Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM A. STEWART,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 941911
 
            DES MOINES METROPOLITAN       :
 
            TRANSIT AUTHORITY,            :    A R B I T R A T I O N
 
                                          :
 
                 Employer,                :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                 
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by William 
 
            A. Stewart, against his employer, the Des Moines Metro 
 
            Transit Authority, and its insurance carrier, Hartford 
 
            Insurance, as defendants.
 
            
 
                 Claimant has alleged that he sustained a work-related 
 
            injury on December 18, 1989. 
 
            
 
                 The case was heard at Des Moines, Iowa on September 6, 
 
            1991 and was considered fully submitted upon conclusion of 
 
            the hearing.
 
            
 
                 The record in this proceeding consists of the testimony 
 
            of the claimant, Jerry Pierson, and Gary Pollock; claimant's 
 
            exhibit 1, 2, and 3; and, joint exhibits A-I.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and in conjunction 
 
            with the hearing assignment order, the parties submitted the 
 
            following issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on December 
 
            18, 1989, which arose out of and in the course of his 
 
            employment with the Des Moines Metro Transit Authority;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and the disability;
 
            
 
                 3.  Whether claimant is entitled to temporary 
 
            disability or healing period benefits, or permanent partial 
 
            disability benefits;
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 4.  Whether claimant is entitled to medical benefits as 
 
            governed by Iowa Code section 85.27; and,
 
            
 
                 5.  Whether defendants are entitled to credit for 
 
            benefits paid pursuant to Iowa Code section 85.38(2).
 
            
 
                                 findings of fact
 
            
 
                 William Stewart has worked for the Des Moines Metro 
 
            Transit Authority as a bus driver since August of 1985.  
 
            
 
                 On December 18, 1989, claimant was involved in an 
 
            automobile accident while driving to work.  Claimant 
 
            described the accident as being hit on the driver's side of 
 
            his vehicle.  Claimant stated that his left hand and wrist 
 
            hit the window, and he complained of neck and back pain.
 
            
 
                 Claimant sought treatment from the Emergency Room at 
 
            Mercy Hospital Medical Center where he complained of 
 
            tingling in the left hand, left arm, shoulder and neck pain.  
 
            He was diagnosed as having a contusion on the scalp, and a 
 
            cervical strain, and was referred to his family physician, 
 
            Jeffrey VerHeul, M.D.  (Joint Exhibit A, pages 1-3).
 
            
 
                 Claimant visited Dr. VerHeul the day after the 
 
            accident, December 19, 1989, and the clinical notes indicate 
 
            that Dr. VerHeul provided claimant with a work excuse.  
 
            Claimant returned to Dr. VerHeul on January 8, 1990.  
 
            Medical notes provide the following information:
 
            
 
                    William returns to the office today for 
 
                 follow-up of his accident.  He reports that on 
 
                 12/18, he was hit from the left side while driving 
 
                 his car and was involved in an a ccident [sic]. . 
 
                 . . He reports his left arm and hand also bother 
 
                 him.  They seem to go to sleep.  It has been since 
 
                 the accident.  He has not noticed any lost [sic] 
 
                 of strentgh [sic] but he reports taht [sic] it 
 
                 seems like he always feels like he has to massage 
 
                 his arm.  THis [sic] is espeically [sic] true when 
 
                 he is doing some activity such as his bus driving.
 
            
 
            (Jt. Ex. E, p. 18).
 
            
 
                 Dr. VerHeul recommended, among other tests, nerve 
 
            conduction velocity (NCV) tests of the upper extremities.  
 
            The results of the NCV demonstrated mild left carpal tunnel 
 
            syndrome.  Claimant was referred to Robert A. Hayne, M.D.  
 
            (Jt. Ex. E, p. 19).
 
            
 
                 On March 7, 1990, Dr. Hayne, in a letter to the 
 
            insurance carrier, made the following comments:
 
            
 
                    I saw William Stewart for examination on 
 
                 January 23, 1990.  He is a 42-year-old male who 
 
                 has had numbness and aching in his left hand 
 
                 dating back for an indefinite period of time.  On 
 
                 12/18 he was in a motor vehicle accident, and his 
 
                 symptoms have been much worse since that time.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                    ...
 
            
 
                    An EMG of the left upper extremity showed 
 
                 evidence of a left carpal tunnel, and his symptoms 
 
                 were severe enough that he underwent surgery for 
 
                 decompression of the carpal tunnel area on 
 
                 February 27.
 
            
 
                    I feel that, in view of his history, that his 
 
                 work as a bus driver with manipulation of his 
 
                 hands on the steering wheel is, in all 
 
                 probability, causing his symptomatology, and the 
 
                 automobile accident in December aggravated his 
 
                 symptomatology.  In summary, it is my opinion that 
 
                 there is a causal relationship between his 
 
                 symptomatology and his work as a bus driver for 
 
                 the Metro Transit Authority.
 
            
 
            (Jt. Ex. D, p. 16).
 
            
 
                 Subsequently, Dr. Hayne recommended that claimant drive 
 
            only buses with power steering during his healing period, 
 
            and on May 23, 1990, opined that claimant had sustained a 
 
            five percent permanent impairment of the left upper 
 
            extremity.  (Jt. Ex. D, pp. 12, 13 & 15).
 
            
 
                 Claimant reported this information to his employer, and 
 
            the employer sent claimant to another doctor, Peter D. 
 
            Wirtz, M.D.
 
            
 
                 Dr. Wirtz, who examined claimant on February 7, 1990, 
 
            also diagnosed mild carpal tunnel syndrome of the left 
 
            wrist.  On March 2, 1990, Dr. Wirtz reached the following 
 
            conclusion:
 
            
 
                    As noted in his history, the patient had 
 
                 symptoms prior to an accident on 12/18/89.  He 
 
                 related the symptoms being increased with the 
 
                 accident on 12/18/89 which would have been an 
 
                 aggravatory condition to a pre-existing carpal 
 
                 tunnel syndrome.  Should he not have had the 
 
                 injury 12/18/89, it is unlikely that it would have 
 
                 required surgery that he was seeking on 
 
                 examination 2/7/90.
 
            
 
            (Jt. Ex. C, p. 10).
 
            
 
                 On March 13, 1990, Dr. VerHeul was of the opinion that 
 
            the carpal tunnel syndrome was not causally related to the 
 
            automobile accident.  He did not voice an opinion as to 
 
            whether the surgery would have been necessary if the 
 
            accident had not occurred.  (Jt. Ex. F, p. 30).  He stated 
 
            that the carpal tunnel was caused by long term repetitive 
 
            movements.  (Jt. Ex. F, p. 34).
 
            
 
                 On March 14, 1991, claimant was evaluated by David 
 
            Berg, D.O., who concluded that "the motor vehicle accident 
 
            of December 18, 1990 either precipitated this gentleman's 
 
            carpal tunnel syndrome or aggravated a preexisting condition 
 
            which possibly existed and caused it to be symptomatic."  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            (Jt. Ex. B, p. 7).
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be determined is whether claimant 
 
            received an accident which arose out of and in the course of 
 
            his employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever v. Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 1116, 125 N.W.2d 251, 254 (1963); Ford v. Goode, 
 
            240 Iowa 1219, 1222, 38 N.W.2d 158, 159 (1949); Almquist v. 
 
            Shenandoah Nurseries, Inc., 218 Iowa 724, 731, 254 N.W. 35, 
 
            35 (1934).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on or before 
 
            December 18, 1989, which arose out of and in the course of 
 
            his employment. McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Claimant argues that the carpal tunnel syndrome 
 
            experienced in his left wrist is a direct result of 
 
            movements required while steering the buses.  He argues that 
 
            six months prior to the automobile accident, he had pain in 
 
            the left wrist, but he did not report the pain to his 
 
            employer because, "[i]t was pain that I could live with."  
 
            (Jt. Ex. G, p. 10). 
 
            
 
                 Defendants argue that claimant's injury was caused by 
 
            the automobile accident which occurred on December 18, 1989.  
 
            They propose that claimant did not formally complain of any 
 
            type of pain in his left wrist prior to the automobile 
 
            accident, and that he was fully aware of the procedures to 
 
            be followed when reporting a work-related accident and 
 
            injury.
 
            
 
                 All of the physicians who treated claimant are of the 
 
            opinion that his carpal tunnel syndrome predated the 
 
            accident.  At the hearing, claimant was able to describe the 
 
            nature of his job as a bus driver with clarity, and it is 
 
            certainly understandable that in steering a bus, he would 
 
            use repetitive motions of the wrist.  During the six months 
 
            prior to the automobile accident, claimant worked part-time 
 
            as a bus driver until September of 1989, when he was hired 
 
            as a full-time employee.  During this time, claimant 
 
            regularly drove buses which were not equipped with power 
 
            steering.  Medical documentation support his argument in 
 
            that prior to the automobile accident, he had pain in the 
 
            left wrist.  Claimant has shown by both his own credible 
 
            testimony and medical documentation, that he sustained a 
 
            personal injury which arose out of and in the course of his 
 
            employment.  
 
            
 
                 The next issue to be addressed is whether a causal 
 
            relationship exists between claimant's injury and his 
 
            disability.
 
            
 
                 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, 354 (Iowa 
 
            1980); Homes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 
 
            297 (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing 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).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 The evidence reveals that claimant sustained a physical 
 
            injury caused by his work.  However, he did not require any 
 
            type of formal medical treatment until after the automobile 
 
            accident which occurred on December 18, 1989.  This accident 
 
            was not work-related, and as the medical evidence notes, it 
 
            is the car accident which aggravated his preexisting 
 
            condition to become symptomatic and require surgery.  
 
            Although workers are generally compensated for preexisting 
 
            conditions that are aggravated by a work injury, the 
 
            reverse, as we have in this case, is not compensable.
 
            
 
                 As a result, claimant takes nothing from these 
 
            proceedings.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That defendants shall pay the costs of the this 
 
            proceeding.
 
            
 
                 Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Douglas J Reed
 
            Attorney at Law
 
            1906 Ingersoll Avenue
 
            Des Moines Iowa 50309
 
            
 
            Mr Jeff M Margolin
 
            Attorney at Law
 
            Terrace Center Ste 111
 
            2700 Grand Avenue
 
            Des Moines Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1108
 
                      Filed September 26, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WILLIAM A. STEWART, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 941911
 
            DES MOINES METROPOLITAN  :
 
            TRANSIT AUTHORITY,  :    A R B I T R A T I O N
 
                      :
 
                 Employer, :      D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            HARTFORD INSURANCE COMPANY,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1108
 
            Claimant failed to show that his disability was related to a 
 
            work-related injury where he was involved in an automobile 
 
            accident which caused his carpal tunnel syndrome to become 
 
            symptomatic.
 
            
 
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         THEODORE ST. JOHN,            :     File No.  942043
 
                                       :
 
              Claimant,                :    A R B I T R A T I O N
 
                                       : 
 
         vs.                           :      D E C I S I O N
 
                                       :    
 
         QUAKER OATS COMPANY,          :
 
                                       :    
 
              Employer,                :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Theodore St. 
 
         John, claimant, against Quaker Oats Company, employer, 
 
         hereinafter referred to as Quaker, a self-insured defendant, for 
 
         workers' compensation benefits as a result of an alleged injury 
 
         on February 19, 1990.  On June 3, 1993, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a hearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing. The oral 
 
         testimony and written exhibits received during the hearing are 
 
         set forth in the hearing transcript.         
 
         
 
              According to the hearing report, the parties have stipulated  
 
         to the following matters:
 
         
 
              1. Claimant is seeking temporary total or healing period 
 
         benefits only from March 18, 1991 through March 15, 1992, and 
 
         defendants agree that he was not working at this time. 
 
         
 
              2. At the time of injury claimant's gross rate of weekly 
 
         compensation was $849.55; he was married; and he was entitled to 
 
         two exemptions. Therefore, claimant's weekly rate of compensation 
 
         is $494.30 according to the Industrial Commissioner's published 
 
         rate booklet for this injury. 
 
         
 
              3. The parties agreed at hearing that they would work out 
 
         the dispute over medical expenses if the elbow condition in 
 
         dispute in this case is found work related.
 
         
 
                                    ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 

 
         
 
         Page   2
 
               
 
              
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of employment; 
 
         
 
              II.  Whether the claim is barred as untimely under Iowa Code 
 
         section 85.23 and 85.26.
 
         
 
              III. The extent of claimant's entitlement to disability 
 
         benefits.
 
              
 
                                 FINDINGS OF FACT
 
         
 
              Having heard the testimony and considered all of the 
 
         evidence, the deputy industrial commissioner finds as follows:
 
         
 
              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 injury and 
 
         disability.  From his demeanor while testifying, claimant is 
 
         found credible.
 
         
 
              Claimant worked for Quaker as an electrician from September 
 
         1966 until his early retirement October 1991.  On or about 
 
         February 19, 1990, while working from a ladder in the performance 
 
         of his duties at Quaker, claimant fell 10 to 12 feet onto his 
 
         back.  Claimant immediately suffered low back pain along with a 
 
         lacerated elbow.  Claimant stated that he did not notice problems 
 
         with his elbow at the time as he was more concerned over his 
 
         severe low back pain.  Claimant was treated for back pain over 
 
         the next few weeks by Mark Mehlhoff, M.D., an orthopedic surgeon.  
 
         Dr. Mehlhoff also treated claimant for foot problems in the 
 
         spring of 1990 but these problems were unrelated to his fall in 
 
         February.
 
         
 
              In August 1990, Dr. Mehlhoff began to treat claimant's right 
 
         elbow for olecranon bursitis, an inflammation of the lubrication 
 
         sack just under the skin in the outer edge of the elbow joint.  
 
         There is some dispute as to when claimant first began to have his 
 
         symptoms of swelling and pain in the elbow.  Claimant and his 
 
         wife testified that this began two to three weeks after the fall.  
 
         Dr. Mehlhoff states in his deposition that his notes do not 
 
         reflect any elbow complaints other than the laceration until 
 
         August 1990.  However, Dr. Mehlhoff also stated that he did not 
 
         spend a great deal of time on any elbow problems as his primary 
 
         concern at the time was claimant's back.  He also stated that he 
 
         did not note the exact condition of the elbow after the fall as 
 
         it was initially treated by emergency room physicians.  It is 
 
         found that claimant's testimony and that of his wife is credible 
 
         and that claimant did indeed suffer swelling and pain in his 
 
         right elbow within two to three weeks after the fall.  
 
         
 
              When conservative treatment, consisting of aspirations, 
 
         steroid injections, Ace wraps and rest, did not alleviate the 
 
         elbow problems, Dr. Mehlhoff performed surgery on the elbow in 
 

 
         
 
         Page   3
 
                
 
                 
 
         April 1990.  However, after an initial period of improvement, 
 
         claimant deteriorated and treatment by Dr. Mehlhoff lasted for 
 
         almost a year until August 1991.  At that time, Dr. Mehlhoff 
 
         recommended further surgery.  However, claimant expressed concern 
 
         over his lack of improvement and sought treatment at the Mayo 
 
         Clinic in Minnesota from Peter Amadio, M.D.  This treatment 
 
         consisted of additional surgery and proved success.  According to 
 
         Dr. Amadio, claimant reached maximum healing on April 8, 1992.
 
              
 
              Dr. Mehlhoff opines that claimant's elbow problems are 
 
         unrelated to the fall, although he felt that this was a 
 
         possibility.  He stated that his notes do not reflect any 
 
         continuing elbow complaints for six months after the fall.  Dr. 
 
         Amadio opines that this is a work-related condition and due to 
 
         the fall based upon a history of swelling and pain within two 
 
         weeks of the fall.  As it is found above that claimant did indeed 
 
         have swelling and pain from his elbow masked by the back pain, 
 
         Dr. Amadio's opinions are given the most weight.  Also, Dr. 
 
         Amadio's treatment was successful, unlike the treatment given by 
 
         Dr. Mehlhoff.  
 
         
 
              With reference to notice and the timeliness of this claim, 
 
         the elbow condition is the result of the work related fall on 
 
         February 19, 1990.  Defendant had notice of this work injury only 
 
         a few minutes after the fall.  The last payment of benefits was 
 
         made on March 5, 1990, according to the commissioner's file 
 
         herein.  Claimant's petition for benefits related to the fall was 
 
         filed on March 10, 1992.
 
         
 
              It could not be found that the work injury of February 19, 
 
         1990, was a cause of permanent impairment or disability to the 
 
         body as a whole.  As Dr. Amadio's views were given greater weight 
 
         on the causal connection issue, his views as to permanency are 
 
         also given greater weight.  Dr. Amadio opines that there is no 
 
         permanency from the elbow condition.  The back condition clearly 
 
         did not result in permanency and none is claimed by claimant 
 
         herein.
 
              
 
                                 CONCLUSIONS OF LAW
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury arising out of and 
 
         in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury. see 
 
         generally, Cedar Rapids, Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 
 
         (Iowa 1979); Crowe V. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active or dormant health impairments. A work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 
 
         620, 106 N.W.2d 591 (1961), and cases cited therein.
 
         
 
              The question of causal connection is essentially within the 
 

 
         
 
         Page   4
 
         
 
             
 
         
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact. Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to 
 
         such an opinion is for the finder of fact to determine from the 
 
         completeness of the premise given the expert or other surrounding 
 
         circumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
         867 (1965).    
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with non-expert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere V. Aase 
 
         Haugen Homes, Inc. 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).   
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co. 217 N.W.2d 531, 536 (1974).
 
         
 
              In the case sub judice, the evidence submitted by claimant 
 
         and primarily his credible testimony as to complaints of swelling 
 
         and pain within a few weeks after the fall established by the 
 
         greater weight of the evidence that the elbow condition was work 
 
         related.
 
              
 
               II. Claimant must demonstrate timely notice and the 
 
         timeliness of his claim.  Under Iowa Code section 85.23, claimant 
 
         must provide notice of a work related injury to his employer 
 
         within 90 days.  Under Iowa Code section 85.26, his petition for 
 
         benefits must be commenced with this agency within three years of 
 
         the last payment of weekly benefits.  In the case before us, 
 
         claimant clearly established a timely notice and claim.
 
         
 
               III.  As permanency was not established, claimant is only 
 
         entitled to weekly benefits for temporary total disability under 
 
         Iowa Code section 85.33 from the date of injury until claimant 
 
         returns to work or until claimant is medically capable of 
 
         returning to substantially similar work to the work he was 
 
         performing at the time of injury.  It was found that claimant did 
 
         not fully recover until April 8, 1992.  Claimant is entitled to 
 
         the stipulated times off work from March 19, 1991 through March 
 
         15, 1992.
 
         
 
                                       ORDER
 
         
 
              1. Defendant shall pay to claimant temporary total 
 
         disability benefits from March 19, 1991 through March 15, 1992,  
 
         fifty-one point seven one four (51.714) weeks, at the rate of 
 
         four hundred ninety-four and 30/100 dollars ($494.30) per week.
 
         
 
              2.  Defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.  
 
         
 

 
         
 
         Page   5
 
            
 
         
 
              3.  Defendant shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30. 
 
         
 
              4.  Defendant shall pay the costs of this action pursuant to 
 
         rule 343 IAC 4.33, including reimbursement to claimant for any 
 
         filing fee paid in this matter.
 
         
 
              5.  Defendant shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to rule 343 IAC 
 
         3.1. 
 
         
 
         
 
              Signed and filed this ____ day of October, 1993.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Wallace L. Taylor
 
         Attorney at Law
 
         326 Higley Bldg
 
         Cedar Rapids, Iowa  52401
 
         
 
         Mr. James M Peters
 
         Attorney at Law
 
         115 3rd St SE STE 1200
 
         Cedar Rapids, Iowa  52401
 
         
 
 
            
 
            
 
            
 
            
 
                                           51803
 
                                           Filed October 25, 1993
 
                                           Larry P. Walshire
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            THEODORE ST. JOHN,              File No.  942043
 
                      
 
                 Claimant,               A R B I T R A T I O N
 
                       
 
            vs.                              D E C I S I O N
 
                          
 
            QUAKER OATS COMPANY,     
 
                          
 
                 Employer, 
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            51803 
 
            Nonprecedential extent of disability case.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
JAMES E. AMBER,       
 
                                   File No. 942108
 
     Claimant,   
 
                                     A P P E A L
 
vs.         
 
                                   D E C I S I O N 
 
ROLSCREEN COMPANY,    
 
            
 
     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 July 25, 1994 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 February, 1995.      
 
                              _______________________________
 
                               BYRON K. ORTON           
 
                               INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Harold B. Heslinga
 
Attorney at Law
 
118 North Market St
 
Oskaloosa  IA  52577
 
 
 
Mr. Cecil L. Goettsch
 
Attorney at Law
 
801 Grand Ave  STE 3700
 
Des Moines  IA  50309-2727
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
     
 
                                   5-1108.5; 5-2500; 5-2909
 
                                   Filed February 21, 1995
 
                                   Byron K. Orton
 
          
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
JAMES AMBER,  
 
                                     File No. 942108
 
     Claimant, 
 
          
 
vs.                                      APPEAL
 
          
 
ROLSCREEN,                              DECISION
 
          
 
     Employer,          
 
     Self-Insured,  
 
     Defendant.              
 
________________________________________________________________
 
 
 
5-1108.5; 5-2500; 5-2909
 
Claimant incurred an injury on February 8, 1990.  A prior arbitration 
 
decision found permanent impairment, work restrictions and entitlement 
 
to benefits under chapter 85.  Claimant had a flare-up in May and June 
 
1993 that resulted in $2,210.60 in medical expenses.  The employer 
 
believed that the medical expenses were incurred as a result of a new 
 
injury which was not compensable.  The claimant believed that the aches 
 
and pains were a direct result from the prior work injury.  It was held 
 
that the expenses were compensable under the February 8, 1990 claim as 
 
no identifiable trauma or event could be identified and no medical 
 
reports indicated a new cause of the symptoms.  Claimant had a prior 
 
surgery which would more than likely cause continued aches and pains in 
 
his back for the rest of his life.  Benefits under section 85.27 
 
allowed with credit for benefits paid under a group health plan.
 
 
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         JAMES E. AMBER,               :
 
                                       :         File No. 942108
 
              Claimant,                :
 
                                       :      A R B I T R A T I O N
 
         vs.                           :
 
                                       :         D E C I S I O N
 
         ROLSCREEN COMPANY,            :
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, James E. Amber, against his self-insured employer, 
 
         Pella Corporation, f/k/a Rolscreen, defendant.  The case was 
 
         heard on April 7, 1993 at the office of the Industrial 
 
         Commissioner in Des Moines, Iowa.  The record consists of the 
 
         testimony of claimant.  The record also consists of joint 
 
         exhibits 1-70.  In addition, the deputy industrial commissioner 
 
         has been asked to take administrative notice of files numbered 
 
         834381, 852967 and 963858.
 
         
 
                                      ISSUES
 
         
 
              The sole issues to determine are:  1) whether there is a 
 
         causal relationship between the injury and any permanent 
 
         disability; and 2) whether claimant is entitled to any permanent 
 
         partial disability benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is 57 years old.  He is a high school graduate and 
 
         a United States Marine Corps veteran.  After his honorable dis
 
         charge from the military, claimant held a variety of positions.  
 
         He worked in various capacities in the construction field.  He 
 
         drove a truck.  He worked as a machinist in a factory, and he has 
 
         owned his own business.  
 
         
 
              For approximately the last three or four years, claimant has 
 
         owned a tavern in Harvey, Iowa.  Claimant performs all of the 
 
         paperwork necessary to the operation of the business.  He also 
 
         does some of the remodeling in the building.  He has three full 
 
         time employees.  Claimant does not work at the establishment on a 
 
         daily basis.
 
         
 
              Claimant commenced his employment with defendant in January 
 
         of 1977.  For nearly 15 years, claimant has worked in the ship
 
         ping department as a locator.  For a period of time, claimant had 
 
         driven a fork lift truck.  Later he was removed from the fork 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         lift truck and placed on an electric jack where he earned the 
 
         same rate of pay.
 
         
 
              Defendant corporation is engaged in the manufacturing of 
 
         windows.  It is claimant's responsibility to mark various prod
 
         ucts with a label and to enter the label codes into a computer 
 
         system so the product can be located in the shipping department.  
 
         Claimant is responsible for placing the product in its proper 
 
         storage place.  He uses various pieces of equipment to assist 
 
         him.  Claimant has indicated that he hopes to remain in the 
 
         employ of defendant until he can retire at age 62.
 
         
 
              Pursuant to defendant's request, the undersigned reviewed 
 
         the official records at the Division of Industrial Services rela
 
         tive to three workers' compensation files involving this claimant 
 
         and this defendant.  The official administrative records of the 
 
         agency indicate the following:
 
         
 
               With respect to file number 834381, claimant sustained a 
 
         work-related injury to his back on September 18, 1986.  This 
 
         injury occurred when claimant slipped on a greasy floor spot, and 
 
         a window fell on him.  As a result of the work injury, defendant 
 
         compensated claimant for healing period benefits in the amount of 
 
         29.143 weeks for a sum of $7,491.06.  Defendant also paid 61 
 
         weeks of permanent partial disability benefits.  Claimant 
 
         returned to work with the restrictions of no lifting, pushing or 
 
         pulling over 30 pounds.  (Joint Exhibit F, page 64)
 
         
 
              With respect to file number 852967, claimant sustained a 
 
         work-related injury to his low back on May 18, 1987.  At the time 
 
         of the work injury, claimant was sitting in his motor vehicle on 
 
         the company parking lot and he was struck from behind by another 
 
         vehicle.  Claimant sustained an injury to his low back.  For his 
 
         work injury, claimant was paid for eight weeks of temporary total 
 
         disability benefits for a sum of $2,110.32.  He was also paid for 
 
         3.143 weeks of temporary partial disability benefits.  Claimant 
 
         was paid no permanency benefits as a result of this work injury.
 
         
 
              With respect to file number 963858, claimant sustained a 
 
         work-related injury on October 2, 1990.  At that time, claimant 
 
         was riding a handjack and he ran into a fork lift truck.  As a 
 
         result of the accident, claimant's right ankle was pinned between 
 
         the handjack and the fork lift truck.  The file does not reflect 
 
         that benefits of any kind were paid to claimant.
 
         
 
              It is undisputed that prior to the work injury in question 
 
         here, claimant underwent two other back surgeries.  The back 
 
         surgeries were the result of the work injury on September 18, 
 
         1986.  Robert A. Hayne, M.D., performed two separate laminec
 
         tomies.  The first one occurred in November of 1986; the second 
 
         one occurred in January of 1987.  Dr. Hayne opined that claimant 
 
         had sustained a 16-17 percent permanent impairment.  Claimant was 
 
         able to return to work as a locator on April 20, 1987.  Dr. Hayne 
 
         restricted claimant to no lifting, pushing or pulling over 30 
 
         pounds.  Claimant was paid permanent partial disability benefits.
 
         
 
              The record also indicates that in January of 1989, claimant 
 
         sought an evaluation for his back condition from William Boulden, 
 
         M.D.  In his letter of January 23, 1989, Dr. Boulden discusses a 
 
         work injury in 1989.  Dr. Boulden recommends physical therapy 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         (Ex. 11).
 
         
 
              Dr. Hayne performed a third laminectomy on March 22, 1990.  
 
         This surgery followed the work injury in question.  Following a 
 
         period of recuperation, claimant was able to return to work in 
 
         the shipping department.  He was assigned to the position of 
 
         locator.  At the time claimant returned to work, Dr. Hayne 
 
         restricted claimant to no lifting, particularly weights over 
 
         35-40 pounds.  Dr. Hayne opined claimant could return to his posi
 
         tion as a fork lift truck operator.  Despite Dr. Hayne's recom
 
         mendation, claimant was transferred from the position of fork 
 
         lift truck driver.  He was assigned the task of operating an 
 
         electric jack for the same rate of pay.  
 
         
 
              At the time of the hearing, claimant was still operating the 
 
         electric jack in the shipping department.  He was also still man
 
         aging his tavern business.  Claimant testified that since his 
 
         return to work in June of 1990, claimant had missed no work 
 
         because of his low back problems, although he testified that he 
 
         experienced numbness, pain, and sensations of hot and cold in his 
 
         right leg.  Claimant also testified that he, as of the date of 
 
         the hearing, had to change positions often and that he experi
 
         enced difficulties getting in and out of vehicles.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The first issue is whether there is a causal relationship 
 
         between claimant's amended work injury of February 8, 1990 and 
 
         claimant's permanent partial disability.
 
         
 
              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 circum
 
         stances.  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).
 
         
 
              All of the medical testimony relates claimant's third 
 
         surgery to his work injury on February 8, 1990.  There is no 
 
         medical opinion which disputes the requisite causal connection.  
 
         Claimant has met his burden of proof.
 
         
 
              The next issue to determine is whether claimant is entitled 
 
         to any permanent partial disability benefits as a result of this 
 
         work injury.  The treating orthopedic surgeon, Dr. Hayne, 
 
         attributes six to seven percent of claimant's permanent impair
 
         ment to the injury in question.  This opinion was rendered after 
 
         numerous observations of the claimant and after having performed 
 
         three surgeries on claimant's back.  
 
         
 
              Marc Hines, M.D., opines there is a 31 percent permanent 
 
         impairment to the body as a whole.  However, he does not deter
 
         mine the percentage of the impairment which is attributable to 
 
         this work injury.  He bases his opinion on a single examination 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         of the claimant.
 
         
 
              Thomas W. Bower, P.T., also renders an opinion relative to 
 
         claimant's permanent impairment rating.  His opinion is expressed 
 
         in his letter of December 7, 1992, where he writes:
 
         
 
              I will attempt in the following paragraphs, to summa
 
              rize my findings, and bring some sort of uniform con
 
              clusion to the past findings.
 
         
 
              First of all, many different texts and ways have been 
 
              utilized to arrive at the final impairment.  I am 
 
              unsure of the source of Dr. Hayne's report in calculat
 
              ing impairment, and the AMA guides may have been that 
 
              source.  Dr. Boulden has clearly used the orthopedic 
 
              guides, and these guides are now considered to be out
 
              dated and certainly not universally accepted.  Dr. 
 
              Hines has further confused this issue by combining his 
 
              opinion regarding spinal nerve impairment, with the 
 
              lumbar spine.  As previously stated, the patient con
 
              veys, nor are there any objective findings to support 
 
              residual neurologic changes.  Therefore, the use of the 
 
              spinal nerve root impairment, and specifically Dr. 
 
              Hines' report, I feel is inappropriate.
 
         
 
              Again, if I understand the request correctly, the ques
 
              tion is, what is the impairment resulting after the 
 
              third surgery?  In order to accomplish this, I will 
 
              need to work through the logic figuring the impairment 
 
              after each surgery.
 
         
 
              According to the record, the first surgery was done in 
 
              1986.  A herniated disc was diagnosed and a laminectomy 
 
              was performed at L5.  In accordance with Table 53 of 
 
              the guides, this would account for an 8% impairment.  
 
              The second surgery was accomplished, the best I can 
 
              tell, at a different level.  Therefore, an additional 
 
              8% impairment has occurred.  A third surgery was done 
 
              in March of 1990 to reduce spinal stenosis at the L4/5 
 
              junction.  This would be considered a second operation, 
 
              entitling that individual to an additional 2% impair
 
              ment.
 
         
 
              It appears that Dr. Hayne was very close to the calcu
 
              lated impairment, although I again an [sic] unsure of 
 
              his method.  The orthopedic guides have also approxi
 
              mated closely the first two surgeries, but have given 
 
              too much for the third surgery at the same level.  Dr. 
 
              Hines' impairment is inappropriate, as previously 
 
              stated, based on adding in the spinal nerve impairment.
 
         
 
              You will notice I have not considered range of motion 
 
              loss.  Although Mr. Amber demonstrates some lost trunk 
 
              motion in all planes, it appears more due to pain 
 
              rather than an actual structural loss.  Likely those 
 
              movements would change from day to day, based on his 
 
              symptoms, therefore, cannot be considered a permanent 
 
              finding.
 
         
 
              If we were to combine all these impairments into one, 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
              the first impairment for the first surgery is 8%, the 
 
              second is 8%, combining to a 16% impairment.  The total 
 
              impairment then with the additional surgery, which is 
 
              an additional 2% using the combined values charts, 
 
              would then be 18%.  Exclusively looking at the impair
 
              ment for the third surgery, would be 2% impairment to 
 
              the whole body.
 
         
 
              Hopefully I have shed some light on this very confusing 
 
              situation and certainly if I can be of any further 
 
              help, please feel free to contact us.
 
         
 
         (Ex. 6, pp. 62 & 63)
 
         
 
              As in the case with Dr. Hines, Mr. Bower's evaluation of 
 
         claimant's permanent impairment is based upon a one time opportu
 
         nity to examine and evaluate claimant.
 
         
 
              It is the determination of the undersigned that claimant has 
 
         sustained a permanent functional impairment as a result of the 
 
         work injury on February 8, 1990.  The impairment is in the range 
 
         of 2 percent to 31 percent, with a more realistic figure of 2 
 
         percent to ten percent.  However, it is reiterated that a finding 
 
         of impairment to the body as a whole found by a medical evaluator 
 
         does not equate to industrial disability, which claimant is 
 
         alleging in the instant case.  See:  Rauch v. O'Bryan, File No. 
 
         828457, Appeal Decision December 30, 1988.
 
         
 
              Likewise, claimant's functional ability is not necessarily 
 
         dispositive of claimant's disability within the contemplation of 
 
         the worker's compensation law.  Veeder v. Commercial Contracting, 
 
         87-535, (Ia. Ct. of App. Nov. 29, 1988).  In Veeder, the Iowa 
 
         Court of Appeals cites McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
         181, 192 (Iowa 1980); regarding industrial disability.  The 
 
         McSpadden Court writes:
 
         
 
              Disability from injuries covered by chapter 85 has been 
 
              defined by case law as "industrial disability," or a 
 
              reduction in earning capacity.  Among the criteria con
 
              sidered in determining industrial disability are the 
 
              claimant's "age, education, qualifications, experience 
 
              and his inability, because of the injury, to
 
         
 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         engage in employment for which he is fitted."  
 
         Functional disability, while a consideration, has not 
 
         been the final criterion....
 
         
 
         (Citations omitted) 
 
         
 
              The Veeder Court continued as follows:
 
         
 
              In other words, while functional capacity may be only a 
 
              twenty-five or thirty percent disability compared with 
 
              the one hundred percent perfect man, disability may be 
 
              considered total from the standpoint of a claimant's 
 
              ability to go back to work to earn a living for himself 
 
              and his family.  See  Diedrich v. Tri-City Railway, 219 
 
              Iowa 587, 594, 258 N.W. 899, 902 (1935).
 
         
 
              While it is acknowledged that claimant has a functional 
 
         impairment, his industrial disability with respect to this back 
 
         injury is minimal.  Claimant has been able to return to a job 
 
         substantially similar to the one he has held prior to February 8, 
 
         1990.  Defendant is to be commended for its monumental efforts in 
 
         returning claimant to work after each of his work injuries.  The 
 
         defendant-employer has accommodated claimant in the workplace.  
 
         The only difference with respect to claimant's position now is 
 
         that he operates an electric jack rather than drives a fork lift 
 
         truck.  The current modification has been made so claimant will 
 
         not have to engage in twisting movements which are necessary when 
 
         one is operating a fork lift truck.  The position as fork lift 
 
         driver is no longer available to claimant.  Claimant's attendance 
 
         has been excellent.  By his own admission, claimant has missed no 
 
         work days because of the work injury in question.  Claimant does 
 
         have more trouble walking and getting in and out of vehicles.  He 
 
         has some numbness in his right leg which requires some care on 
 
         claimant's part when he begins to walk.  He has trouble bending.  
 
         His pain has increased, but he takes Tylenol to ease the pain. 
 
         
 
              His performance has at least been satisfactory since the 
 
         most recent work injury.  He has had no loss of earnings.  He is 
 
         earning the same rate of pay now as before the work injury.  
 
         Claimant is capable of managing his tavern.  Those job duties 
 
         have not been affected.
 
         
 
              Therefore, in light of all of the foregoing, as well as in 
 
         light of the personal observations of claimant, it is the deter
 
         mination of the undersigned that claimant is entitled to 5 per
 
         cent permanent partial disability benefits as a result of the 
 
         work injury on February 8, 1990.  This equates to 25 weeks of 
 
         benefits commencing on June 1, 1990 and payable at the stipulated 
 
         rate of $265.58 per week.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant is to pay unto claimant twenty-five (25) weeks of 
 
         permanent partial disability benefits at the stipulated rate of 
 
         two hundred sixty-five and 58/l00 dollars ($265.58) per week, 
 
         commencing on June 1, 1990.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         statutory interest at the rate of ten percent (10%) per year pur
 
         suant to section 85.30, Iowa Code, as amended.  
 
         
 
              Defendant shall receive credit for all benefits previously 
 
         paid to claimant as a result of this work injury.
 
         
 
              Defendant shall pay the costs of this action pursuant to 
 
         rule 343 IAC 4.33.
 
         
 
              Defendant shall file a claim activity report as requested by 
 
         this division and pursuant to rule 343 IAC 3.1.
 
         
 
         
 
         
 
              Signed and filed this ____ day of May, 1993.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harold B. Heslinga
 
         Attorney at Law
 
         118 North Market Street
 
         Oskaloosa, Iowa  52577
 
         
 
         Mr. Cecil L. Goettsch
 
         Attorney at Law
 
         801 Grand Avenue
 
         Suite 3700
 
         Des Moines, Iowa  50309
 
         
 
 
            
 
 
 
       
 
 
 
                                                 1803
 
                                                 Filed May 24, 1993
 
                                                 MICHELLE A. McGOVERN
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JAMES E. AMBER,     
 
                                              File No. 942108
 
                 Claimant, 
 
                                          A R B I T R A T I O N
 
            vs.       
 
                                              D E C I S I O N
 
            ROLSCREEN COMPANY,  
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
              
 
            1803
 
            
 
            Claimant is a 57-year-old married man.  He had sustained 
 
            previous workers' compensation injuries to his back as a 
 
            result of his employment with this defendant.  Dr. Hayne 
 
            performed two separate laminectomies.  Claimant returned to 
 
            his employment as a fork lift truck operator.  He was 
 
            restricted from lifting, pushing, or pulling more than 30 
 
            pounds.  Defendant paid claimant 80 weeks of permanent 
 
            partial disability benefits. 
 
            
 
            He sustained a third work-related injury on February 8, 1990 
 
            which resulted in another laminectomy.  It was also 
 
            performed by Dr. Hayne.  The surgeon returned claimant to 
 
            work after a healing period.  The defendant made 
 
            accommodations for claimant in the workplace.  Claimant was 
 
            transferred from the position of fork lift truck driver to 
 
            the position of electric jack operator.  The position of 
 
            fork lift truck driver was no longer available to claimant.  
 
            The transfer was made so that claimant would not have to 
 
            engage in twisting motions.  He returned to work at the same 
 
            rate of pay.  Claimant testified that once he had been 
 
            returned to work by Dr. Hayne, he missed no more work 
 
            because of his low back condition.  Also claimant testified 
 
            that since the most recent injury to his back, he had 
 
            experienced difficulties getting in and out of vehicles.  He 
 
            also related that he was having pain and numbness in his 
 
            right leg which made walking more difficult.  Claimant used 
 
            Tylenol to ease his pain.
 
            
 
            HELD:  Claimant had sustained a five percent permanent 
 
            partial disability as a result of the most recent work 
 
            injury.
 
            
 
 
            
 
            
 
            
 
            
 
                                                51108.5 52500 52909
 
                                                Filed July 25, 1994
 
                                                Marlon D. Mormann
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JAMES AMBER,                  :
 
                                          :      File No. 942108
 
                 Claimant,                :
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            ROLSCREEN,                    :    D E C I S I O N  O N
 
                                          :
 
                 Employer,                :     E X P E D I T E D
 
                 Self-Insured,            :
 
                 Defendant.                       P E T I T I O N    
 
            ------------------------------------------------------------
 
            51108.5 52500 52909
 
            
 
            Claimant incurred an injury on February 8, 1990.  A prior 
 
            arbitration decision found permanent impairment, work 
 
            restrictions and entitlement to benefits under chapter 85.  
 
            Claimant had a flare-up in May and June 1993 that resulted 
 
            in $2,210.60 in medical expenses.  The employer believed 
 
            that the medical expenses were incurred as a result of a new 
 
            injury which was not compensable.  The claimant believed 
 
            that the aches and pains were a direct result from the prior 
 
            work injury.  It was held that the expenses were compensable 
 
            under the February 8, 1990 claim as no identifiable trauma 
 
            or event could be identified and no medical reports 
 
            indicated a new cause of the symptoms.  Claimant had a prior 
 
            surgery which would more than likely cause continued aches 
 
            and pains in his back for the rest of his life.  Benefits 
 
            under section 85.27 allowed with credit for benefits paid 
 
            under a group health plan.
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JAMES AMBER,                  :
 
                                          :      File No. 942108
 
                 Claimant,                :
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            ROLSCREEN,                    :    D E C I S I O N  O N
 
                                          :
 
                 Employer,                :     E X P E D I T E D
 
                 Self-Insured,            :
 
                 Defendant.               :      P E T I T I O N    
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is an expedited proceeding in arbitration brought 
 
            by James Amber as a result of injuries to his back which 
 
            occurred on February 8, 1990.  A prior arbitration hearing 
 
            was held on April 7, 1993, with a decision entered May 24, 
 
            1993.  
 
            
 
                 This case was heard and fully submitted by telephone 
 
            conference initiated in Des Moines, Iowa, on July 19, 1994.  
 
            Harold Heslinga, Attorney at Law, participated on behalf of 
 
            the claimant.  Cecil Goettsch, Attorney at Law, participated 
 
            on behalf of the employer.  Observing, but not offering 
 
            testimony, on behalf of the employer were Myron Linn, 
 
            manager of compensation and government affairs, and Marla 
 
            Schiebout, occupational health nurse.  The record in the 
 
            proceeding consists of employer's exhibits 1 through 10 and 
 
            the prior administrative file which was received by judicial 
 
            notice.
 
            
 
                                      ISSUE
 
            
 
                 The issue presented for determination is as follows:
 
            
 
                 Whether medical expenses incurred in May and June of 
 
            1993 with Dr. Hayne are causally connected to the February 
 
            8, 1990 injury.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having considered all of the evidence received, the 
 
            following findings of fact are made:
 
            
 
                 Claimant, James Amber, injured his low back on February 
 
            8, 1990.  Claimant was treated by Robert A. Hayne, M.D., who 
 
            performed the third in a series of laminectomies on March 
 
            22, 1990.  Claimant returned to work after the surgery and 
 
            was given work restrictions of no lifting, particularly 
 
            weights over 35 to 40 pounds.  
 
            
 
                 A prior arbitration hearing was held on April 7, 1993.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            During that hearing claimant did not state that he had 
 
            incurred any injuries subsequent to February 8, 1990.  
 
            Claimant, after April 7, 1993, alleged that he had incurred 
 
            a new injury on April 5, 1993.  No specific trauma was 
 
            indicated for the new injury.  The new back pain which 
 
            occurred in April 1993 appears to have resulted from work 
 
            for Rolscreen in the regular course of employment.  
 
            
 
                 Dr. Hayne undertook treatment in May and June 1993 to 
 
            determine whether there was a new problem.
 
            
 
                 The employer denied the request for reimbursement for 
 
            medical benefits amounting to $2,210.06 because claimant had 
 
            not mentioned the alleged new injury of April 5, 1993, 
 
            during the hearing of April 7, 1993.  The employer submitted 
 
            the bills under a group health plan which left approximately 
 
            $579.32 in medical expenses unpaid.
 
            
 
                 Claimant was found to have incurred permanent 
 
            disability as a result of the February 8, 1990 injury by 
 
            reason of the arbitration decision filed May 24, 1993.  This 
 
            contemplates an ongoing problem which is permanent in 
 
            nature.  Since no specific trauma was identified to caused 
 
            claimant's back pain in May and June of 1993, it must be 
 
            found that the back pain was a direct and proximate result 
 
            of the February 8, 1990 injury.  Permanent work restrictions 
 
            and permanent functional impairment imply that claimant's 
 
            problem will be ongoing for the rest of his life.  It is 
 
            entirely probable that claimant will continue to incur 
 
            problems with his low back as a result of the February 8, 
 
            1990 injury and subsequent surgery.  To declare each new 
 
            flare-up a new injury would defy logic as such pain and 
 
            aches are contemplated.  
 
            
 
                         REASONING AND CONCLUSIONS OF LAW
 
            
 
                 The issue is whether the medical expenses of May and 
 
            June 1993 are causally connected to the February 8, 1990 
 
            injury thereby making them a compensable expense under Iowa 
 
            Code section 85.27.
 
            
 
                 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).
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 It is held that the medical expenses incurred with Dr. 
 
            Hayne during the month of May and June 1993 are a direct and 
 
            proximate result of the February 8, 1990 injury.  These 
 
            expenses are compensable under section 85.27 and the 
 
            employer is entitled to receive credit for benefits paid 
 
            under the group health plan.  The lack of objective findings 
 
            and no specific trauma lead to the conclusion that the aches 
 
            and pains are the result of a prior injury rather than a new 
 
            and distinct injury.  Permanent impairment and work 
 
            restrictions contemplate a continuing problem of lifelong 
 
            duration.  Since no medical opinion was expressed indicating 
 
            a separate or distinct cause and no identifiable incident 
 
            was established, the most likely cause of the aches and 
 
            pains is the February 8, 1990 injury along with the 
 
            subsequent surgery.
 
            
 
                                      ORDER
 
            
 
                 IT IS, THEREFORE, ORDERED:
 
            
 
                 Defendant employer, Rolscreen Company, self-insured, is 
 
            to pay the medical expenses arising out of the May and June 
 
            1993 treatment with Dr. Hayne and appropriate referrals 
 
            totally approximately two thousand two hundred ten and 
 
            60/100 dollars ($2,210.60).
 
            
 
                 It is further ordered that the defendant employer is 
 
            entitled to receive credit for benefits paid under the group 
 
            health plan. 
 
            
 
                 It is further ordered that any costs of this action are 
 
            assessed against defendant employer, self-insured, pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this __________ day of July, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Harold B. Heslinga
 
            Attorney at Law
 
            118 N Market ST
 
            Oskaloosa, Iowa  52577
 
            
 
            Mr. Cecil Goettsch
 
            Attorney at Law
 
            801 Grand Ave STE 3700
 
            Des Moines, Iowa  50309-2727
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            PATTY A. MOHR,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                    File No. 942474
 
            ADAIR COMMUNITY HEALTH CENTER,  
 
                                                    A P P E A L
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            ALLIED MUTUAL INSURANCE    
 
            COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
 
 
                                  ISSUES
 
 
 
            Defendant states the following issue on appeal:  Whether the 
 
            deputy erred in denying permanent disability benefits?
 
 
 
                             FINDINGS OF FACT
 
 
 
            The findings of fact contained in the proposed agency 
 
            decision filed June 22, 1992 are adopted as final agency 
 
            action.
 
 
 
                             CONCLUSIONS OF LAW
 
 
 
            The conclusions of law contained in the proposed agency 
 
            decision filed June 22, 1992 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.  Segments designated by brackets ([ 
 
            ]) indicate language that is in addition to the language of 
 
            the proposed agency decision.
 
            
 
                 The first issue to address is whether there is a causal 
 
            relationship between claimant's work injury and her alleged 
 
            condition.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 There is sufficient evidence claimant has established 
 
            the requisite causal connection.  Both Dr. Johnson (p. 96) 
 
            and Dr. Doro (p. 99) attribute claimant's problems to her 
 
            work injury on March 7, 1990.  Dr. Mary-Franklin G. Paulus, 
 
            M.D., concurs with their opinion relative to causal 
 
            connection.  (Ex. 1, p. 7, lines 17-25).  Medical evidence 
 
            establishes claimant's causal relationship with her work 
 
            injury.
 
            
 
                 The next issue deals with the nature and extent of 
 
            claimant's condition.  Claimant alleges she has sustained a 
 
            permanent disability.  She maintains she has an industrial 
 
            disability.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            the employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial 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 the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Iowa Code section 
 
            85.34.
 
            
 
                 The opinions of the two evaluating physicians vary 
 
            vastly.  Dr. Paulus opines that claimant is functionally 
 
            impaired in the area of 35 to 40 percent.  (Ex. 1, p. 9, ll. 
 
            25 through p. 10, l. 5)  She bases her opinion on the 
 
            following:
 
            
 
            
 
                    We now will attempt to list the percent 
 
                 impairment for these various findings.
 
            
 
                    Cervical flexion at 20o  with a loss of 40o = 4% 
 
                    of the whole person
 
                    Hyperextension at   50o  with a loss of 25o = 2% 
 
                    of the whole person
 
                    Cervical rotation left 40o with a loss 40o  = 2% 
 
                    of the whole person
 
                    Cervical rotation right 60o loss of 20o     = 1% 
 
                    of the whole person
 
                    Left Cervical lateral tilt 15o  loss of 30o   = 2%
 
                    Right Cervical lateral tilt 45o      normal     0
 
                    Lumbosacral forward flexion (p. 91 of 3rd 
 
                    edition AMA Guides), 45o                      = 2%
 
                    W.P. in view of straight leg raising abnormality 
 
                    seen above
 
                    Lumbosacral hyperextension of 10o with loss of 
 

 
            
 
            Page   4
 
            
 
            
 
                                                     15o =      5% W.P.
 
                   Loss of strength of grip on right side @ 10 
 
                   kg/force vs. 24 kg/force on left represents 
 
                   a loss of 58% of strength (10 kg î 24 kg = 
 
                   42% or loss of 58%,)multiplied 
 
                   by the maximum allowable % for that 
 
                   level for the median nerve, represents 35%
 
                      58% x 35% = 20%
 
            
 
                 These calculations do not include the suspicion of 
 
                 weakness of the peroneii on the right side, as 
 
                 evidenced by the abnormal shoe-wear pattern, the 
 
                 weakness detected clinically, and the calf atrophy 
 
                 measurement above.
 
            
 
                    The impression is:  Closed head trauma with                                     
 
                                concussion Cervical strain with                           
 
                                possible cord injury
 
                                Contusion right shoulder
 
                                Low Back strain with possible HNP 
 
                                Adjustment Disorder with                                  
 
                                Depressed Mood
 
            
 
                                History of Fibromyositis
 
            
 
                 Comment:  This patient obviously had severe injury 
 
                 to the head and neck as well as the lumbosacral 
 
                 spine, in decreasing order of severity.  The fact 
 
                 that the CAT scan and the MRI did not show damage 
 
                 does not change the fact that physiologic damage 
 
                 of the central and peripheral nervous system did 
 
                 occur (initial concussion, with right facial and 
 
                 right arm paralysis).  The concussion did not 
 
                 resolve for a full 3 days and the paralysis 
 
                 pattern took even longer.  I think this patient 
 
                 has been severely affected by this accident, not 
 
                 only physically, but by the emotional stress 
 
                 involved as well.  It seems a bit strange also 
 
                 that she never received any cervical traction 
 
                 during her entire physical therapy course, but 
 
                 this may be only a small matter.  She may still 
 
                 receive improvement from it, even at this late 
 
                 hour.  I feel this patient is attempting to 
 
                 overcome the affects of this accident, and to 
 
                 resume a normal life style as soon as possible.  
 
                 She appears to be anxious to return to a more 
 
                 professional work-force.
 
            
 
            (Ex. 3, pp. 67-68)
 
            
 
                 [Dr. Paulus] ***** practices in orthopedic surgery and 
 
            [while she] is eligible for board certification, [she has 
 
            not obtained board certification.  She is not a neurologist, 
 
            a neurosurgeon, nor a psychiatrist].  Dr. Paulus has 
 
            examined claimant on [two] ***** occasions, June 4, 1991 and 
 
            [March 26, 1992].
 
            
 
                 There is a contrary opinion by Dr. Cotton.  He opines 
 
            that claimant is not functionally impaired.  He diagnoses 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant as having "diffuse subjective pain of uncertain 
 
            etiology."  Dr. Cotton further opines that:
 
            
 
                 I felt there was no evidence of any permanent 
 
                 partial impairment or subsequent disability 
 
                 according to the AMA Guides, Third Edition, 
 
                 Revised.
 
            
 
            (Ex. E, p. 8, ll. 20-22)
 
            
 
                 In his deposition, Dr. Cotton further opines that:
 
            
 
                 I found no objective abnormalities on her physical 
 
                 examination that would account for the degree or 
 
                 the type or the persistence of the symptoms that 
 
                 she describes to the doctors.
 
            
 
            (Ex. E, p. 30, ll. 12-15)
 
            
 
                 Dr. Cotton ***** has examined claimant on one occasion, 
 
            March 31, 1992.  Dr. Cotton is board certified in neurology 
 
            and in electrodiagnostic medicine.  [In addition he is 
 
            certified by the American Academy of Electrodiagnostic 
 
            Medicine to perform EMG's and nerve conduction studies.]
 
            
 
                 It is the determination of the [industrial 
 
            commissioner] ***** that [while] both physicians are 
 
            eminently qualified to render an opinion, the opinion of Dr. 
 
            Cotton is entitled to greater weight.  Dr. Cotton is more 
 
            experienced than Dr. Paulus and has expertise in the area 
 
            involved in the injury.  Even though Dr. Paulus saw the 
 
            claimant twice as opposed to Dr. Cotton seeing the claimant 
 
            once, this is but one factor to consider.  After having 
 
            reviewed the record in its entirety, the industrial 
 
            commissioner gives greater weight to the opinion of Dr. 
 
            Cotton.] *****
 
            
 
                 Objective test results are all in the normal range.  
 
            Two CT scans are normal.  An MRI is normal.  Dr. Doro, a 
 
            specialist in neurology, has diagnosed claimant as having an 
 
            acute cervical and thoracic strain.  Dr. Doro has not 
 
            provided any functional impairment rating.  Dr. Johnson, as 
 
            of September 26, 1990, has treated claimant for 
 
            "fibromyalgia/fibrositis."  (Ex. 5, p. 71)  All he notes, as 
 
            far as objective signs of claimant's condition, are muscle 
 
            spasms.
 
            
 
                 Currently, claimant only takes aspirin for pain.  
 
            Records indicate that claimant has last seen her treating 
 
            physician, Dr. Johnson on October 24, 1990.
 
            
 
                 After reviewing the entire record, ***** it is the 
 
            decision of the undersigned that claimant does not have a 
 
            permanent partial disability.  No objective evidence 
 
            supports her claim.
 
            
 
                 Claimant, however, has sustained a temporary total 
 
            disability pursuant to section 85.33(1).  The section 
 
            provides that:
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                    Except as provided in subsection 2 of this 
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 The record establishes that claimant was off of work 
 
            from March 7, 1990 until she returned to full time work on 
 
            October 1, 1990.  At that time she returned to defendant's 
 
            business establishment as a restorative aide, a position 
 
            which she held prior to the date of her injury.  Claimant, 
 
            as a consequence, is entitled to 29.714 weeks of temporary 
 
            total disability benefits at the stipulated rate of $170.04 
 
            per week.  Prior to the hearing, defendants had paid 
 
            claimant 29.429 weeks of compensation at the proper rate.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                  ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant point two eight five 
 
            (.285) weeks of temporary total disability benefits at the 
 
            rate of one hundred seventy and 04/l00 dollars ($170.04) per 
 
            week.
 
            
 
                 That accrued benefits are to be paid in a lump sum 
 
            together with statutory interest at the rate of ten percent 
 
            (10%) per year pursuant to Iowa Code section 85.30, as 
 
            amended.
 
            That claimant shall pay the costs of the appeal including 
 
            the transcription of the hearing.  Defendants shall pay all 
 
            other costs.
 
            
 
                 That defendants shall file a claim activity report as 
 
            requested by this division and pursuant to rule 343 IAC 3.l.
 
            Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                    ________________________________
 
                                           BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. E. W. Wilcke
 
            Attorney at Law
 
            826 1/2 Lake Street
 
            P O Box 455
 
            Spirit Lake, Iowa  51360
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce Street  STE 200
 
            P O Box 3086
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Russell S. Wunschel
 
            Attorney at Law
 
            805 N Main Street
 
            P O Box 883
 
            Carroll, Iowa  51401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                             1801; 1803; 2602
 
                                             Filed November 18, 1992
 
                                             Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            PATTY A. MOHR,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                   File No. 942474
 
            ADAIR COMMUNITY HEALTH CENTER,  
 
                                                    A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            ALLIED MUTUAL INSURANCE    
 
            COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            1801; 1803
 
            Claimant awarded temporary total disability benefits as a 
 
            result of a fall on defendants' parking lot.  Claimant did 
 
            not prove her entitlement to permanent partial disability 
 
            benefits.  All objective tests were in the normal range.  
 
            There were only muscle spasms.  There was no objective 
 
            evidence to support claimant's claim.
 
            
 
            2602
 
            Both physicians were eminently qualified to render an 
 
            opinion.  The opinion of Dr. Cotton given greater weight 
 
            because of his greater experience and his expertise in the 
 
            area involved in the injury.  The number of visits to a 
 
            particular physician is but one factor to consider when 
 
            weighing opinions of medical practitioners.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                           :
 
            PATTY A. MOHR,                 :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :
 
                                           :         File No. 942474
 
            ADAIR COMMUNITY HEALTH CENTER, :
 
                                           :      A R B I T R A T I O N
 
                 Employer,                 :
 
                                           :         D E C I S I O N
 
            and                            :
 
                                           :
 
            ALLIED MUTUAL INSURANCE        :
 
            COMPANY,                       :
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendants.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Patty Mohr, against her employer, Adair 
 
            Community Health Center, and its insurance carrier, Allied 
 
            Mutual Insurance Company, defendants.  The case was heard on 
 
            May 6, 1992 at the Industrial Commissioner's office in Des 
 
            Moines, Iowa.  The record consists of the testimony of 
 
            claimant.  The record also consists of the testimony of 
 
            Donald P. Larsen, restauranteur; Dennis Mohr, spouse of 
 
            claimant; and Arlene Wedemeyer, R.N., company nurse.  
 
            Additionally, the record consists of claimant's exhibits 
 
            1-23 and defendants' exhibits A-L.
 
            
 
                                      ISSUES
 
            
 
                 The issues to be determined are:  1) whether claimant's 
 
            condition is causally related to claimant's work injury of 
 
            March 7, 1990; and 2) whether claimant is entitled to 
 
            temporary total disability or healing period benefits or any 
 
            permanency benefits.
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant is 34 years old.  She is married and the 
 
            mother of five children.  While claimant dropped out of 
 
            school after completing the ninth grade, she did receive a 
 
            GED.  Claimant currently holds a certificate as a nurse's 
 
            aide.
 
            
 
                 Prior to March 7, 1990, the date of claimant's work 
 
            injury, claimant worked as a nurse's aide and/or restorative 
 
            aide for defendant-employer.  Her duties included ambulating 
 
            patients, performing range of motion exercises, dressing 
 
            patients, feeding them, and assisting them with other tasks.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 On the date in question, claimant arrived at 4:00 a.m.  
 
            She exited from her car and slipped on icy pavement in 
 
            defendant-employer's parking lot.  Claimant completed an 
 
            incident report and she noted that she had struck her arm 
 
            and head on the concrete.
 
            
 
                 At approximately 7:00 a.m., claimant left work because 
 
            of a severe headache.  She later sought medical care from 
 
            the company physician, Mark Johnson, M.D.  He treated 
 
            claimant in the Cass County Memorial Hospital for 
 
            approximately one week.  Dr. Johnson diagnosed claimant's 
 
            condition as:  "Cerebral contusion, concussion, not 
 
            responding, secondary to trauma" (Exhibit 14, page 97).  Dr. 
 
            Johnson modified his diagnosis to:  "Probable muscle spasms 
 
            with no other radiographic abnormalities."  (Ex. 19, p. 118)
 
            
 
                 Dr. Johnson referred claimant to Joseph M. Doro, D.O., 
 
            who placed claimant in the Mercy Medical Center.
 
            Dr. Doro diagnosed claimant's condition as:  "IMPRESSION:  
 
            This woman has injury to her neck and there is a question 
 
            whether she had a brainstem contusion or a cervical cord 
 
            contusion is raised."  (Ex. 18, p. 105)
 
            
 
                 Several diagnostic tests were conducted.  The 
 
            examinations were negative.  No abnormalities were 
 
            discovered of the skull and spine.
 
            
 
                 Theodore W. Rooney, D.O., examined claimant pursuant to 
 
            a request by Dr. Johnson.  Dr. Rooney opined that:
 
            
 
                 ASSESSMENT:
 
            (1) She has subacute neck, right shoulder, upper 
 
            back pain which still seems most 
 
            compatible with that of myofascial pain.  She 
 
            also had right gluteal pain.   All of these 
 
            areas are the sites of previous               
 
            contusion, which seems to account for these             
 
            features.  I am a little concerned because of the            
 
            localizing features about the right shoulder that            
 
            she may actually have partial rotator cuff tear,        
 
            which could also be contributing to her chronic         
 
            pain.  I do not find anything to suggest systemic            
 
            inflammatory arthritis, etc.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            RECOMMENDATION:
 
            (1) Many chronic pain managements techniques have            
 
            already been done to date.  I have recommended we            
 
            try her on some Amitriptyline, l0-20 mgs. at h.s.,      
 
            because of her poor sleep pattern.
 
            (2) I have had the nurse educator go over 
 
            relaxation techniques and other chronic 
 
            pain management techniques along 
 
            with stretch and flex exerciss [sic] 
 
            twice a day.
 
            (3) Ice Alternating with heat.
 
            (4) I have encouraged her to try to get back to an           
 
            aerobic exercise regimen.
 
            (5) Scheduled her for a three-phase bone scan to             
 
            evaluate the right shoulder girdle to make sure         
 
            there is no anatomical abnormalities.  Pending 
 
            that report we may or may not need to do an 
 
            MRI of the  shoulder to rule out rotator 
 
            cuff tear.
 
            (6) She is to call me after the above for further            
 
            recommendations to follow.
 
            
 
            (Ex. 11, p. 93)
 
            
 
                 On September 24, 1990 claimant met with Thomas W. 
 
            Bower, LPT, for a functional capacities test.  In his 
 
            report, Mr. Bower wrote:
 
            
 
                 FUNCTIONAL CAPACITY TESTING:
 
            
 
                 The patient was requested to lift from a floor to 
 
                 waist position and was virtually unable to 
 
                 accommodate any weight from a floor to waist lift.  
 
                 She recorded her pain with no resistance on the 
 
                 BTE unit to be a level 10 and stated that she 
 
                 would assess it as needing two Advil and going to 
 
                 bed.  Knee to chest and overhead lift also 
 
                 demonstrated a person unable to lift any amount of 
 
                 weight with a level 8 pain experienced.  Virtually 
 
                 no functional activity was accomplished in this 
 
                 exam.  A squat time of 30 seconds was recorded and 
 
                 the patient was constantly moving in this position 
 
                 and telling me it was very uncomfortable.  Only 8 
 
                 repetitive squats were accomplished.  The patient 
 
                 basically tells me she can sit all day with proper 
 
                 support but is unable to sit with any kind of back 
 
                 support that is up against her shoulder blades.  A 
 
                 standing maximum time of 30 minutes is recorded 
 
                 but that is somewhat dependent on the type of 
 
                 surface she is standing on.  She walks three times 
 
                 a week, approximately 1/2 mile each time.  Pulse 
 
                 rates did not change following the completion of 
 
                 the work activity.
 
            
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            AREAS OF DIFFICULTIES:
 
            
 
                 Certainly far and away the most specific area of 
 
                 inconsistency is the patient's perceived pain 
 
                 experience.  She has recorded her pain levels to 
 
                 be in a level 10 which were very carefully defined 
 
                 to her as a bedridden situation and clearly she 
 
                 was not.  Certainly strength and endurance are 
 
                 decreased, but most of the activity is terminated 
 
                 on the basis of pain ratings.
 
            
 
                 IMPRESSIONS AND RECOMMENDATIONS:
 
            
 
                 It does not appear that we are going to be 
 
                 successful in returning this patient back to a 
 
                 viable work situation until pain level responses 
 
                 are dealt with.  Certainly some form of pain 
 
                 management is necessary if we're going to be 
 
                 successful in further treating this individual.  
 
                 No work hardening or any other physical experience 
 
                 would be advocated at this time.
 
            
 
                 On the basis of this testing, it would be 
 
                 considered an invalid, or certainly a 
 
                 conditionally valid representation and certainly 
 
                 pain level responses were the primary reason for 
 
                 this.  We are unable to make any specific estimate 
 
                 since no work was really accomplished in this 
 
                 functional testing as to her work level classifi
 
                 cation.
 
            
 
            (Ex. 7, pp. 83 & 84)
 
            
 
                 Claimant participated in physical therapy for several 
 
            months.  She engaged in exercises and had various other 
 
            conservative modes of treatment.
 
            
 
                 Claimant also had developed some minor psychological 
 
            difficulties.  She was hospitalized briefly for "adjustment 
 
            disorder with depressed mood."  (Ex. 6, p. 77)  Claimant 
 
            returned to her family and day-to-day activities subsequent 
 
            to her hospital stay.
 
            
 
                 Claimant returned to work on October 1, 1990.  She 
 
            avoided lifting patients but she did push wheelchairs.  On 
 
            November 27, 1990, claimant moved from Adair, Iowa to 
 
            Elkhorn, Iowa because her spouse secured a new job.  She 
 
            terminated her position with defendant-employer.  At the 
 
            time of her separation, claimant had obtained other 
 
            employment.  She was hired by the Hy-Vee store in Atlantic, 
 
            Iowa.  Claimant worked in the Hy-Vee deli but left that 
 
            position to work in her hometown at the Danish Inn.
 
            
 
                 At the time of the hearing, claimant was employed as a 
 
            cook and a waitress.  She earned $5.50 per hour as a cook 
 
            and $4.65 per hour plus tips for work performed as a 
 
            waitress.  Her supervisor, Donald P. Larsen, restauranteur, 
 
            described claimant as an exceptional employee.
 
            
 
                                CONCLUSIONS OF LAW
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 The first issue to address is whether there is a causal 
 
            relationship between claimant's work injury and her alleged 
 
            condition.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 There is sufficient evidence claimant has established 
 
            the requisite causal connection.  Both Dr. Johnson (p. 96) 
 
            and Dr. Doro (p. 99) attribute claimant's problems to her 
 
            work injury on March 7, 1990.  Dr. Mary-Franklin G. Paulus, 
 
            M.D., concurs with their opinion relative to causal 
 
            connection.  (Ex. 1, p. 7, lines 17-25).  Medical evidence 
 
            establishes claimant's causal relationship with her work 
 
            injury.
 
            
 
                 The next issue deals with the nature and extent of 
 
            claimant's condition.  Claimant alleges she has sustained a 
 
            permanent disability.  She maintains she has an industrial 
 
            disability.
 
            
 
                 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 the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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 the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 The opinions of the two evaluating physicians vary 
 
            vastly.  Dr. Paulus opines that claimant is functionally 
 
            impaired in the area of 35 to 40 percent.  (Ex. 1, p. 9, ll. 
 
            25 through p. 10, l. 5)  She bases her opinion on the 
 
            following:
 
            
 
            
 
                    We now will attempt to list the percent 
 
                 impairment for these various findings.
 
            
 
                    Cervical flexion at 20o  with a loss of 40o = 4% 
 
                 of the whole person
 
               Hyperextension at   50o  with a loss of 25o = 2% 
 
            of the whole person
 
               Cervical rotation left 40o with a loss 40o  = 2% 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            of the whole person
 
               Cervical rotation right 60o loss of 20o     = 1% 
 
            of the whole person
 
             Left Cervical lateral tilt 15o  loss of 30o   = 2%
 
            Right Cervical lateral tilt 45 normal      0
 
               Lumbosacral forward flexion (p. 91  of 3rd 
 
            edition AMA Guides), 45o = 2% W.P. in 
 
            view of straight leg raising abnormality 
 
            seen above
 
               Lumbosacral hyperextension of 10o with loss of 
 
            15o =      5% W.P.
 
               Loss of strength of grip on right side @ 10 
 
            kg/force vs. 24 kg/force on left represents 
 
            a loss of 58% of strength (10 kg î 24 kg = 
 
            42% or loss of 58%,)multiplied 
 
            by the maximum allowable % for that 
 
            level for the median nerve, represents 35%
 
                      58% x 35% = 20%
 
            
 
                 These calculations do not include the suspicion of 
 
                 weakness of the peroneii on the right side, as 
 
                 evidenced by the abnormal shoe-wear pattern, the 
 
                 weakness detected clinically, and the calf atrophy 
 
                 measurement above.
 
            
 
                    The impression is:  Closed head trauma with                                     
 
                 concussion Cervical strain with                   
 
                 possible cord injury
 
                                   Contusion right shoulder
 
                                   Low Back strain with 
 
            possible  HNP 
 
            Adjustment Disorder with                     
 
            Depressed Mood
 
            
 
                                History of Fibromyositis
 
            
 
                 Comment:  This patient obviously had severe injury 
 
                 to the head and neck as well as the lumbosacral 
 
                 spine, in decreasing order of severity.  The fact 
 
                 that the CAT
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            scan and the MRI did not show damage does not 
 
            change the fact that physiologic damage of the 
 
            central and peripheral nervous system did occur 
 
            (initial concussion, with right facial and right 
 
            arm paralysis).  The concussion did not resolve 
 
            for a full 3 days and the paralysis pattern took 
 
            even longer.  I think this patient has been 
 
            severely affected by this accident, not only 
 
            physically, but by the emotional stress involved 
 
            as well.  It seems a bit strange also that she 
 
            never received any cervical traction during her 
 
            entire physical therapy course, but this may be 
 
            only a small matter.  She may still receive 
 
            improvement from it, even at this late hour.  I 
 
            feel this patient is attempting to overcome the 
 
            affects of this accident, and to resume a normal 
 
            life style as soon as possible.  She appears to be 
 
            anxious to return to a more professional 
 
            work-force.
 
            
 
            (Ex. 3, pp. 67-68)
 
            
 
                 She practices in orthopedic surgery and is eligible for 
 
            board certification.  Dr. Paulus has examined claimant on 
 
            one occasion, June 4, 1991.
 
            
 
                 There is a contrary opinion by Dr. Cotton.  He opines 
 
            that claimant is not functionally impaired.  He diagnoses 
 
            claimant as having "diffuse subjective pain of uncertain 
 
            etiology."  Dr. Cotton further opines that:
 
            
 
                 I felt there was no evidence of any permanent 
 
                 partial impairment or subsequent disability 
 
                 according to the AMA Guides, Third Edition, 
 
                 Revised.
 
            
 
            (Ex. E, p. 8, ll. 20-22)
 
            
 
                 In his deposition, Dr. Cotton further opines that:
 
            
 
                 I found no objective abnormalities on her physical 
 
                 examination that would account for the degree or 
 
                 the type or the persistence of the symptoms that 
 
                 she describes to the doctors.
 
            
 
            (Ex. E, p. 30, ll. 12-15)
 
            
 
                 Dr. Cotton, like Dr. Paulus, has examined claimant on 
 
            one occasion, March 31, 1992.  Dr. Cotton is board certified 
 
            in neurology and in electrodiagnostic medicine.
 
            
 
                 It is the determination of the undersigned that both 
 
            physicians are eminently qualified to render an opinion.  
 
            Both physicians are experienced.  Each one's opinion is 
 
            divergent from the other.  Therefore, it appears one 
 
            expert's opinion cancels out the opinion of the other.  
 
            Other forms of evidence are to be considered.  Equal weight 
 
            is given to each physician's opinion.
 
            
 
                 Objective test results are all in the normal range.  
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Two CT scans are normal.  An MRI is normal.  Dr. Doro, a 
 
            specialist in neurology, has diagnosed claimant as having an 
 
            acute cervical and thoracic strain.  Dr. Doro has not 
 
            provided any functional impairment rating.  Dr. Johnson, as 
 
            of September 26, 1990, has treated claimant for 
 
            "fibromyalgia/fibrositis."  (Ex. 5, p. 71)  All he notes, as 
 
            far as objective signs of claimant's condition, are muscle 
 
            spasms.
 
            
 
                 Currently, claimant only takes aspirin for pain.  
 
            Records indicate that claimant has last seen her treating 
 
            physician, Dr. Johnson on October 24, 1990.
 
            
 
                 After reviewing the entire record and hearing the 
 
            testimony, as well as visibly observing the claimant, it is 
 
            the decision of the undersigned that claimant does not have 
 
            a permanent partial disability.  No objective evidence 
 
            supports her claim.
 
            
 
                 Claimant, however, has sustained a temporary total 
 
            disability pursuant to section 85.33(1).  The section 
 
            provides that:
 
            
 
                    Except as provided in subsection 2 of this 
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 The record establishes that claimant was off of work 
 
            from March 7, 1990 until she returned to full time work on 
 
            October 1, 1990.  At that time she returned to defendant's 
 
            business establishment as a restorative aide, a position 
 
            which she held prior to the date of her injury.  Claimant, 
 
            as a consequence, is entitled to 29.714 weeks of temporary 
 
            total disability benefits at the stipulated rate of $170.04 
 
            per week.  Prior to the hearing, defendants had paid 
 
            claimant 29.429 weeks of compensation at the proper rate.
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay claimant point two-eight-five 
 
            (.285) weeks of temporary total disability benefits at the 
 
            rate of one hundred seventy and 04/l00 dollars ($170.04) per 
 
            week.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division and pursuant to rule 343 IAC 3.l.
 
            
 
                 Costs are taxed to defendants pursuant to rule 343 IAC 
 
            4.33.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of June, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                     ______________________________               
 
                                     MICHELLE A. McGOVERN
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. E. W. Wilcke
 
            Attorney at Law
 
            826 1/2 Lake Street
 
            P O Box 455
 
            Spirit Lake, Iowa  51360
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce Street  STE 200
 
            P O Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Russell S. Wunschel
 
            Attorney at Law
 
            805 N Main Street
 
            P O Box 883
 
            Carroll, Iowa  51401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1801; 1803
 
                                                Filed June 22, 1992
 
                                                MICHELLE A. McGOVERN
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                           :
 
            PATTY A. MOHR,                 :
 
                                           :
 
                 Claimant,                 :
 
                                           :
 
            vs.                            :
 
                                           :         File No. 942474
 
            ADAIR COMMUNITY HEALTH CENTER, :
 
                                           :      A R B I T R A T I O N
 
                 Employer,                 :
 
                                           :         D E C I S I O N
 
            and                            :
 
                                           :
 
            ALLIED MUTUAL INSURANCE        :
 
            COMPANY,                       :
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendants.               :
 
            ___________________________________________________________
 
            
 
            1801; 1803
 
            
 
            Claimant was awarded temporary total disability benefits as 
 
            a result of a fall on defendants' parking lot.  Claimant did 
 
            not prove that she was entitled to permanent partial 
 
            disability benefits.  All objective tests were in the normal 
 
            range.  There were only muscle spasms.  There was no 
 
            objective evidence to support claimant's claim.