in his elbows (exhibit 2, page 
 
            6; ex. A, p. 10).  He treated claimant for bilateral medial 
 
            epicondylitis of the elbows on January 3, 1989 and April 28, 
 
            1989 (ex. A, pp. 9-10).  On October 10, 1989, he diagnosed 
 
            probable bilateral cubital tunnel syndrome (ex. A, pp. 
 
            10-11).  An EMG ordered by Dr. Grundberg was performed on 
 
            December 27, 1989, by William Koenig, M.D., and confirmed 
 
            bilateral cubital tunnel syndrome (ex. C, p. 3; ex. 2, p. 
 
            8).  On January 2, 1990, Dr. Grundberg confirmed a diagnosis 
 
            of bilateral cubital tunnel syndrome (ex. A, p. 14; ex. 2, 
 
            p. 6).  The doctor performed a decompression of the right 
 
            cubital tunnel on February 1, 1990 (ex. A, p. 13; ex. 2, p. 
 
            9).  Dr. Grundberg stated that claimant was referred to him 
 
            by David Berg, D.O., an industrial medicine doctor (ex. 2, 
 
            pp. 6-7).  
 
            
 
                 Dr. Grundberg stated that both the left and right 
 
            cubital tunnel were caused by the repetitive work that 
 
            claimant performs with his hands and arms at his place of 
 
            employment (ex. 2, p. 7).  The doctor testified that the 
 
            symptoms which claimant exhibited were pain on the inside of 
 
            both elbows and numbness and tingling in his hands.  He 
 
            added that these symptoms are consistent with bilateral 
 
            cubital tunnel (ex. 2, p. 8).  
 
            
 
                 The surgery for the right cubital tunnel release 
 
            consisted of a four-inch incision made on the inside of the 
 
            elbow along the course of the ulnar nerve (ex. 2, pp. 9-10).  
 
            Claimant was released to return to work on March 12, 1990, 
 
            with some limitations, and was released to work without 
 
            restrictions of any kind on April 16, 1990.  The doctor also 
 
            stated that cubital tunnel syndrome was brought on by hard 
 
            work so that when claimant was off work for the right 
 
            cubital tunnel release, it rested his left arm and his 
 
            symptoms probably improved in the left arm as well (ex. 2, 
 
            pp. 10-13; ex. A, pp. 14-15).
 
            
 
                 Dr. Grundberg testified that on June 3, 1991, he 
 
            assessed a 5 percent permanent impairment of the right arm 
 
            and a 15 percent permanent impairment of the left arm based 
 
            upon (1) claimant's symptoms; (2) the amount of strength in 
 
            his opinion; (3) his opinion of claimant's ability to carry 
 
            out his work with his arms; and (4) in some degree on the 
 
            basis of dexterity (ex. 2, p. 14; ex. 1).  He added later 
 
            that he also took into consideration the objective 
 
            measurements provided by the electromyogram test, his 
 
            discussion with claimant relative to pain and fatigue and 
 
            his experience from past history of what an arm is like 
 
            without a surgical procedure for this particular problem 
 
            (ex. 2, pp. 32, 35).  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Dr. Grundberg further testified that his examination of 
 
            claimant on June 30, 1992, the date of the deposition, did 
 
            not cause him in any way to change his impairment rating 
 
            opinions that were determined by him back on June 3, 1991 
 
            (ex. 2, pp. 14-15).  Dr. Grundberg stated, "He still has the 
 
            impairment as I indicated previously, yes, and he still has 
 
            trouble." (ex. 2, p. 16).
 
            
 
                 Defendant's counsel pointed out that with respect to 
 
            strength that when Dr. Grundberg's grip strength 
 
            measurements from May 25, 1990, were compared with those of 
 
            June 30, 1992, it indicated that claimant had more grip 
 
            strength in his unoperated left arm than he had in his 
 
            surgically corrected right arm.  Dr. Grundberg explained 
 
            that after the ulnar nerve decompression performed on 
 
            February 1, 1990, that claimant developed right elbow 
 
            problems which he described as lateral epicondylitis of the 
 
            right elbow which is also commonly known as tennis elbow.  
 
            The doctor testified, "If he didn't have lateral 
 
            epicondylitis of the elbow, I suspect that his strength 
 
            would be stronger on the right than it would be on the 
 
            left." (ex. 2, p. 31).
 
            
 
                 The doctor acknowledged that he treated claimant with 
 
            three cortisone injections for the right elbow lateral 
 
            epicondylitis on August 31, 1990; January 22, 1991; and 
 
            February 19, 1991 (ex. A, pp. 19-20).  Dr. Grundberg 
 
            explained that the right elbow lateral epicondylitis was the 
 
            factor impairing the strength in the right hand (ex. 2, pp. 
 
            19-22).  Dr. Grundberg said claimant had a fairly 
 
            significant tennis elbow on the right side (ex. 2, p. 35).
 
            
 
                 With respect to claimant's ability to perform work, 
 
            defendant's counsel pointed out that claimant was returned 
 
            to work without any restrictions and has performed his work 
 
            since April 16, 1990, and therefore, there would not be any 
 
            reason to give claimant an impairment rating for his left 
 
            upper extremity because of the left cubital tunnel.  Dr. 
 
            Grundberg explained, "Well, he is impaired in his work 
 
            because of all those other factors and because he has pain, 
 
            but he's just doing full duty even though he has some 
 
            impairment at the elbow."  (ex. 2, pp. 22-25).  When asked 
 
            whether the left cubital tunnel impairment would affect 
 
            claimant's work activities, Dr. Grundberg responded, "I 
 
            think it will cause pain when he works, and usually the arm 
 
            fatigues easier than the one on the other side and is 
 
            clumsy." (ex. 2, p. 35).
 
            
 
                 The doctor further explained that with respect to 
 
            dexterity, "When somebody has a pinched nerve or a cubital 
 
            tunnel syndrome, their arm tends to fatigue easy and then it 
 
            becomes clumsy, so I'm talking about clumsiness."  (ex. 2, 
 
            p. 25). 
 
            
 
                 With respect to symptoms, Dr. Grundberg acknowledged 
 
            that during the last two visits prior to his issuing the 
 
            impairment ratings, that his notes showed that claimant 
 
            voiced no subjective complaints about his left upper 
 
            extremity, but Dr. Grundberg explained that after claimant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            declined to have surgery on his left elbow, as he 
 
            recommended, then he did not make any further notes about 
 
            the left elbow because that is a known quantity and he 
 
            concentrated his efforts on claimant's current complaint, 
 
            which was the lateral epicondylitis of the right elbow (ex. 
 
            2, pp. 26-29).  The doctor speculated that claimant declined 
 
            surgery because he did not like surgery (ex. 2, p. 29).  At 
 
            another point, Dr. Grundberg testified that claimant may be 
 
            afraid of surgery (ex. 2, p. 33).  In view of the fact that 
 
            claimant underwent an anterior cervical fusion in 1986, a 
 
            right and a left carpal tunnel release in 1987 and a right 
 
            cubital tunnel release in 1990, this tends to be 
 
            understandable.
 
            
 
                 Dr. Grundberg, a board certified orthopedic surgeon who 
 
            has been in practice for 20 years, estimated that if surgery 
 
            were performed on the left cubital tunnel, that claimant 
 
            would be left with a 5 percent permanent impairment of the 
 
            left arm.  Dr. Grundberg testified that his criteria was 
 
            based upon the Guides to the Evaluation of Permanent 
 
            Impairment, published by the American Medical Association 
 
            (ex. 2, p. 30).
 
            
 
                 Dr. Grundberg further explained that his impairment 
 
            rating was based upon a positive EMG for the left arm (ex. 
 
            2, p. 28) and that it was also based on information from 
 
            claimant which he did not record in his notes after claimant 
 
            declined to have surgery on the left arm (ex. 2, p. 30).  
 
            
 
                 Dr. Grundberg testified that it would appear from his 
 
            records that the symptoms in both arms manifested themselves 
 
            at approximately the same time (ex. 2, p. 33).  This is true 
 
            because the medical records usually referred to both elbows 
 
            and not just one elbow (ex. A, pp. 10-12, 14-15, 19-20, 
 
            31-36, 39-40).  
 
            
 
                 David T. Berg, D.O., testified that he is an 
 
            occupational medicine doctor and serves as company physician 
 
            to 200 companies for occupational diseases and illnesses.  
 
            He had reviewed all of the medical records and claimant's 
 
            deposition of June 17, 1992.  He personally examined 
 
            claimant on June 25, 1991, and determined that there was no 
 
            evidence of cubital tunnel syndrome based on his physical 
 
            examination.  He further determined that claimant had 
 
            sustained no permanent impairment based upon the principles 
 
            used in the Guides to the Evaluation of Permanent 
 
            Impairment, published by the American Medical Association.  
 
            
 
                 Dr. Berg testified that a study by the Mayo Clinic 
 
            disclosed that a random sampling of people taken off the 
 
            street for an EMG disclosed that 10 percent of them had an 
 
            abnormal EMG even though they had no clinical symptoms of 
 
            any problems.  He examined the EMG report in this case, but 
 
            was unable to interpret it beyond the conclusion rendered by 
 
            Dr. Koenig.  Dr. Berg further determined that claimant was 
 
            not a candidate for surgery for a cubital tunnel release of 
 
            the left elbow.  He believed that claimant had more problems 
 
            with his right elbow than with his left elbow.  
 
            
 
                 Dr. Berg said it is difficult to assess claimant's 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            impairment because you usually compare the good side with 
 
            the bad side and in claimant's case, there is no good side.  
 
            It was Dr. Berg's opinion that an EMG was a poor test to 
 
            diagnose cubital tunnel and he felt that it was better to go 
 
            by the doctor's clinical examination of claimant.
 
            
 
                 On cross-examination, Dr. Berg acknowledged that both 
 
            arms are abnormal and that he would defer to Dr. Koenig as a 
 
            competent specialist to conduct and report EMG results.  He 
 
            acknowledged that he referred claimant to Dr. Grundberg for 
 
            his carpal tunnel syndrome in 1986.  He acknowledged that 
 
            Dr. Grundberg had treated hundreds of cubital tunnel 
 
            syndromes and that he would perform surgery based upon 
 
            clinical symptoms even though there was a normal EMG.  He 
 
            acknowledged that he did not have the EMG report before him 
 
            when he examined claimant on June 25, 1991.  He used the AMA 
 
            Guides and based his zero impairment rating upon strength 
 
            and range of motion.  
 
            
 
                 Dr. Berg stated that he did not get a positive Tinel 
 
            sign on June 25, 1991.  He said the Tinel sign is that 
 
            percussion of the unlar nerve will produce pain.  It is 50 
 
            to 60 percent reliable.  Dr. Grundberg also indicated that 
 
            the best objective symptom is the fact that the patient has 
 
            discomfort when you push on the ulnar nerve.  Dr. Grundberg 
 
            diagnosed bilateral cubital tunnel (ex. 2, p. 18) which 
 
            indicates that he apparently got a positive Tinel's sign.
 
            
 
                 The written notes of Dr. Berg at the time of his 
 
            examination on June 25, 1991, indicate that claimant told 
 
            him he had no strength loss and that claimant denied any 
 
            sensory changes.  Claimant had a full passive and active 
 
            range of motion.  There was no tenderness over the cubital 
 
            tunnels or lateral epicondyle.  Percussion over the cubital 
 
            tunnels bilaterally did not produce any paresthesias.  There 
 
            was no muscle atrophy.  Dr. Berg diagnosed left cubital 
 
            tunnel based on history and EMG finding.  He stated claimant 
 
            did not want left cubital tunnel surgery and that claimant 
 
            was not a candidate for this surgery.  He said claimant was 
 
            tolerating his duties as a lineman fairly well without much 
 
            difficulty.  He stated claimant was asymptomatic at the time 
 
            of his examination with no motor or neurological changes.  
 
            Dr. Berg said claimant had not sustained a permanent 
 
            impairment (ex. B, pp. 3-4).
 
            
 
                 In this case, Dr. Grundberg's opinion is preferred over 
 
            the opinion of Dr. Berg.  Dr. Grundberg was claimant's only 
 
            treating physician and had the responsibility for the 
 
            success or failure of claimant's recovery.  He had a greater 
 
            opportunity to observe and evaluate claimant.  Dr. Berg only 
 
            saw claimant one time for the left cubital tunnel syndrome 
 
            for the purpose of producing evidence to defend this case.  
 
            Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 
 
            192 (Iowa 1985). 
 
            
 
                 Furthermore, a doctor's expertise and board 
 
            certification may accord his testimony greater weight.  
 
            Reiland v. Palco, Inc., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 56 (1975); Dickey v. ITT 
 
            Continental Baking Co., Thirty-fourth Biennial Report of the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            Industrial Commissioner 89 (1979).  In this case, Dr. 
 
            Grundberg is a board certified orthopedic surgeon 
 
            specializing in the upper extremities with 20 years of 
 
            experience who authored an article on ulnar tunnel syndrome 
 
            in the Journal of the Hand, published by the British Society 
 
            for Surgery of the Hand, in February 1984; whereas, Dr. Berg 
 
            is an occupational medicine doctor and does not have the 
 
            same expertise with respect to ulnar tunnel syndrome as Dr. 
 
            Grundberg.  
 
            
 
                 Dr. Berg felt claimant could still do his job even if 
 
            he was actually 15 percent impaired.  He also acknowledged 
 
            that the AMA Guides allow 5 percent impairment for pain 
 
            which persists for six months along with recurrent physical 
 
            symptoms.
 
            
 
                 Claimant testified that he is an 18-year employee of 
 
            employer currently serving as a line crew foreman.  Prior to 
 
            that he was a lineman, driver, tree trimmer, and worked in 
 
            the garage.  His duties are quite varied.  His job 
 
            description appears in the record at two different places as 
 
            a line foreman.  He is a working foreman and performs work 
 
            along side the driver and lineman in his three-man crew.  He 
 
            acknowledged that he has lost no time from work.  He still 
 
            can perform his job but does so with pain and difficulty.  
 
            
 
                 Claimant demonstrated how large electrical insulating 
 
            gloves irritate his arms when he wears them.  He testified 
 
            that the rubber sleeves which insulate his arms from 
 
            electrical current also irritate his arms.  The resistance 
 
            of the heavy rubber irritates his hands and elbows.  His 
 
            duties include setting poles and shoveling dirt or anything 
 
            else that he might be required to do whether it be light or 
 
            heavy work.  Claimant testified that he can and will do his 
 
            work although it is difficult and painful.  He said he did 
 
            not intend to have surgery on the left elbow unless and 
 
            until it gets to the point where he cannot tolerate it (ex. 
 
            D, p. 54).
 
            
 
                 The fact that the bilateral cubital tunnel occurred 
 
            simultaneously, or to use the words of the statute, was 
 
            "caused by a single accident" is established by the medical 
 
            records of Dr. Grundberg and the testimony of Dr. Grundberg 
 
            previously summarized.  In addition, claimant testified 
 
            several times that both elbows became symptomatic at the 
 
            same time (ex. D, pp. 11, 14, 15, 25-27).  Iowa Code section 
 
            85.34(2)(s).  
 
            
 
                 Dr. Grundberg testified that if claimant had surgery on 
 
            his left cubital tunnel, that his impairment might be about 
 
            5 percent.  This is his testimony:
 
            
 
                 Q.  And if surgery were performed, what is your 
 
                 opinion as to the impairment which he would have 
 
                 after the surgery?
 
            
 
                 A.  Oh, an average of about 5 percent impairment.
 
            
 
                 Q.  So had he chosen to have the surgery, you 
 
                 think that in all likelihood that his impairment 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
                 would not have exceeded 5 percent?
 
            
 
                 A.  That's the usual, yes.
 
            
 
            (exhibit 2, page 29)
 
            
 
                 Occasionally, an employee will refuse medical 
 
            treatment.  Under those circumstances, the reasonableness of 
 
            the refusal will be examined.  An unreasonable refusal can 
 
            result in a loss of benefits.  Lawyer and Higgs, Iowa 
 
            Workers' Compensation--Law and Practice, (2d ed.) section 
 
            15-3, page 162.
 
            
 
                 The refusal of reasonable medical treatment is 
 
            discussed in 1 Larson, Workmen's' Compensation Law, section 
 
            13.22 beginning at page 3-595.  This is not a case of rash 
 
            conduct impeding recovery.  1 Larson, section 13.22(a).  
 
            Likewise, it is not a case of treatment involving no risk.  
 
            1 Larson, section 13.22(b).  Claimant has not refused 
 
            examinations or tests.  1 Larson section 13.22(c).  Claimant 
 
            has complied with weight reduction recommendations and has 
 
            lost weight.  1 Larson, section 13.22(d).  
 
            
 
                 Claimant does have conflicting opinions from different 
 
            doctors.  1 Larson, section 13.22(e).  Dr. Grundberg has 
 
            recommended a left cubital tunnel release.  Dr. Berg has 
 
            recommended against it.  
 
            
 
                 If the risk of surgery is insubstantial and the 
 
            probability of cure is high, then refusal will result in a 
 
            termination of benefits.  But if there is a real risk 
 
            involved and a considerable chance that the operation will 
 
            result in no improvement or perhaps even in a worsening of 
 
            the condition, then claimant cannot be forced to run the 
 
            risk at the peril of losing his statutory compensation 
 
            rights.  In the case of some of the commonest operations 
 
            such as hernia and intervertebral disc most courts will not 
 
            disturb a finding that refusal to submit to an operation is 
 
            reasonable, because the question is a complex fact judgement 
 
            involving a multitude of variables, including claimant's age 
 
            and physical condition, his previous surgical experience, as 
 
            well as the percentages of success or failure of the 
 
            surgery.  1 Larson, section 13.22(f).
 
            
 
                 Dr. Grundberg's records show that the right cubital 
 
            tunnel surgery involved a four-inch incision on claimant's 
 
            right arm.  Claimant demonstrated in the courtroom a 
 
            four-inch incision on the inner aspect of his upper arm just 
 
            above the elbow.  Following the surgery, claimant was off 
 
            work for five and one-half weeks.  Dr. Grundberg testified 
 
            that claimant sustained a 5 percent permanent impairment to 
 
            the right upper extremity due to the surgery.  Thus, the 
 
            surgery proposed is a substantial invasive procedure with 
 
            substantial permanent consequences.  
 
            
 
                 Following the right cubital tunnel surgery, claimant 
 
            has continued to have pain, tingling and numbness in his 
 
            right upper extremity.  Thus, it would appear that the right 
 
            cubital tunnel surgery did not provide any significant 
 
            improvement to the right upper extremity.  Worse, since the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            surgery, claimant has developed right lateral epicondylitis 
 
            for which he has received three cortisone injections which 
 
            have not provided him with any permanent relief.  Thus, 
 
            claimant indicated that he did not feel like the right 
 
            cubital tunnel surgery was successful.  
 
            
 
                 Furthermore, claimant had a right and a left carpal 
 
            tunnel surgery and still feels numbness and tingling in both 
 
            hands.  In addition to that, claimant has also received an 
 
            anterior cervical fusion.  Therefore, claimant's judgement 
 
            about whether he should receive additional left cubital 
 
            tunnel surgery is certainly based upon a more than 
 
            reasonable amount of actual experience.  
 
            
 
                 Claimant was 42 years old at the time of the injury and 
 
            45 years old at the time of the hearing.  He is an 18-year 
 
            career employee of employer.  As a line crewman, the use of 
 
            his hands and arms are essential to perform the duties of 
 
            his employment.  Claimant is in no position at this age and 
 
            state of health to try to find work in the competitive labor 
 
            market and expressed the desire to continue to perform this 
 
            job with this employer.  It is certainly reasonable to 
 
            believe that if left cubital tunnel surgery would improve 
 
            the condition of his left arm, based upon his past 
 
            experience with his right arm, his right and left carpal 
 
            tunnel surgeries, and his anterior cervical fusion, that he 
 
            would in all probability quickly submit to the left cubital 
 
            tunnel surgery if there was some evidence that it would 
 
            improve his condition.  Claimant testified that he does not 
 
            want the left cubital tunnel surgery until he can no longer 
 
            stand the pain and debility in his left upper extremity.
 
            
 
                 Under these circumstances it is determined that 
 
            claimant's refusal to submit to left cubital tunnel surgery 
 
            is not unreasonable.  Stated conversely, claimant's refusal 
 
            of left cubital tunnel surgery under the facts of this case 
 
            is reasonable.
 
            
 
                 Other than the fact that "on average," the "usual" 
 
            impairment rating after surgery would be 5 percent, there is 
 
            no other evidence that the condition of his left upper 
 
            extremity, to wit, the pain, tingling and numbness, would be 
 
            improved.  Therefore, it is determined that the risk of 
 
            surgery is substantial and the probability of cure is 
 
            questionable at best.  As in the case of all surgeries there 
 
            is also a percentage of possibility of a worsening of his 
 
            condition, such as development of left lateral epicondylitis 
 
            which would require regular cortisone injections.
 
            
 
                 Claimant has clearly stated he does not want the left 
 
            cubital tunnel surgery until it becomes absolutely necessary 
 
            and that he has a fear of the surgery.  Claimant's fear is 
 
            not merely an empty subjective fear of surgery as such, but 
 
            claimant's fear has some substantial basis in claimant's 
 
            experience.  1 Larson, section 13.22(f) pages 645, 3-646.
 
            
 
                 The general rule is that a reasonable refusal to except 
 
            medical care does not deprive a claimant of his right to 
 
            compensation.  Stufflebean v. City of Fort Dodge, 233 Iowa 
 
            438, 9 N.W.2d 281 (1943).
 

 
            
 
            Page   9
 
            
 
            
 
            
 
                 In Stufflebean, the industrial commissioner fashioned a 
 
            compromise award and permitted claimant to recover the 
 
            estimated costs of the surgery and weekly benefits that 
 
            would flow from it and then concomitantly cut off all future 
 
            medical benefits.  Subsequently, former Industrial 
 
            Commissioner Robert C. Landess, disposed of a similar case 
 
            in the same manner.  Schrobilgen v. Maharishi International 
 
            University, file number 758657 (App. Dec. 1986).  Deputy 
 
            Industrial Commissioner Michael G. Trier disposed of another 
 
            case in the same manner.  Pinter v. Fred Carlson Co., Inc., 
 
            file numbers 796964 & 743088 (1987) (appealed and settled).
 
            
 
                 Actually, there is no statutory provision to dispose of 
 
            a case in this manner.  It appears that the supreme court 
 
            simply stated in Stufflebean, in 1943, that in order to 
 
            provide a form of rough justice (speedy, summary, informal, 
 
            and untechnical) in order to comply with the legislative 
 
            intent of the workers' compensation law, the industrial 
 
            commissioner was allowed to accomplish substantial justice 
 
            by a compromise award and it would not be characterized as 
 
            reversible error.  Stufflebean, 233 Iowa 438, 9 N.W.2d 281.  
 
            
 
                 It was pointed out by former Deputy Industrial 
 
            Commissioner Barry Moranville writing an appeal decision for 
 
            the industrial commissioner that Stufflebean did not 
 
            determine the exact issue of whether an unreasonable refusal 
 
            to have surgery would result in a loss of compensation.  
 
            Bruneau v. Insulation Services, Inc., I Iowa Industrial 
 
            Commissioner Reports 34 (App. Dec. 1981).  It should be 
 
            noted, too, that Stufflebean determined that claimant's 
 
            refusal of surgery was not so unreasonable as to deprive him 
 
            of the compromise award fashioned by the commissioner.  
 
            Former Deputy Moranville found in the Bruneau case that:  
 
            "Regardless of that source of claimant's fear, if the trier 
 
            of fact believes that fear to be sincere, as it were, and if 
 
            the surgery itself is dangerous, claimant should not be 
 
            deprived of any compensation benefits."  Bruneau, I Iowa 
 
            Industrial Commissioner Report 34 (1981).
 
            
 
                 Likewise, in this case it is determined that claimant's 
 
            refusal of surgery was reasonable and that his fear of 
 
            further surgery is sincere and that claimant here should not 
 
            be deprived of any workers' compensation benefits.
 
            
 
                 In 1979 former Deputy Industrial Commissioner Helmut 
 
            Mueller did not arrange a compromise award based upon the 
 
            estimated medical and weekly benefits if claimant would have 
 
            had surgery. Rather, former Deputy Industrial Commissioner 
 
            Mueller simply refused to reduce claimant's award for 
 
            refusing to have back surgery and did confirm claimant's 
 
            right to refuse medical care. However, former Deputy Mueller 
 
            did cut off claimant's future right to medical benefits.  
 
            Former Deputy Mueller stated, "The award made in this matter 
 
            reflects this deputy's best judgment as to the extent of the 
 
            claimant's disability chargeable to this employer, and is 
 
            not a reduction of the claimant's entitlement of industrial 
 
            disability." Adams v. Happel and Sons, Inc., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner, 11 (1979).  
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
                 Only two known agency cases have determined that 
 
            claimant's refusal of medical care was unreasonable.  
 
            Claimant refused to have a wound debrided and former 
 
            Industrial Commissioner Landess reduced claimant's healing 
 
            period benefits from six weeks to four weeks in a judgement 
 
            call on close facts which could have possibly been 
 
            determined either way.  Johnson v. Tri-City Fabricating & 
 
            Welding Co., Thirty-third Biennial Report of the Industrial 
 
            Commissioner 179 (App. Dec. 1977).  Former Deputy Steven E. 
 
            Ort denied benefits for carpal tunnel syndrome where 
 
            claimant refused even conservative care which would have 
 
            remedied his condition.  Collins v. John Deere Davenport 
 
            Works, vol. 2 no. 1 State of Iowa Industrial Commissioner 
 
            Decisions, 305 (1984).  In this case, however, it is 
 
            determined that claimant's refusal of medical care was not 
 
            unreasonable.
 
            
 
                 A number of cases have found that claimant's refusal of 
 
            surgery was reasonable and awarded benefits without the 
 
            compromise award of estimated medical benefits and weekly 
 
            benefits being paid in exchange for a cut off of future 
 
            medical benefits.  Wachsman v. Mason City Tile and Marble 
 
            Co., Thirty-second Biennial Report of the Industrial 
 
            Commissioner, 165 (1975); Decker v. Hartford Auto Sales, 
 
            Inc., II Iowa Industrial Commissioner Report, 105 (1982); 
 
            Smith v. Wayne County, vol. 1 no. 1 State of Iowa 
 
            Industrial Commissioner Decisions, 232 (1984); Arnaman v. 
 
            Mid-American Freightlines, vol 1. no. 3 State of Iowa 
 
            Industrial Commissioner Decisions, 497 (1985).
 
            
 
                 In the decisions filed in recent years, reasonable 
 
            refusal of surgery has not resulted in the reduction of 
 
            either medical benefits or weekly benefits.  No compromise 
 
            award arrangements have been effected.  Future medical 
 
            benefits have not been cut off.  Barkdoll v. American 
 
            Freight System, Inc., file numbers 816913 & 778471 (App. 
 
            Dec. 1988); Hardy v. Abell-Howe Co., file number 814126 
 
            (App. Dec. 1990); Kirkbride v. Wellborn Industries, Ltd., 
 
            file number 847423 (1991).
 
            
 
                 In summary, it has been determined that there should be 
 
            no reduction in workers' compensation weekly benefits when 
 
            the refusal of medical care, or more specifically, surgery, 
 
            was determined to be reasonable.  The period of compromise 
 
            awards, for which there is no express statutory authority, 
 
            was short lived and appears to be past history.  Therefore, 
 
            it is determined that there should be no reduction in 
 
            claimant's award because of his reasonable refusal to submit 
 
            to left cubital tunnel surgery.
 
            
 
                 Furthermore, it is questionable whether the industrial 
 
            commissioner has the authority to terminate future medical 
 
            benefits since it was the intent of the legislature to 
 
            provide lifetime medical benefits for workers' compensation 
 
            injuries.  Iowa Code section 85.26(2); Lawyer and Higgs, 
 
            Iowa Workers' Compensation--Law and Practice, (2d ed.) 
 
            section 11-8, page 97.
 
            
 
                 Moreover, simply because the average, or usual percent, 
 
            of permanent impairment after a cubital tunnel surgery is 5 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            percent, this determination is arbitrary and is only 
 
            speculative with respect to any one given individual.  It is 
 
            entirely possible that claimant could be in the group which 
 
            shows no improvement after the surgery, or worse, claimant 
 
            might be in the group that is more impaired after the 
 
            surgery than he was before the surgery.  Even if claimant's 
 
            future impairment, after the left cubital tunnel surgery, 
 
            could be determined with accuracy, there is still no 
 
            statutory basis or case law basis on which to reduce the 
 
            claimant's workers' compensation benefits for the reasonable 
 
            refusal of surgery.
 
            
 
                 Wherefore, it is determined that claimant should not 
 
            have his benefits reduced for failure to comply with 
 
            treatment.  
 
            
 
                 Dr. Grundberg, the treating board certified orthopedic 
 
            surgeon, testified that claimant sustained a 5 percent 
 
            permanent impairment to his right upper extremity and a 15 
 
            percent permanent impairment to his left upper extremity.  
 
            Five percent of the upper extremity converts to 3 percent of 
 
            the body as a whole.  Fifteen percent of the upper extremity 
 
            converts to 9 percent of the body as a whole.  Guides to the 
 
            Evaluation of Permanent Impairment, 3d ed., revised, table 
 
            3, page 16.  Using the combined values chart of the Guides, 
 
            on page 254, 9 percent and 3 percent combine to 12 percent 
 
            of the whole person.  Twelve percent of 500 weeks is 60 
 
            weeks of benefits to which claimant is entitled.  Iowa Code 
 
            section 85.34(2)(s).
 
            
 
                 Wherefore, in conclusion, it is determined that the 
 
            injury of October 10, 1989, was the cause of permanent 
 
            impairment to both arms caused by a single accident and 
 
            claimant is entitled to 60 weeks of permanent partial 
 
            disability benefits.  Torgerson v. Webster City Custom 
 
            Meats, file number 863533 (App. Dec. 1992).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That the injury of October 10, 1989, was the cause of 
 
            permanent impairment and disability.  Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. 
 
            Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant has sustained an injury to both arms 
 
            caused by a single accident.  Iowa Code section 85.34(2)(s); 
 
            Torgerson v. Webster City Custom Meats, file number 863533 
 
            (App. Dec. 1992).
 
            
 
                 That claimant has sustained a 5 percent permanent 
 
            impairment to the right arm and a 15 percent permanent 
 
            impairment to the left arm which percentages convert and 
 
            combine to 12 percent of the whole person and that claimant 
 
            is entitled to 60 weeks of permanent partial disability 
 
            benefits.  Iowa Code section 85.34(2)(s).
 
            
 
                                      ORDER
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay to claimant sixty (60) weeks of 
 
            permanent partial disability benefits at the stipulated rate 
 
            of five hundred eighty-four and 25/100 dollars ($584.25) per 
 
            week in the total amount of thirty-five thousand and 
 
            fifty-five dollars ($35,055) commencing on March 12, 1990, 
 
            as stipulated to by the parties.
 
            
 
                 That defendant is entitled to a credit for twelve point 
 
            five (12.5) weeks of permanent partial disability benefits 
 
            paid to claimant prior to hearing at the rate of five 
 
            hundred eighty-four and 25/100 dollars ($584.25) in the 
 
            total amount of seven thousand three hundred three and 
 
            13/100 dollars ($7,303.13) as stipulated to by the parties.
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That the costs of this action are charged to defendant 
 
            pursuant to Iowa Code section 86.40 and rule 343 IAC 4.33.
 
            
 
                 
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of August, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Thomas J. Reilly
 
            Attorney at Law
 
            4900 University STE 200
 
            Des Moines, Iowa  50311
 
            
 
            Mr. Cecil Goettsch
 
            Attorney at Law
 
            801 Grand Ave, STE 3700
 
            Des Moines, Iowa  50309-2727
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                          51108.50 51401 51401.40 
 
                                          1402.60 1808 2209 1403 1806 
 
                                          2505 2602 2700
 
                                          Filed August 21, 1992
 
                                          Walter R. McManus, Jr.
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LARRY PALMER,                 :
 
                                          :
 
                 Claimant,                :      File No. 941807
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            IOWA POWER, INC.,             :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            51108.50 51401 51401.40 1402.60
 
            The only treating physician said the injury caused the 
 
            permanent disability.  He was preferred over defendant's 
 
            physician who testified live.
 
            
 
            1808 2209
 
            The injury was determined to be bilateral cubital tunnel 
 
            which was caused by a single accident.  Iowa Code section 
 
            85.34(2)(s) and Torgerson v. Webster City Custom Meats, file 
 
            number 863533 (App. Dec. 1992).
 
            
 
            1403 1806 2505 2602 2700
 
            It was determined that claimant's refusal to have left 
 
            cubital tunnel surgery performed which was recommended by 
 
            the treating physician was reasonable and claimant's 
 
            entitlement to permanent partial disability benefits should 
 
            not be reduced for reasonable refusal of medical care.  The 
 
            decision reviews Stufflebean and all of the existing known 
 
            agency cases for the evolution of this point of law up to 
 
            the present time with numerous cites from Larson.
 
            
 
 
            
 
            
 
            
 
            
 
                
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JAMES FEELEY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 941819
 
            DEPARTMENT OF REVENUE &       :
 
            FINANCE,                      :
 
                                          :     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.              :
 
            ------------------------------------------------------------
 
                           STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, James Feeley, against his former employer, 
 
            Department of Revenue & Finance, and the State of Iowa.  
 
            Claimant sustained an injury on February 14, 1990, which 
 
            arose out of and in the course of his employment.
 
            
 
                 The record in the case consists of testimony from the 
 
            claimant; defendants' exhibits 1 through 3; and, claimant's 
 
            exhibits A through F.
 
            
 
                                      ISSUES
 
            
 
                 The parties have submitted the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant is entitled to permanent partial 
 
            disability benefits; and,
 
            
 
                 2.  Whether claimant is entitled to medical benefits as 
 
            governed by Iowa Code section 85.27.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, James Feeley, was born on June 27, 1958.  At 
 
            the time of the hearing, he was 35 years of age.  Claimant 
 
            graduated from Dowling High School in 1976.
 
            
 
                 Claimant has pursued additional education, including 
 
            one quarter at Boone Junior College, in Boone, Iowa; four 
 
            years at Grandview College, where he earned a bachelor of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            arts degree in journalism; one year of graduate school at 
 
            Drake University, where he studied for a masters degree in 
 
            education and counseling; one year at Upper Iowa University; 
 
            and one year at Simpson College, where he earned a 
 
            certificate in journalism, speech and physical education.
 
            
 
                 Since graduation from high school, claimant has pursued 
 
            a career in baseball, and until 1989, had various pitching 
 
            contracts within national and international leagues for 
 
            pitching.  Claimant has pitched for the Oakland A's minor 
 
            league, Italian leagues and Holland leagues.
 
            
 
                 Throughout his baseball career, claimant has also held 
 
            various other employment.  He has worked as a busboy for 
 
            Perkins Restaurant, earning minimum wage; he worked for UPS 
 
            as a loader and unloader from 1977 through 1979; in 1980, 
 
            claimant worked as a construction worker and helped place 
 
            running tracks in and around the Des Moines metro area.
 
            
 
                 In 1981, claimant earned his first minor league 
 
            baseball pitching contract.  As such, he was required to 
 
            train and work out three and one-half to four and one-half 
 
            hours per day, four to six days per week.  Exercises 
 
            included playing catch, running short and long distances, 
 
            biking, running and pitching.  Claimant stated that his 
 
            pitching strength was his speed, and was able to pitch 95 to 
 
            96 miles per hour.  Prior to February 14, 1990, claimant had 
 
            no difficulties with his training program, and had no 
 
            physical problems concerning his back.
 
            
 
                 In 1990, claimant secured a temporary job with the 
 
            State of Iowa.  His work as a utility office worker required 
 
            him to find old tax forms in one building, retrieve manila 
 
            folders and place them on a roll cart, push the cart to an 
 
            elevator and load the folders onto a truck.  Claimant then 
 
            drove the truck to another building and unloaded it.  
 
            Claimant stated that the stacks of manila folders weighed 
 
            approximately 50 pounds.  He was required to perform these 
 
            duties eight hours per day, five days per week.  On February 
 
            14, 1990, claimant was working in a room with five 
 
            coworkers.  He lifted a box, and his back gave out.  He 
 
            stated that he could hardly move, and that the accident 
 
            occurred not long after he arrived at work at 8:00 a.m.  He 
 
            told his coworker and his immediate boss that he had injured 
 
            himself.  He was told to go to the nurse's office at the 
 
            capitol building and was then sent to Darwin Schossow, D.O., 
 
            a family physician who treated him conservatively with 
 
            manipulation and muscle relaxers.  Dr. Schossow diagnosed 
 
            lumbar myofacitis, and kept claimant off of work until 
 
            February 28, 1990.  (Claimant's Exhibit B)
 
            
 
                 Claimant was then sent to Michael J. Makowsky, M.D., 
 
            who believed claimant was suffering from myofascial back 
 
            pain.  Dr. Makowsky treated claimant through May of 1990, 
 
            and placed a 25 pound lifting restriction on claimant's work 
 
            activities until June 1, 1990.  At that time, claimant was 
 
            returned to unrestricted work duties.  Dr. Makowsky also 
 
            prescribed physical therapy and an MRI of the lumbar sacral 
 
            spine.  The results of the MRI reveal that claimant had a 
 
            mild bulge at the L4-L5 level on the right side, without 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            definitive evidence of nerve root compression.  Physical 
 
            therapy treatments consisted of moist superficial heat and 
 
            ultrasound to the left lumbar region.  Once he was released 
 
            from physical therapy, he continued to complain of muscle 
 
            tightness in the left lumbar region. (Cl. Exs. C and D)
 
            
 
                 Claimant returned to Dr. Makowsky in March of 1991 for 
 
            an evaluation of any permanent impairment.  After an 
 
            examination, Dr. Makowsky noted no tenderness on palpation 
 
            across claimant's back, no muscle spasms and no swelling.  
 
            Claimant displayed full range of motion at the waist on side 
 
            bending, twisting, flexion and backward extension.  Again, 
 
            Dr. Makowsky noted myofascial back pain but did not believe 
 
            claimant had any permanent condition as a result of his work 
 
            injury. (Cl. Exs. C and D)
 
            
 
                 In September of 1991, claimant sought treatment from 
 
            Workmed Midwest.  Rodothea Milatou, M.D., reviewed 
 
            claimant's past medical records and reports from x-rays and 
 
            the MRI of his spine, and determined that claimant had 
 
            sustained a strain to the muscles of his low back.  She 
 
            recommended a work hardening program, and did not believe 
 
            that claimant had achieved maximum healing at this time.  
 
            Therefore, she declined to assign an impairment rating, but 
 
            instead prescribed anti-inflammatory medications and the 
 
            work hardening program.  In July of 1992, Kevin Smith, M.D., 
 
            (apparently formerly associated with Workmed Midwest) 
 
            reviewed claimant's medical history for the purposes of 
 
            determining whether claimant had any permanent disability.  
 
            At that time, claimant was still complaining of pain in the 
 
            low back, and described it on a scale from achiness to 
 
            sharpness, but most commonly annoying.  Claimant was 
 
            "comfortable" with his range of motion, and was not taking 
 
            any medications.  An examination showed claimant had some 
 
            restricted range of motion, and loss of function due to pain 
 
            and discomfort.  Dr. Smith also indicted claimant had a 
 
            specific disorder of the spine, and assigned a functional 
 
            impairment rating of 5 percent of the body as a whole. (Cl. 
 
            Exs. E and F)
 
            
 
                          ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to be determined is whether claimant is 
 
            entitled to permanent partial disability benefits.
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. 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).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 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).
 
            
 
                 Almost one year after he stopped treating claimant, Dr. 
 
            Makowsky indicated that claimant had not sustained any 
 
            permanent disability due to his work injury.  This is so 
 
            even though the MRI indicated claimant had sustained a 
 
            bulging disc.  Dr. Smith, who conducted an independent 
 
            medical examination, was of the opinion that claimant had 
 
            sustained a 5 percent impairment.  In this case, the 
 
            undersigned finds Dr. Smith's opinion more persuasive.  He 
 
            reviewed all of the prior medical records, and saw claimant 
 
            after he had completed work hardening.  His report is very 
 
            thorough, and contains notes from the examination performed 
 
            on July 24, 1992.
 
            
 
                 As a result, it is found that claimant has sustained a 
 
            permanent disability.  As he has sustained an injury to his 
 
            back, an evaluation of his industrial disability is 
 
            warranted.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the hearing, claimant was 35 years of 
 
            age.  He appears to be of above average intelligence, and 
 
            has secured several post-high school degrees.
 
            
 
                 Claimant has been involved in an interesting line of 
 
            work, that of professional baseball.  Apparently, he has 
 
            been relative successful in his endeavors, and has always 
 
            been under a pitching contract from the years 1981 through 
 
            1989.
 
            
 
                 Claimant did not sustain a serious injury while working 
 
            for the State of Iowa, although he now has to contend with 
 
            some pain and loss of range of motion and function in his 
 
            low back.  While claimant argues that his low back now 
 
            prevents him from successfully pursuing a career in minor 
 
            and/or major league baseball, the undersigned is not 
 
            convinced that the back injury is the sole impediment to his 
 
            ability to pitch for a baseball team.  To blame a muscle 
 
            strain for his loss of a big league pitching career would 
 
            certainly stretch the boundaries of workers' compensation 
 
            laws.
 
            
 
                 After reviewing all of the factors that comprise an 
 
            industrial disability, it is found that claimant has 
 
            sustained a loss of earning capacity of 5 percent.
 
            
 
                 The final issue to address is whether claimant is 
 
            entitled to medical benefits as governed by Iowa Code 
 
            section 85.27.
 
            
 
                 Iowa Code section 85.27 provides, in relevant part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expense incurred for such 
 
                 services.
 
            
 
                 As claimant sustained an injury which arose out of and 
 
            in the course of his employment, he is entitled to medical 
 
            benefits as provided by Iowa Code section 85.27.
 
            
 
                 While the undersigned has reviewed the charges for an 
 
            independent medical examination, this is an issue to be 
 
            determined pursuant to Iowa Code section 85.39. This was not 
 
            an issue listed on the hearing report, and the undersigned 
 
            cannot determine payment of the same.
 
            
 
                                       ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay claimant twenty-five (25) weeks of 
 
            permanent partial disability at the rate of one hundred 
 
            thirty-nine and 82/100 dollars ($139.82) per week commencing 
 
            June 1, 1990.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum, and shall be awarded credit for permanent partial 
 
            disability 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 an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                         ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Nick Avgerinos
 
            Attorney at Law
 
            135 S LaSalle St  Ste 1527
 
            Chicago IL 60603
 
            
 
            Mr Stephen Moline
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines IA 50319
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-1803
 
                                             Filed April 14, 1994
 
                                             Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JAMES FEELEY,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 941819
 
            DEPARTMENT OF REVENUE &       :
 
            FINANCE,                      :
 
                                          :     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.              :
 
            ------------------------------------------------------------
 
            5-1803
 
            Claimant awarded 5% industrial disability.