BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         MICHAEL KNOX,                   :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :    File Nos. 943985/943986
 
         SYSTEM PARKING, INC.,           :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         CNA INSURANCE,                  :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         March 17, 1994 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         
 
              This agency does not have jurisdiction over claimant's 
 
         alleged injury, as the injury is based on racial discrimination.  
 
         See Miller v. Marshalltown Community School District, Appeal 
 
         Decision, September 12, 1994.  
 
         
 
              In addition, even if the agency had jurisdiction, the 
 
         deputy's findings of fact and conclusions of law are correct in 
 
         determining that claimant has failed to carry his burden of proof 
 
         that he underwent stress in the workplace greater than that 
 
         experienced by all employees.  The circumstances and events 
 
         alleged by claimant, both those allegedly involving racial 
 
         discrimination and those involving other alleged "unfair" 
 
         treatment, do not rise to the level necessary to satisfy the 
 
         "legal test" under Dunlavey v. Economy Fire and Casualty Co., 
 
         Appeal Decision, October 26, 1992.
 
         
 
              Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
              Signed and filed this ____ day of October, 1994.
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                                INDUSTRIAL COMMISSIONER
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Steven Jayne
 
         Attorney at Law
 
         5835 Grand Ave., Ste 201
 
         Des Moines, Iowa 50312
 
         
 
         Ms. Coreen K. Bezdicek
 
         Mr. Roy M. Irish
 
         Attorneys at Law
 
         729 Insurance Exchange Bldg.
 
         Des Moines, Iowa 50309
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                       2301; 2204
 
                                       Filed October 21, 1994
 
                                       Byron K. Orton
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         MICHAEL KNOX,                   :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :    File Nos. 943985/943986
 
         SYSTEM PARKING, INC.,           :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         CNA INSURANCE,                  :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         2301; 2204
 
         
 
              Claimant alleged that racial discrimination had caused him 
 
         mental stress.  Held on appeal that this agency lacks 
 
         jurisdiction over claims based on racial discrimination, citing 
 
         Miller v. Marshalltown Community School District, Appeal 
 
         Decision, September 12, 1994.
 
         
 
              Also held that even if the agency had jurisdiction, claimant 
 
         did not carry his burden to meet both the medical and legal tests 
 
         for a mental-mental injury.
 
         
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
           
 
                                          
 
            MICHAEL KNOX,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 943985 & 
 
                                                          943986
 
            SYSTEM PARKING, INC.,         :
 
                                               A R B I T R A T I O N
 
                 Employer,                :
 
                                                  D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Michael 
 
            Knox, claimant, against System Parking, Inc., employer, and 
 
            CNA Insurance Company, insurance carrier, defendants, to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            a result of injuries sustained on November 1, 1989 and May 
 
            7, 1990.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner on February 23, 
 
            1994, in Des Moines, Iowa.  The record was considered fully 
 
            submitted at the close of the hearing.  The claimant was 
 
            present and testified.  Also present and testifying were 
 
            Estillio Johnson, John Goode and Floyd Faber.  The 
 
            documentary evidence identified in the record consists of 
 
            joint exhibits 1 through 9.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and order approving same 
 
            dated February 23, 1994, the parties have presented the 
 
            following issues for resolution:
 
            
 
                 .  Whether claimant sustained injuries on November 1, 
 
            1989 and May 7, 1990 which arose out of and in the course of 
 
            employment;
 
            
 
                 .  Whether claimant's May 7, 1990 injury resulted in 
 
            temporary disability from May 7, 1990 through January 16, 
 
            1992;
 
            
 
                 .  Whether claimant's May 7, 1990 injury resulted in 
 
            permanent disability and, if so, the extent thereof, and
 
            
 
                 .  Whether claimant is entitled to certain medical 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            benefits under Iowa Code section 85.27.
 
            
 
                     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                              FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on February 15, 1943, and has a GED 
 
            certificate.  He completed two semesters at community 
 
            college.  His past work was as a security officer, desk 
 
            clerk and welder.  He commenced working for employer in June 
 
            of 1984 as a cashier in an enclosed parking garage on Fourth 
 
            and Grand Avenue in Des Moines, Iowa.  Claimant alleges a 
 
            psychological injury as a consequence of not being promoted 
 
            due to racial discrimination by management.  Claimant 
 
            alleges that the cumulative effect of the mental stimulus 
 
            associated with his employment rendered him disabled on or 
 
            about May 7, 1990, the date he was advised by his 
 
            psychiatrist to discontinue his employment with employer.  
 
            (exhibit 1-1).  Claimant contends that arbitrary and/or 
 
            unreasonable employment practices directed toward him may 
 
            have been motivated, in whole or in part, by racial 
 
            discrimination on the part of his supervisors.  
 
            
 
                 Claimant is a black male adult who was employed by 
 
            employer from June 1984 through May 7, 1990.  He worked the 
 
            midnight shift which ended at 8 a.m.  He earned $7.80 an 
 
            hour.  In addition to serving as cashier, he assisted the 
 
            manager by counting tickets and balancing them against green 
 
            sheets.  In addition, he emptied trash cans, mopped the 
 
            floors and prepared the cashier's tray for the next day.  
 
            Since claimant was confined to an enclosed booth and worked 
 
            a shift that had minimal traffic, he was allowed to pass his 
 
            time by watching television, reading and playing chess. 
 
            
 
                 Claimant testified that in 1987, he requested a 
 
            transfer from the Fourth and Grand garage because he had a 
 
            conflict with Herman Reeve, the manager at that location.  
 
            Mike Brice, the general manager at that time, intervened in 
 
            the conflict.  He was rewarded with a pay increase in 
 
            recognition of the extra work he was performing.  Claimant 
 
            testified that Mr. Brice also told him that he was in line 
 
            for a managerial position.  In a deposition taken of Mr. 
 
            Brice on December 13, 1993, Mr. Brice emphatically denied 
 
            that he ever promised claimant or in anyway indicated to him 
 
            that he was in line for a managerial position.  (ex. 9-8).
 
            
 
                 From the spring of 1987 through the fall of 1989, John 
 
            Goode was the manager of the Fourth and Grand garage and 
 
            supervised claimant.  In November 1989, Mr. Goode replaced 
 
            Mr. Brice as general manager and moved to the Fifth and Keo 
 
            facility.  At the same time, Floyd Faber was made manager of 
 
            the Fourth and Grand garage.  Claimant testified that he may 
 
            have been passed over for promotion because of his race and 
 
            recited various incidents of what he perceived to be racial 
 
            discriminatory behavior by management.  Both Mr. Goode and 
 
            Mr. Faber testified.  They denied claimant's contentions.  
 
            Mr. Brice testified that race was not a factor in promoting 
 
            either Mr. Goode or Mr. Faber.  (ex. 9-13).  Mr. Brice 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            testified that John Goode was promoted by working his way up 
 
            through the system.  He had been a manager and ran the 
 
            maintenance division for a period of time.  Mr. Faber, like 
 
            Mr. Goode, had worked for the previous two operators who 
 
            managed the city parking garages for a number of years prior 
 
            to System Parking taking them over.  He is a college 
 
            graduate and had prior managerial experience.  Mr. Brice 
 
            felt that both of these men were more qualified for the 
 
            positions to which they were promoted than was claimant.
 
            
 
                 Claimant testified that he continued to work and 
 
            perform his usual duties after November 1989 because he was 
 
            promised a raise by Mr. Goode.  He stated that he was also 
 
            told that other managerial positions would open and that he 
 
            was next in line for promotion.  On April 3, 1990, claimant 
 
            presented to Hector W. Cavallin, M.D., psychiatrist, with 
 
            complaints of extreme stress.  He related this stress to 
 
            being passed over for a management position which he stated 
 
            had been repeatedly promised to him.  Despite the fact that 
 
            he had been hospitalized in the mental wing at Broadlawns 
 
            Hospital in Des Moines, Iowa, in 1962, claimant gave Dr. 
 
            Cavallin no history of prior mental illness.  He also 
 
            related that he may be the victim of racial discrimination 
 
            since all of the people in management where white.  Dr. 
 
            Cavallin advised him to consult an attorney regarding his 
 
            possible legal claims and to make another appointment with 
 
            him sometime thereafter.  At this time he diagnosed acute 
 
            reaction to stress.  (ex. 2-15).
 
            
 
                 According to Dr. Cavallin he next saw claimant on May 
 
            29, 1990.  However, on May 7, 1990, he wrote, without 
 
            explanation that claimant was suffering from an acute 
 
            reaction to stress and was totally disabled and unable to 
 
            participate in any working situation.  (ex. 1-1).  On May 
 
            16, 1990, Dr. Cavallin wrote to claimant's attorney that in 
 
            his opinion, claimant's traumatic disorder was related to 
 
            his employment duties with System Parking.  (ex. 1-2).  
 
            Claimant then began a regular course of one-half hour 
 
            psychotherapy sessions with Dr. Cavallin which has continued 
 
            through the present time with the exception of two 
 
            interruptions for hospitalizations in June 1990 and October 
 
            1991.  (ex. 1, pages 3-17; ex. 2-6).
 
            
 
                 Claimant was hospitalized at Iowa Lutheran Hospital 
 
            from June 15 through June 25, 1990.  He was admitted after 
 
            reportedly having difficulty sleeping and having nightmares 
 
            of killing people at work.  During the course of 
 
            hospitalization, claimant completed an MMPI on June 19, 
 
            1990.  It was determined that the profile was technically 
 
            invalid in view of the high number of unusual symptoms 
 
            endorsed.  The results were discussed with claimant and he 
 
            was given the instrument to complete again which he did on 
 
            June 22, 1990.  The second profile was again determined to 
 
            be invalid, the elevations on this profile being inflated to 
 
            a much greater degree than was the case on the first 
 
            profile.  Nevertheless, although of questionable technical 
 
            validity, it was felt that the profile was consistent with 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the claimant's clinical presentation of depression, 
 
            interpersonal distrust and bizarre mentation.  Claimant 
 
            related his emotional problems to being passed over for a 
 
            promotion.  (ex. 6, pp. 1-9).
 
            
 
                 Claimant was admitted to Iowa Lutheran Hospital on 
 
            October 16, 1991.  At this time he presented with increasing 
 
            auditory hallucinations and paranoid delusions.  At the time 
 
            of discharge on October 19, 1991, it was determined that he 
 
            was suffering from toxic psychosis, chronic depression, 
 
            gastritis and disequilibrium secondary to medication.  (ex. 
 
            1, pp. 10-14).
 
            
 
                 At the hearing, claimant blamed the aforementioned 
 
            episode on medication prescribed by Michael J. Taylor, M.D.  
 
            Claimant saw Dr. Taylor at the request of defendants on 
 
            November 29, 1990.  At that time, Dr. Taylor diagnosed major 
 
            depressive disorder which he later explained does not imply 
 
            any particular degree of severity.  However, he felt that 
 
            claimant's disorder was severe.  It was his opinion that the 
 
            depression was caused, or at least aggravated, by claimant's 
 
            perception that he had been passed over for a promotion 
 
            which he believed he deserved and which he believed he was 
 
            told he would get.  At no time, did claimant mention to Dr. 
 
            Taylor that his failure to be promoted was racially 
 
            motivated.  (ex. 4).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The issue to be determined is whether claimant has 
 
            established a mental injury arising out of and in the course 
 
            of his employment which meets the standards of liability 
 
            under Iowa law.  Claimant alleges that the cumulative effect 
 
            of the mental stimulus associated with his employment 
 
            rendered him disabled on or about May 7, 1990, when he was 
 
            advised by Dr. Cavallin to discontinue his employment.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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 standard for determining whether a mental injury 
 
            arose out of and in the course of employment was discussed 
 
            in Ohnemus v. John Deere Davenport Works, (Appeal Decision, 
 
            February 26, 1990).
 
            
 
                    In order to prevail claimant must prove that he 
 
                 suffered a non-traumatically caused mental injury 
 
                 that arose out of and in the course of his 
 
                 employment.  This matter deals with what is 
 
                 referred to as a mental-mental injury and does not 
 
                 deal with a mental condition caused by physical 
 
                 trauma or physical condition caused by mental 
 
                 stimulus.  The supreme court in Schreckengast v. 
 
                 Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985), 
 
                 recognized that issues of causation can involve 
 
                 either causation in fact or legal causation.  As 
 
                 stated in footnote 3 at 369 N.W.2d 810:
 
            
 
                         We have recognized that in both civil 
 
                      and criminal actions causation in fact 
 
                      involves whether a particular event in 
 
                      fact caused certain consequences to 
 
                      occur.  Legal causation presents a 
 
                      question of whether the policy of the 
 
                      law will extend responsibility to those 
 
                      consequences which have in fact been 
 
                      produced by that event.  State v. Marti, 
 
                      290 N.W.2d 570, 584-85 (Iowa 1980).  
 
                      Causation in fact presents an issue of 
 
                      fact while legal causation presents an 
 
                      issue of law.  Id.
 
            
 
                 That language was the basis of the language in 
 
                 Desgranges v. Dept of Human Services, (Appeal 
 
                 Decision, August 19, 1988) which discussed that 
 
                 there must be both medical and legal causation for 
 
                 a nontraumatic mental injury to arise out of and 
 
                 in the course of employment.  While Desgranges 
 
                 used the term medical causation the concept 
 
                 involved was factual causation.  Therefore, in 
 
                 this matter it is necessary for two issues to be 
 
                 resolved before finding an injury arising out of 
 
                 and in the course of employment - factual and 
 
                 legal causation.  Proving the factual existence of 
 
                 an injury may be accomplished by either expert 
 
                 testimony or nonexpert testimony.
 
            
 
                    ....
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                    Not only must claimant prove that his work was 
 
                 the factual cause of his mental injury, claimant 
 
                 must also prove that the legal cause of his injury 
 
                 was his work.  In order to prove this legal 
 
                 causation claimant must prove that his temporary 
 
                 mental condition "resulted from a situation of 
 
                 greater dimensions than the day to day mental 
 
                 stresses and tensions which all employees must 
 
                 experience."  Swiss Colony v. Department of ICAR, 
 
                 240 N.W.2d 128, 130 (Wisc. 1976).
 
            
 
                 The Iowa Supreme Court has not yet determined whether 
 
            stress, without accompanying physical injury, may constitute 
 
            legal causation.  However, this agency has consistently 
 
            utilized the "Wisconsin standard" established in Swiss 
 
            Colony, 240 N.W.2d 128, in determining whether a 
 
            mental-mental injury may be compensable.  See, e.g., Render 
 
            v. Iowa Department of Human Services, (App. Dec. April 29, 
 
            1988); Kostelac v. Feldman's Inc., (App. Dec. June 13, 
 
            1990); Kelly v. Sheffield Care Center, (App. Dec. October 
 
            31, 1991); and Ohnemus and Desgranges.
 
            
 
                 Dr. Cavallin, claimant's primary treating psychiatrist, 
 
            opined on numerous occasions that claimant's acute reaction 
 
            to stress which evolved into a major depressive disorder was 
 
            caused by his work environment specifically a climate 
 
            created by his supervisors wherein he was denied a promotion 
 
            because of his race.  Dr. Cavallin admitted that his 
 
            opinions were based only on the history given to him either 
 
            by claimant or claimant's attorney.  (ex. 3, pp. 27-28, 31).  
 
            On the other hand, Dr. Taylor felt that claimant experienced 
 
            no unusual stress which may have precipitated his subsequent 
 
            difficulties.  (ex. 4,-1).
 
            
 
                 Medical causation is strictly an examination into the 
 
            cause and effect relationship between the stressors and 
 
            tensions at work and the mental difficulties.  If the 
 
            medical causation issue is resolved in favor of claimant, 
 
            legal causation is then examined.  The Iowa Supreme Court 
 
            has held that medical causation cannot be met and no 
 
            workers' compensation benefits can be recovered when 
 
            "employment merely provided a stage for the nervous injury."  
 
            Newman v. John Deere Ottumwa Works of Deere and Co., 372 
 
            N.W.2d 199, 203 (1985).  Medical causation fails when it is 
 
            shown that claimant had a misperception of the extent of 
 
            work stresses in the work place.  McAndrew v. Deere and Co. 
 
            Davenport Works, file numbers 936569, 735429 (Review-Reopen 
 
            Dec. Oct. 15, 1991).  In McAndrew, the deputy industrial 
 
            commissioner held that claimant's misperception regarding 
 
            the employer's safety rules and the fact that claimant felt 
 
            the company had a vendetta against him and were out to kill 
 
            him were unfounded based on the evidence at the hearing.  
 
            Id. at pp. 9-10.
 
            
 
                 It is unfortunate that claimant's own perception of his 
 
            work environment appears to be so distorted that he reacted 
 
            in a depressive manner.  Claimant's report of discrimination 
 
            is much less persuasive than the combined testiony of John 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Goode and Floyd Faber.  Nevertheless, claimant is not 
 
            entitled to workers' compensation benefits if the so-called 
 
            stressors in his life are not real.  "An imaginary event 
 
            cannot be a proximate cause of an injury."  Newman, 373 
 
            N.W.2d at 202.  Claimant's internal perceptions must be 
 
            consistent with external reality before those perceptions 
 
            can form the basis of a compensable work-related injury.  
 
            Claimant's beliefs, no matter how sincerely held, are 
 
            inadequate to show a causal relationship between his mental 
 
            condition and his employment.
 
            
 
                 After carefully considering all of the evidence in this 
 
            case, including the testimony received at the hearing, the 
 
            greater weight of the evidence does not support claimant's 
 
            claim that his mental condition was caused by his work 
 
            environment.  
 
            
 
                 Even if claimant proved by a preponderance of the 
 
            evidence that his work environment was the factual cause of 
 
            his mental disorder, he must also prove that the legal cause 
 
            of his mental problems was his work.  Legal causation 
 
            involves a determination of whether the work stressors and 
 
            tensions, when viewed objectively and not as perceived by 
 
            claimant, were out of the ordinary from the countless 
 
            emotional strains and differences that employees encounter 
 
            daily without serious mental injury.  Swiss Colony, N.W.2d 
 
            at 130.
 
            
 
                 To meet the legal causation test, claimant must show 
 
            that he encountered a work situation of greater dimensions 
 
            than the day-to-day mental stressors which all employees 
 
            must experience.  Rocher v. Dept. of Community Corrections, 
 
            file number 910537 (App. Dec. June 17, 1993).
 
            
 
                 Claimant's uncorroborated and disputed testimony 
 
            alleges that he was promised a promotion from his cashier 
 
            position to that of a manager.  When Floyd Faber was 
 
            appointed manager in November 1989, claimant felt that he 
 
            had been betrayed by management.  Nevertheless, claimant 
 
            continued to work until May 1990 when Dr. Cavallin, who had 
 
            only seen him on one occasion took him off work.  Claimant 
 
            claims that after being with the company for five years and 
 
            performing extra duties during the course of his job as a 
 
            cashier, he merited a promotion to management.  Instead, the 
 
            position was given to a younger individual allegedly because 
 
            management would not admit blacks into their ranks.  When 
 
            comparing claimant's credentials to those of Floyd Faber, 
 
            claimant's expectations appear unrealistic.  Mr. Faber was a 
 
            college graduate who had some previous management 
 
            experience.  Claimant is a high school graduate without 
 
            demonstrated comparable management experience.  
 
            Qualifications rather than race would appear to be the 
 
            motivating factor behind promoting Mr. Faber rather than 
 
            claimant.  
 
            
 
                 In any event, claimant must show that he encountered a 
 
            work situation of greater dimensions than the day-to-day 
 
            mental stressors which all employees must experience.  All 
 
            work has stressful components including personality clashes 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            with coworkers and supervisors, unpleasant tasks, being 
 
            undervalued or not valued by management, and being passed 
 
            over for promotions.  Neither companies nor managers, no 
 
            matter how good their intentions, can eliminate employee 
 
            stress.  
 
            
 
                 The greater weight of the evidence does not establish 
 
            that claimant's work stress was out of the ordinary or of 
 
            greater dimensions than the day-to-day mental stressors and 
 
            tensions which all employees must experience.  The evidence 
 
            before the undersigned does not support claimant's 
 
            contentions that he was denied a promotion because of his 
 
            race.  Claimant failed to show any discriminatory conduct on 
 
            the part of employer.  Claimant was not promoted because he 
 
            was not the best qualified person for the job.
 
            
 
                 Because claimant has failed to establish both factual 
 
            and legal causation, this case must be resolved in favor of 
 
            defendants.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 Claimant shall take nothing from these proceedings.
 
            
 
                 The parties shall pay their own costs.
 
            
 
                 Signed and filed this ________ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Steven Jayne
 
            Attorney at Law
 
            5835 Grand Ave STE 201
 
            Des Moines, Iowa  50312
 
            
 
            Ms. Coreen K. Bezdicek
 
            Mr. Roy Irish
 
            Mr. Charles Cutler
 
            Mr. Jeffrey Baker
 
            Attorneys at Law
 
            729 Insurance Exchange Bldg
 
            Des Moines, Iowa  50309
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                                2204
 
                                                Filed March 17, 1994
 
                                                Jean M. Ingrassia
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            MICHAEL KNOX,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                           File No. 943985 & 943986
 
            SYSTEM PARKING, INC.,    
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            CNA INSURANCE, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            2204
 
            In a mental-mental stress case, claimant failed to prove 
 
            both medical and legal causation since his perceptions were 
 
            not reliable and the work conditions were not of greater 
 
            dimensions than the day-to-day stressors which all employees 
 
            experience.
 
            
 
            Claimant, a black male, claimed that his mental condition 
 
            was caused by his work environment.  He perceived that he 
 
            was not promoted to parking garage manager because of 
 
            management's racial discrimination policies.
 
            Claimant's internal perceptions found to be inconsistent 
 
            with the external reality.  An imaginary event cannot be the 
 
            proximate cause of any injury.  Newman v. John Deere Ottumwa 
 
            Works of Deere and Co., 373 N.W.2d 199, 203 (Iowa 1985).
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LYNN JEFFRESS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 944019
 
            FIRESTONE TIRE AND RUBBER,    :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANIES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Lynn 
 
            Jeffress, claimant, against Firestone Tire and Rubber 
 
            Company, employer, and Cigna Insurance Companies, insurance 
 
            carrier, for benefits as the result of an alleged injury 
 
            which occurred on November 13, 1989.  A hearing was held in 
 
            Des Moines, Iowa, on May 19, 1992, and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Tom L. Drew.  Defendants were represented by 
 
            Anne L. Clark.  The record consists of the testimony of Lynn 
 
            Jeffress, claimant; joint exhibit 1 with subparts A, B and C 
 
            and joint exhibit 2 with subparts A, B and C.  
 
            
 
                                   stipulations
 
            
 
                 At the time of the hearing claimant withdrew the issue 
 
            of penalty benefits and defendants withdrew the issue of 
 
            credit for nonoccupational group health plan benefits, both 
 
            of which were designated as hearing issues on the hearing 
 
            assignment order.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant sustained an injury on November 13, 
 
            1989, to her right eye which arose out of and in the course 
 
            of employment with employer;
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability;
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits; and if so, the extent of benefits to which she is 
 
            entitled;
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Whether, in the event of an award, claimant is entitled 
 
            to benefits pursuant to Iowa Code section 85.34(p) or 
 
            whether claimant is entitled to benefits under Iowa Code 
 
            section 85.34(2)(q); and
 
            
 
                 Whether claimant is entitled to medical benefits and 
 
            medical mileage.
 
            
 
                                 findings of fact
 
            
 
                                      injury
 
            
 
                 It is determined that claimant sustained an injury to 
 
            her right eye on November 13, 1989, which arose out of and 
 
            in the course of employment with employer.
 
            
 
                 Claimant is a five-year employee of employer.  She 
 
            testified that on November 13, 1989, an air hose caused dust 
 
            to get in her eyes.  A short time later she felt like 
 
            something was scratching in her right eye.  Claimant 
 
            testified that the plant nurse found something imbedded in 
 
            her cornea and ran a Q-tip over it several times trying to 
 
            extract it, but it would not come out.  The Q-tip procedure 
 
            caused claimant a great deal of pain.  
 
            
 
                 The company medical record shows that on November 13, 
 
            1989, claimant complained of a foreign body in the right eye 
 
            which was located just outside the pupil at nine o'clock.  
 
            The note indicates that the nurse was unable to remove it 
 
            with a wet Q-tip.  Claimant was referred to Louis H. 
 
            Fingerman, M.D., an ophthalmologist (exhibit 1, page 22).  
 
            Dr. Fingerman recorded on November 13, 1989, that at about 3 
 
            a.m. claimant was working with an air hose when a foreign 
 
            particle got into her right eye.  He removed a tiny 
 
            nonmetallic foreign body imbedded in the right cornea (ex. 
 
            1, p. 5).  
 
            
 
                 On October 14, 1989, James L. Blessman, M.D., the plant 
 
            physician, saw claimant and noted that the cornea was clear, 
 
            but that she had multiple flecks of rubber material on both 
 
            the upper and lower lid of both eyes (ex. 1, p. 18).
 
            
 
                 Claimant testified that she continued to have blurring, 
 
            irritation, watering, and soreness and returned to 
 
            employer's medical department on November 16, 1989, and saw 
 
            Dr. Blessman.  He found a dendritic pattern in her right 
 
            eye.  He sent claimant to the ophthalmologist to determine 
 
            whether this was a herpes simplex virus or simply the 
 
            residuals of her previous foreign body (ex. 1, p. 18).  
 
            
 
                 On November 16, 1989, claimant saw Michael J. 
 
            Versackas, M.D., an ophthalmologist and an associate of Dr. 
 
            Fingerman, who stated that the small dendritic figures at 
 
            the site of the foreign body removal were compatible with a 
 
            herpetic keratitis, which he said was evidently triggered by 
 
            the trauma of the injury.  She continued to have light 
 
            sensitivity (ex. 1, p. 5).  Dr. Versackas continued to see 
 
            claimant on November 20, 1989; November 22, 1989; November 
 
            25, 1989; December 1, 1989; and December 5, 1989.  On 
 
            December 13, 1989, he formed the impression that claimant 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            had herpetic keratouveitis (ex. 1, p. 6).  He saw claimant 
 
            again on January 8, 1990.  On January 22, 1990, he stated 
 
            that this was a workers' compensation injury (ex. 1, p. 6).  
 
            He continued to see claimant on January 29, 1990; February 
 
            12, 1990 and February 20, 1990.  On March 26, 1990, he 
 
            recorded in his notes:
 
            
 
                 I sent a letter to Dr. Blessman, the medical 
 
                 director at Firestone, indicating that I feel that 
 
                 this is a workman's comp injury because of the 
 
                 fact that it was triggered by a workman's comp 
 
                 injury, although I discussed with the patient the 
 
                 fact that this could only be triggered in a 
 
                 susceptible person, not in everyone.
 
            
 
            (exhibit 1, page 6)
 
            
 
                 Dr. Versackas continued to see claimant on April 9, 
 
            1990, and May 30, 1990.  On June 13, 1990, he noted that Dr. 
 
            Blessman indicated that although it is possible for trauma 
 
            to trigger the infection, he did not feel it should be 
 
            considered a workers' compensation injury (ex. 1, p. 7).  
 
            Dr. Versackas continued to see claimant on July 13, 1990, 
 
            and July 20, 1990.  On July 27, 1990, he noted that the 
 
            company had decided to call this a workers' compensation 
 
            injury and to cover the problems (ex. 1, p. 7).  He 
 
            continued to see claimant on July 13, 1990; July 20, 1990; 
 
            July 27, 1990; August 10, 1990; and September 10, 1990.  On 
 
            September 13, 1990, he stated that Dr. Blessman, medical 
 
            director from Firestone, called on September 13, 1990, and 
 
            questioned how much of the injury could be workers' 
 
            compensation and how much was related to an underlying 
 
            herpetic condition.  Dr. Versackas noted, "We discussed the 
 
            fact that I felt that the precipitating event based on the 
 
            history seemed to have [been] workmen's comp related but 
 
            this was admittedly a long-term problem that could last for 
 
            months or years and determining how much was workmen's comp 
 
            and how much wasn't was something I had great difficulty in 
 
            doing." (ex. 1, p. 7).  
 
            
 
                 On October 11, 1990, Dr. Versackas noted that claimant 
 
            had central corneal scarring.  The doctor saw claimant on 
 
            November 10, 1990; November 26, 1990; and February 13, 1990. 
 
            On April 9, 1991, Dr. Versackas stated that the corneal 
 
            scarring, which was secondary to her previous keratitis 
 
            might fade over time (ex. 1, p. 9).
 
            
 
                 Dr. Blessman stated in a memorandum dated September 28, 
 
            1990, that there is a question as to whether this was a 
 
            primary herpes keratitis or a recurrence.  
 
            
 
                 Irrespective of whether it was primary or a recurrence, 
 
            the facts remain (1) that claimant was asymptomatic prior to 
 
            this injury where she received a foreign body in her eye at 
 
            work and (2) that keratitis developed at the site of where 
 
            the foreign body was removed.
 
            
 
                 The record is silent as to whether the experience of 
 
            the nurse rubbing a Q-tip over the site of the imbedded 
 
            foreign object caused or contributed to either the scarring 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            or the keratitis, but the safest practice is to have only an 
 
            ophthalmologist remove a foreign body from an eye.
 
            
 
                 Dr. Blessman speculated that if the infection was 
 
            primary, it was probably smoldering in her eye even before 
 
            the foreign body because the incubation period is somewhere 
 
            around seven to ten days.  Dr. Blessman then makes a hearsay 
 
            statement that Dr. Versackas told him that claimant had 
 
            likely been having recurrent episodes of herpes keratitis in 
 
            her eye that were relatively asymptomatic until she got the 
 
            foreign body that served as an irritant to the eye and set 
 
            up the increased inflammation and symptoms.  
 
            
 
                 With respect to a primary infection, even if the sheer 
 
            speculation of Dr. Blessman is accepted that herpes 
 
            keratitis was in a seven to ten-day incubation state, 
 
            nevertheless, the evidence from the treating physician, Dr. 
 
            Versackas, established that the foreign body which entered 
 
            claimant's eye at work was the precipitating factor which 
 
            caused all of claimant's ensuing problems.
 
            
 
                 With respect to a recurrence, Dr. Blessman made a 
 
            hearsay statement that Dr. Versackas told him that claimant 
 
            was having recurrent episodes of herpes keratitis.  First of 
 
            all, it cannot be found in the evidence from Dr. Versackas 
 
            that he ever made such a statement.  There is no evidence 
 
            that claimant was having recurrent episodes of herpes 
 
            keratitis prior to this injury.  Furthermore, the testimony 
 
            of Dr. Versackas established that the foreign body in the 
 
            eye at work triggered the trauma in claimant's right eye.
 
            
 
                 Claimant denied that she had any similar problems prior 
 
            to this injury.  Employer's medical records show that on 
 
            March 31, 1989, prior to this injury, claimant complained of 
 
            something in her right eye and a foreign body was seen at 
 
            the center cornea which the plant nurse was unable to remove 
 
            (ex. 1, p. 20).  On that occasion claimant was sent to Dr. 
 
            Fingerman and he found a metal foreign body with an 
 
            associated rust ring on the central cornea which he treated 
 
            and removed (ex. 1, p. 5).  Claimant testified that she had 
 
            no further troubles after this incident.  She did not miss 
 
            any work.  She had no blurring or other visual problems.  
 
            Prior to that the company medical records show that on June 
 
            24, 1988, claimant complained of something in her right eye, 
 
            no foreign body was seen, the cornea was clear and the eye 
 
            was flushed (ex. 1, p. 19).  
 
            
 
                 Even assuming claimant had a preexisting eye condition 
 
            which was latent or which predisposed the herpes keratitis 
 
            and even assuming that claimant was susceptible to herpes 
 
            keratitis, nevertheless, it was the foreign body in the 
 
            right eye on November 13, 1989, which precipitated all of 
 
            the treatment which followed after that incident.  
 
            
 
                 An employer takes an employee is as is condition and, 
 
            therefore, takes the employee subject to any active or 
 
            dormant health impairments.  Lawyer and Higgs, Iowa Workers' 
 
            Compensation--Law and Practice, (2d ed.) section 4-2, page 
 
            23.  In Iowa, the workers' compensation statute prescribes 
 
            no standard of fitness to which the employee must conform 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            and compensation is not based upon any implied warranty of 
 
            perfect health or of immunity from latent and unknown 
 
            tendencies to disease, which may be develop into positive 
 
            ailments, if incited to activity through any cause 
 
            originating in the performance of the work for which the 
 
            employee is hired.  Hanson v. Dickinson, 188 Iowa 728, 732, 
 
            176 N.W. 823, 824 (1920).  
 
            
 
                 A preexisting condition which is aggravated or 
 
            accelerated or lighted up by employment activity is deemed a 
 
            personal injury under the Iowa Workers' Compensation Law.  
 
            Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Jacques v. Farmers Lumber & Supply Co,, 242 Iowa 548, 47 
 
            N.W.2d 236 (1951); Fraze v. McClelland Co., 200 Iowa 944, 
 
            205 N.W. 737 (1925); Farrow v. What Cheer Clay Prod. Co., 
 
            198 Iowa 922, 200 N.W.625 (1924).
 
            
 
                 Dr. Blessman further related that he visited with two 
 
            other eye specialists in Des Moines, specifically, Dr. 
 
            Silberman and Dr. Rullan, and it was their opinion that 
 
            herpes keratitis was due to an infection and would not be 
 
            particularly related to the foreign body or injury that 
 
            occurred here at work, but was more likely a more general 
 
            medical disease (ex. 1, p. 17).  The hearsay statements of 
 
            Dr. Silberman and Dr. Rullan via the route of Dr. Blessman 
 
            on the ultimate fact of causal connection to be decided in 
 
            this case is unacceptable evidence.  Furthermore, since Dr. 
 
            Blessman is the plant physician, these hearsay remarks may 
 
            well be self-serving.  If defendants wanted the evidence of 
 
            Dr. Silberman and Dr. Rullan considered in the determination 
 
            of the issues in this case, they should have obtained their 
 
            statements firsthand by either written report or deposition 
 
            rather than hearsay statements from the employer's medical 
 
            director.  
 
            
 
                 Dr. Blessman also stated that Dr. Versackas told him, 
 
            another hearsay statement, that claimant's future long-term 
 
            care would not be considered work related (ex. 1, p. 17), 
 
            however, Dr. Versackas himself stated that he was not able 
 
            to make such a determination because of the great difficulty 
 
            in doing so (ex. 1, p. 7).
 
            
 
                 Dr. Blessman added one more hearsay statement by 
 
            stating that it was Dr. Versackas' definite opinion that the 
 
            patient had recurrent herpes keratitis in the past and the 
 
            foreign body simply flared it up and made it more 
 
            symptomatic temporarily (ex. 1, p. 17).  A close examination 
 
            of all of Dr. Versackas' office notes and reports does not 
 
            support this statement of Dr. Blessman.  Furthermore, even 
 
            if the statement was true, defendants are liable for an 
 
            aggravation of a preexisting condition even if that 
 
            preexisting condition originates apart from claimant's 
 
            employment.  Lundquist v. Firestone Tire and Rubber Co., 
 
            IAWC 371 (App. Dec. 1989).  
 
            
 
                 An employee is not entitled to compensation for the 
 
            result of a preexisting injury or disease, but when the 
 
            preexisting injury or disease is aggravated, accelerated, 
 
            worsened, lighted up, then defendants are liable to the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            extent that the injury or aggravation of the preexisting 
 
            condition causes medical treatment, time off work or 
 
            permanent disability.  Yeager v. Firestone Tire and Rubber 
 
            Co., 253 Iowa 369 112 N.W.2d 299 (1961).  Claimant testified 
 
            that she had no knowledge of any previous herpes keratitis 
 
            nor had she experienced any similar symptoms prior to the 
 
            injury of November 13, 1989.  Claimant's two prior right eye 
 
            problems appear to have occurred at work and were treated by 
 
            the plant medical department or Dr. Fingerman on June 24, 
 
            1988, and March 31, 1989 (ex. 1, pp. 20-21) rather than 
 
            independent of her employment.  
 
            
 
                 J.D. Barker, O.D., a doctor of optometry, stated that 
 
            he had seen claimant on December 4, 1987, at which time she 
 
            had 20/20 vision and no scars on her cornea.  He performed 
 
            and independent evaluation for claimant on September 12, 
 
            1991, and found a dense corneal scar, triangular in shape 
 
            with the base at the nine o'clock position and the tip of 
 
            the triangle approaching on the central cornea.  Dr. Baker 
 
            stated:
 
            
 
                 ...Because the only significant event in her 
 
                 history since 1987 was the injury and subsequent 
 
                 dendritic ulcer in the right eye, I would conclude 
 
                 that her scarring and decrease in vision is a 
 
                 direct result of her accident and subsequent 
 
                 scarring.  It has been well established in 
 
                 literature that dendritic ulcers can be triggered 
 
                 by traumatic injuries to the eye.  The scarring 
 
                 left on Lynn's cornea will likely result in a 
 
                 permanent vision loss.
 
            
 
            (exhibit 1, pages 10-11)
 
            
 
                 On November 16, 1989, Dr. Versackas said that the small 
 
            dendritis figures at the site of the foreign body removal 
 
            were compatible with a herpetic keratitis which was 
 
            evidently triggered by the trauma of the injury (ex. 1, p. 
 
            5).  On January 2, 1990, he said that this was a workers' 
 
            compensation injury (ex. 1, p. 6).
 
            
 
                 Dr. Versackas wrote to Dr. Blessman on March 26, 1990, 
 
            that this injury was the cause of claimant's injury and 
 
            disability.  Dr. Versackas stated:
 
            
 
                 This letter is to certify that I have examined 
 
                 Lynn Jeffress on numerous occasions in my office.
 
            
 
                 On November 16, 1989, the patient was noted to 
 
                 have herpetic keratitis that seemed to have been 
 
                 triggered by the trauma of a work-related foreign 
 
                 body 3 days earlier.  It is known that trauma can 
 
                 trigger herpetic keratitis in susceptible 
 
                 individuals.  For this reason, I feel that the 
 
                 patient's multiple exams since that time should be 
 
                 considered workman's compensation.
 
            
 
            (exhibit 1, page 2)
 
            
 
                 On September 13, 1990, Dr. Versackas clearly told Dr. 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Blessman that the precipitating event made this a workers' 
 
            compensation claim in his opinion (ex. 1, p. 7).
 
            
 
                 Wherefore, it is determined that claimant did sustain 
 
            an injury to her right eye on November 13, 1989, which arose 
 
            out of and in the course of employment with employer.
 
            
 
                 The direct, firsthand, clear, unequivocal, and 
 
            convincing statements of Dr. Versackas and Dr. Barker are 
 
            preferred over the speculative remarks and hearsay 
 
            statements of Dr. Blessman.  Dr. Versackas was the treating 
 
            physician.  He saw claimant on numerous occasions.  He was 
 
            responsible for the ultimate success or failure of his 
 
            treatment.  Dr. Blessman, on the contrary, was the plant 
 
            physician, with a decided interest in the outcome of the 
 
            case who appeared to be building a construction of the case 
 
            to bring about a negotiated settlement.  Rather than an 
 
            independent evaluator he appears to be a partisan advocate.  
 
            Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 
 
            192 (Iowa 1985).
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 It is determined that the injury was the cause of 
 
            permanent disability.  This is established by the testimony 
 
            of Dr. Versackas and Dr. Barker.
 
            
 
                 It is determined that claimant has sustained a 10 
 
            percent permanent impairment and disability to her right 
 
            eye.  Dr. Barker testified that claimant's vision in the 
 
            right eye had been decreased since the injury and subsequent 
 
            bout with dendritic ulcer and iritis and that her best 
 
            corrected vision was 20/25 in the right eye.  He said that 
 
            her corneal opacity has decreased her vision approximately 5 
 
            to 10 percent so that she now has 90-95 percent of normal 
 
            vision in her right eye (ex. 1, p. 10).
 
            
 
                 Dr. Versackas opined on April 9, 1991, that claimant's 
 
            best corrected visual acuity in her right eye was 20/30 and 
 
            that her right eye still demonstrated the corneal scarring 
 
            that was a result of her previous corneal infection (ex. 1, 
 
            p. 1).  It should be noted that this infection occurred at 
 
            the site where the foreign body was removed.  Dr. Versackas 
 
            concluded, "Your visual acuity of 20/30 amounts to 90 
 
            percent efficiency of vision." (ex. 1, p. 1).  
 
            
 
                 Wherefore, it is determined that claimant has sustained 
 
            a 10 percent permanent loss of vision in her right eye based 
 
            upon the direct testimony of Dr. Versackas and Dr. Barker.  
 
            Dr. Versackas' remark that the scar may fade over time is 
 
            only a possibility, not a probability, and is speculative at 
 
            best.
 
            
 
                 IOWA CODE SECTION 85.34(p) - IOWA CODE SECTION 
 
                                   85.34(2)(q)
 
            
 
                 It is determined that claimant's loss is to be 
 
            compensated for under Iowa Code section 85.34(2)(p) which 
 
            states that the permanent partial disability compensation 
 
            shall be 140 weeks for the loss of an eye.  Therefore, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            claimant is entitled to 10 percent of 140 weeks which is 14 
 
            weeks of permanent partial disability benefits.
 
            
 
                 Claimant is not entitled to benefits under Iowa Code 
 
            section 85.34(2)(q) because that section, which allows 200 
 
            weeks of benefits, requires, "...the other eye having been 
 
            lost prior to the injury..."  It is difficult to state that 
 
            the left eye has been lost when the left eye vision is 
 
            correctable to 20/20 as stated by Dr. Versackas (ex. 1, p. 
 
            1).
 
            
 
                 Claimant contends that the code section does not 
 
            require a complete loss of the other eye.  It is not 
 
            necessary to determine that point in this decision for the 
 
            reason that claimant's vision is correctable to 20/20 in the 
 
            left eye and under any definition it is impossible to say 
 
            that the vision of the left eye has been lost, whereas, in 
 
            the right eye a definite permanent loss of vision was 
 
            established.
 
            
 
                                 medical benefits
 
            
 
                 It is determined that the injury was the cause of all 
 
            of the treatment for claimant's right eye and more 
 
            specifically, claimant is entitled to all of the treatment 
 
            of Dr. Versackas, and in particular, the remaining balance 
 
            of $186 (ex. 2, pp. 26-27).  Likewise, claimant is entitled 
 
            to $69.93 in mileage to see Dr. Versackas at the rate of 21 
 
            cents per mile for 330 miles as illustrated in exhibit 2, 
 
            page 28.
 
            
 
                                        
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant sustained the burden of proof by a 
 
            preponderance of the evidence that she sustained an injury 
 
            to her right eye on November 13, 1989, which arose out of 
 
            and in the course of employment with employer.  Iowa Code 
 
            section 85.3(1); 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).
 
            
 
                 That claimant sustained the burden of proof by a 
 
            preponderance of the evidence that the injury was the cause 
 
            of permanent disability.  Bodish v. Fischer, Inc., 257 Iowa 
 
            516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 
 
            Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant sustained the burden of proof by a 
 
            preponderance of the evidence that she is entitled to 14 
 
            weeks of permanent partial disability benefits for a 
 
            scheduled member injury to her right eye of 10 percent of 
 
            140 weeks.  Iowa Code section 85.34(2)(p).
 
            
 
                 That claimant has sustained the burden of proof by a 
 
            preponderance of the evidence that she is entitled to past 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            and future medical expenses by Dr. Versackas for this eye 
 
            injury and related herpetic keratitis and in particular, the 
 
            $186 owed to Dr. Versackas and $69.93 for medical mileage.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant fourteen (14) weeks pf 
 
            permanent partial disability benefits at the stipulated rate 
 
            of three hundred seventeen and 46/100 dollars ($317.46) in 
 
            the total amount of four thousand four hundred forty-four 
 
            and 44/100 dollars ($4,444.44) commencing on April 9, 1991, 
 
            as stipulated to by the parties.
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That defendants pay to claimant or the provider of 
 
            medical services the bill of Dr. Versackas in the amount of 
 
            one hundred eighty-six dollars ($186) and the medical 
 
            mileage in the amount of sixty-nine and 93/100 dollars 
 
            ($69.93).
 
            
 
                 That claimant is entitled to future medical treatment 
 
            for the corneal scar or the herpetic keratitis with the 
 
            physician or physicians authorized by defendants.
 
            
 
                 That the costs of this action, including the filing fee 
 
            in the amount of sixty-five dollars ($65) and the cost of a 
 
            report from Dr. Barker in the amount of ten dollars ($10), 
 
            are charged to defendants pursuant to rule 343 IAC 4.33 and 
 
            Iowa Code section 86.40.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Tom L. Drew
 
            Attorney at Law
 
            1200 35th St. STE 500
 
            West Des Moines, Iowa  50265
 
            
 
            Ms. Anne L. Clark
 
            Attorney at Law
 
            2700 Grand Ave, STE 111
 
            Des Moines, Iowa  50312
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          1108.50; 51401; 51402.20; 
 
                                          1402.20; 1402.30; 52206; 1803; 
 
                                          52501; 52700
 
                                          Filed May 21, 1992
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            LYNN JEFFRESS,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 944019
 
            FIRESTONE TIRE AND RUBBER,    :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANIES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1108.50 51401 51402.20 1402.30 52206
 
            Claimant was determined to have sustained an injury arising 
 
            out of her employment when she got a foreign body imbedded 
 
            near the cornea of her right eye at work while working near 
 
            an air hose.  It was further determined that the traumatic 
 
            injury triggered herpetic keratitis, even though claimant 
 
            had to be susceptible to it in order for it to occur.
 
            Treating ophthalmologist and an optometrist evaluator for 
 
            claimant established causal connection clearly and 
 
            unequivocally.
 
            Defendant employer's medical director attempted to fashion a 
 
            case for a negotiated settlement based on speculation and 
 
            hearsay information from other doctors (much of which was 
 
            disproved).  The medical director's speculation and hearsay 
 
            evidence was not acceptable to determine the ultimate fact 
 
            questions in dispute.  Furthermore, he appeared to be 
 
            serving in the roll of a partisan advocate rather than a 
 
            medical doctor with an independent, unbiased medical opinion 
 
            of his own.  It was determined that the foreign object in 
 
            the eye, the subsequent corneal scarring,  and the lighted 
 
            up herpetic keratitis were all caused by the traumatic 
 
            injury at work.  
 
            
 
            1803
 
            Treating ophthalmologist and evaluating optometrist both 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            found a 10 percent permanent impairment.  Claimant awarded 
 
            14 weeks of permanent partial disability based on a 10 
 
            percent impairment using 140 weeks pursuant to Iowa Code 
 
            section 85.34(2)(p).
 
            It was further determined that claimant was not entitled to 
 
            10 percent of 200 weeks based on Iowa Code section 
 
            85.34(2)(q) for the reason that claimant had not lost the 
 
            vision in the other eye prior to the injury.  Claimant did 
 
            have impaired vision in the other eye, but it was 
 
            correctable to 20/20.  The award for the injured right eye 
 
            was for loss that could not be corrected.
 
            
 
            52501 52700
 
            Claimant was awarded medical benefits.  Defendant employer's 
 
            medical director constructed a case based on his own 
 
            speculation and hearsay evidence from other doctors (much of 
 
            which was disproved) to force a compromise settlement by 
 
            claimant.  Claimant was awarded the unpaid medical expenses 
 
            of the treating ophthalmologist and her unpaid medical 
 
            mileage to see the ophthalmologist.  Defendants were also 
 
            ordered to provide future care for either the traumatic eye 
 
            injury, the corneal scar or the herpetic keratitis.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PATTY GUE,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 944022
 
            MCDONALD'S,                   :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER GROUP,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Claimant Patty Gue seeks benefits under the Iowa 
 
            Workers' Compensation Act upon her petition in arbitration 
 
            against defendant employer McDonald's and its insurance 
 
            carrier, Kemper Group.  Claimant asserts that a work injury 
 
            of June 30, 1990 left her with residual disability in the 
 
            low back.
 
            
 
                 This cause came on for hearing in Council Bluffs, Iowa 
 
            on February 1, 1993.  The record consists of joint exhibits 
 
            1-13 and the testimony of claimant, Thomas Gue and Kim 
 
            Eisenberg.
 
            
 
                                      issues
 
            
 
                 The parties have stipulated that claimant sustained 
 
            injury arising out of and in the course of her employment 
 
            with McDonald's on June 30, 1990, that the injury caused 
 
            temporary disability and that certain benefits were 
 
            voluntarily paid prior to hearing.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  The extent of healing period/temporary disability;
 
            
 
                 2.  Whether the injury caused permanent disability, and 
 
            if so, the extent thereof;
 
            
 
                 3.  The rate of compensation.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Patricia Gue, 41 years of age at hearing, is a 1970 
 
            high school graduate whose work history discloses a rather 
 
            peripheral attachment to the labor market.
 
            
 
                 While in high school, claimant worked a part time, 
 
            minimum wage job as a carhop and a part time, minimum wage 
 
            job as a child care worker for several months.  In 1970, she 
 
            held a full time job as a sewer for a woolen mill for two 
 
            months.  Thereafter, she quit to travel with her husband.
 
            
 
                 In 1974, she returned to Council Bluffs and worked 
 
            approximately seven months in a minimum wage job operating a 
 
            glue machine for an enterprise known as Blue Ribbon.  She 
 
            next worked approximately two months in a part time, minimum 
 
            wage job with a hamburger chain, then was off work five 
 
            years until working approximately one and one/half months 
 
            for Capitol Tape.  She next was off work for approximately 
 
            ten years, before taking work as a custodian in 1989 for 
 
            Bethany Lutheran Home.  After being discharged (she falsely 
 
            reported to a vocational rehabilitation counselor that she 
 
            had left employment due to family illness) she was off work 
 
            approximately six months before seeking and obtaining work 
 
            with defendant McDonald's, a fast food hamburger restaurant.
 
            
 
                 Claimant was hired as a part time line worker.  
 
            McDonald's has no full time employees, except for 
 
            management.  During her short tenure, claimant was not 
 
            placed in any special training program, but simply worked a 
 
            variety of different jobs in the same fashion as all other 
 
            part time line workers.  Nothing whatsoever was unusual 
 
            about her status.  On ten different working days between 
 
            June 18 and June 30, 1990, claimant worked a total of 53.1 
 
            hours (at minimum wage, $3.85 per hour).  On her two best 
 
            days, she worked over seven hours, but less than eight 
 
            hours.
 
            
 
                 Claimant takes the position that she was more or less 
 
            promised a full time position after her children returned to 
 
            school and she was "trained."  The evidence completely fails 
 
            to support this assertion.
 
            
 
                 Ms. Gue suffered her work injury when she slipped on 
 
            ice in a walk-in freezer and fell awkwardly.  Suffering from 
 
            pain in the right foot and back, she tried to work for a 
 
            while longer, then left.  She was seen later that day at the 
 
            Mercy Hospital Emergency Room, where she complained of pain 
 
            in the mid back, right lower leg, ankle and foot.  Minimal 
 
            swelling was seen at the right ankle and some muscle spasm 
 
            was present in the back.  Radiological studies by D. T. Van 
 
            de Water, M.D., were normal as to the right ankle and lumbar 
 
            spine, and showed degenerative changes at the first MP joint 
 
            with no acute abnormality evident and slight degenerative 
 
            change in the lower thoracic spine.  Again, no acute 
 
            abnormality was evident.  Discharge diagnosis was of 
 
            thoraco-lumbar strain; sprain of the right foot and ankle.  
 
            No permanent disability was anticipated by the treating 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            physician.
 
            
 
                 Claimant was next seen by Edward R. Farrage, M.D.  His 
 
            report of August 14, 1990 reflected a diagnosis of dorsal 
 
            and right ankle sprain which was not anticipated to result 
 
            in permanent disability.  
 
            
 
                 Dr. Ferrage referred claimant to an orthopedic 
 
            specialist, James R. Rochelle, M.D.  Dr. Rochelle treated 
 
            with physical therapy, keeping claimant off work and 
 
            encouraging her to exercise by walking.  His chart notes of 
 
            August 17 showed complaints of significant pain in the base 
 
            of the cervical spine with radiation into the right 
 
            shoulder.  Claimant's "high muscle tension is exacerbating 
 
            her pain symptoms."  By August 29, Dr. Rochelle diagnosed 
 
            lumbar, cervical and right shoulder strains, improved.
 
            
 
                 Claimant was next treated by Charles Taylon, M.D.  
 
            Although his chart notes are not in evidence, Dr. Taylon 
 
            apparently treated claimant into 1991.  On February 13, 
 
            1991, he concluded that Ms. Gue had reached maximum medical 
 
            improvement and assigned her a three percent permanent 
 
            partial "disability" to the body as a whole.  On March 6, 
 
            Dr. Taylon assigned medical restrictions of 25 pounds 
 
            lifting with no repetitive bending or twisting and limited 
 
            sitting and standing to two hours at a stretch with 
 
            associated rest periods.  Dr. Taylon's diagnosis as of 
 
            September 24, 1990 was of a mechanical musculoligamentous 
 
            injury to the spine.
 
            
 
                 Claimant twice attempted to return to work, working 
 
            5.62 hours on July 9 and 4.10 hours on July 18, 1990.  She 
 
            complains that she was unable to continue working and, 
 
            indeed, concedes that she has never looked for work since 
 
            due to residual complaints of back pain.  She complains that 
 
            she is unable to sit or stand for prolonged periods, that 
 
            she needs help doing grocery shopping, that she is unable to 
 
            walk more than 20-30 minutes and that her sleep patterns are 
 
            disturbed.  She disagrees with the 25 pound lifting 
 
            restriction imposed by Dr. Taylon, noting that she has 
 
            problems lifting her 14 pound dog.
 
            
 
                 Defendants offered vocational rehabilitation services 
 
            through several companies.  Jim Weiss of Rehabilitation 
 
            Management, Inc., furnished written job descriptions for 
 
            file clerk and general office clerk to Dr. Taylon, who 
 
            agreed she could do either job full time.  However, claimant 
 
            advised Weiss that she did not feel she could work, so 
 
            vocational rehabilitation efforts were discontinued.  
 
            Claimant says that she was never told that Dr. Taylon had 
 
            approved full time work at the file clerk or general office 
 
            clerk jobs described in the evidence.
 
            
 
                 Claimant was also seen for evaluation on July 27, 1992 
 
            by Joel T. Cotton, M.D., a neurologist.  Dr. Cotton found 
 
            claimant's neurological examination to be normal with no 
 
            evidence of residual physical injury to the thoracic spine 
 
            or to the right ankle.  In the thoracic spine, claimant was 
 
            found to have normal range of motion, no areas of tenderness 
 
            to palpation and no evidence of perivertebral spasm.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Claimant's spinal complaints were confined to the thoracic 
 
            spine region.  There was no evidence of complaint or injury 
 
            to the cervical spine or lumbar spine.  Dr. Cotton assigned 
 
            a two percent impairment rating to the body as a whole 
 
            strictly on the basis of persisting complaints of pain, 
 
            although finding no objective evidence of injury.  
 
            Similarly, Dr. Cotton was unable to find evidence of 
 
            residual physical injury to the right ankle.
 
            
 
                 Dr. Cotton found that claimant was capable of returning 
 
            to all usual and customary activity without restriction, as 
 
            there was no functional limitation applicable on the basis 
 
            of any residual physical injury.  Dr. Cotton found that Dr. 
 
            Taylon's restrictions are of March 1991 may have applicable 
 
            at that time, but would not be expected to be of a permanent 
 
            nature.  Dr. Cotton believed that as of June 30, 1991, 
 
            claimant should have been capable of returning to all usual 
 
            and customary activity without restriction.
 
            
 
                                conclusions of law
 
            
 
                 As noted above, the parties agree that claimant 
 
            sustained injury arising out of and in the course of 
 
            employment and that the injury caused temporary disability, 
 
            although the extent is disputed.  Temporary disability is 
 
            compensable as a healing period under Iowa Code section 
 
            85.34 in cases causing permanent partial disability.  It is 
 
            compensable as temporary total or temporary partial 
 
            disability under section 85.33 where no permanent disability 
 
            exists.
 
            
 
                 Because claimant's injury was to the body as a whole, 
 
            any permanency must be compensated industrially.
 
            
 
                 Industrial disability was defined in Diederich v. 
 
            Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as 
 
            follows: "It is therefore plain that the legislature 
 
            intended the term 'disability' to mean 'industrial 
 
            disability' or loss of earning capacity and not a mere 
 
            'functional disability' to be computed in the terms of 
 
            percentages of the total physical and mental ability of a 
 
            normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Although Ms. Gue complains of continued pain, pain 
 
            itself is not compensable absent a diminution of earning 
 
            capacity and, absent objective findings, is not equivalent 
 
            to impairment.  Waller v. Chamberlain Manufacturing, II Iowa 
 
            Industrial Commissioner Report 419 (1981).
 
            
 
                 Two physicians have rendered opinions as to functional 
 
            disability and medical restrictions.  Dr. Taylon, a treating 
 
            physician, imposed medical restrictions in 1991 based, 
 
            apparently, on his earlier diagnosis of mechanical 
 
            musculoligamentous injury.  Dr. Cotton, an evaluating 
 
            physician, rated impairment based strictly on subjective 
 
            complaints, but found no residual objective signs of injury 
 
            and recommended no activity restrictions whatsoever.
 
            
 
                 It is not necessarily the case that a treating 
 
            physician's opinion should be given greater weight than that 
 
            of a later physician who examines claimant in anticipation 
 
            of litigation.  Rockwell Graphic Systems, Inc., v. Prince, 
 
            366 N.W.2d 187 (Iowa 1985).  Rather, factors such as 
 
            education, compensation, the day of examination, and 
 
            experience go to the value of that opinion as a matter of 
 
            fact, not law.
 
            
 
                 In this case, Dr. Cotton's opinion should be given 
 
            greater weight.  Not only did he see claimant much more 
 
            recently than did Dr. Taylon, but his opinions are backed up 
 
            by a detailed and explanatory report.  Dr. Taylon's opinion 
 
            exists in a vacuum.  He does not explain whether any 
 
            objective signs of injury were found in early 1991 or what 
 
            factors went into his assignment of an impairment (or, in 
 
            his words, "disability") rating.
 
            
 
                 Dr. Cotton not only finds no residual objective signs 
 
            of impairment, but releases claimant to any activity which 
 
            she might previously have performed.  Although claimant is 
 
            not now working, it appears that she has little if any 
 
            motivation to work (even Dr. Taylon agreed that she could 
 
            perform file clerk and general office duties) and has shown 
 
            a lifetime attachment to the labor market that is tenuous at 
 
            best.  No diminution of earning capacity exists: ergo, no 
 
            award of industrial disability is justified.
 
            
 
                 Under Iowa Code section 85.33(1), temporary total 
 
            disability is payable until the employee has returned to 
 
            work or is medically capable of returning to substantially 
 
            similar employment, whichever first occurs.  Although Dr. 
 
            Taylon released claimant in early 1991, he did so with 
 
            restrictions.  Dr. Cotton's more persuasive opinion notes 
 
            that claimant should have been completely healed within one 
 
            year of the original injury.  Fifty-two weeks of temporary 
 
            total disability shall be awarded.
 
            
 
                 The parties also dispute the appropriate rate of 
 
            compensation.  Claimant takes the position that rate should 
 
            be calculated under Iowa Code section 85.36(10)(b), as an 
 
            apprentice or trainee at the time of injury.  Under that 
 
            subsection, status as an apprentice or trainee whose 
 
            earnings should be expected to increase during the period of 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            disability may be considered in computing average weekly 
 
            earnings.
 
            
 
                 Defendants, on the other hand, point out that claimant 
 
            was a part time worker and believe that compensation should 
 
            be calculated under Iowa Code section 85.36(10) on the basis 
 
            of 1/50th of total earnings from all employment during the 
 
            twelve calendar months immediately preceding the injury.
 
            
 
                 Neither contention is correct.  Claimant as a matter of 
 
            fact was simply not in an apprentice or trainee status at 
 
            the time of her injury.  She was a part time line employee 
 
            no different from many others.
 
            
 
                 On the other hand, it cannot be said (as required by 
 
            85.36(10)) that claimant earned either no wages or "less 
 
            than the usual weekly earnings of the regular full-time 
 
            adult laborer in the line of industry in which the employee 
 
            is injured in that locality."  Defendants cite as precedent 
 
            the recent decision of Lamb v. Betner, Inc., File Number 
 
            833231 (Appeal Decision November 30, 1992).  That case also 
 
            involved a part time employee injured at a McDonald's 
 
            restaurant.  However, the case must be distinguished.  The 
 
            Commissioner found in Lamb that the evidence showed there 
 
            were regular full time employees working for that employer 
 
            and other McDonald's stores in the Waterloo, Iowa area.  The 
 
            record in this case is completely different.  The store in 
 
            question and other McDonald's in the Council Bluffs area 
 
            hire no full time workers, except for management.  
 
            Therefore, 85.36(10) is inapplicable since the record does 
 
            not show that regular full time adults laborers in that line 
 
            of industry exist in this locality.
 
            
 
                 Since claimant was paid an hourly wage, her rate of 
 
            compensation should be calculated under section 85.36(6) and 
 
            (7), since claimant had been in defendants' employ less than 
 
            thirteen calendar weeks immediately preceding the injury.  
 
            Therefore, her weekly earnings must be computed by dividing 
 
            by thirteen the earnings earned in the last period of 
 
            thirteen weeks, considering the amount the employee would 
 
            have earned had she been employed for the full thirteen 
 
            calendar weeks immediately preceding the injury.
 
            
 
                 Claimant was injured on her thirteenth day of 
 
            employment, not divisible evenly by weeks.  Of those 
 
            thirteen days, she worked ten, as follows:  five days 
 
            worked, two days off, one day worked, one day off, four days 
 
            worked.  The record does not show whether claimant was 
 
            scheduled to work July 1.  In the absence of proof, it would 
 
            be speculative to consider how many hours claimant would 
 
            have worked on the fourteen day, if any.
 
            
 
                 During her two weeks of employment prior to the injury, 
 
            claimant worked 53.10 hours, or an average of 26.55 hours 
 
            per week.  At an hourly wage of $3.85, this is an average 
 
            weekly wage of $102.22.  This is held to be claimant's 
 
            average gross weekly wage for purposes of calculating rate.  
 
            The parties have stipulated to a marital status of married 
 
            and four exemptions.  According to the rate book published 
 
            by this office and in effect at the time of claimant's 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            injury, an individual so situated is entitled to a weekly 
 
            rate of $88.79. 
 
            
 
                 Defendants have paid a total of $732.60 in weekly 
 
            benefits.  
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant fifty-two (52) weeks 
 
            of temporary total disability benefits commencing July 1, 
 
            1990 at the rate of eighty-eight and 79/100 dollars ($88.79) 
 
            per week, totalling four thousand six hundred seventeen and 
 
            08/100 dollars ($4,617.08).
 
            
 
                 Defendants shall have credit for all benefits 
 
            voluntarily paid prior to hearing.
 
            
 
                 Defendants shall file claim activity reports as 
 
            required by the agency.
 
            
 
                 The costs of this action are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Sheldon M Gallner
 
            Attorney at Law
 
            803 Third Avenue
 
            PO Box 1588
 
            Council Bluffs Iowa 51502
 
            
 
            Mr Thomas M Plaza
 
            Attorney at Law
 
            701 Pierce Street Ste 200
 
            PO Box 3086
 
            Sioux City Iowa 51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      3000.2
 
                      Filed February 11, 1993
 
                      DAVID R. RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            PATTY GUE,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 944022
 
            MCDONALD'S,    :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            KEMPER GROUP,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            3000.2
 
            Claimant was a part time line worker for a McDonald's 
 
            restaurant at minimum wage.  She was held not to be in a 
 
            training or apprentice status under section 85.36(10)(b) as 
 
            asserted by claimant.  Distinguishing Lamb v. Betner, Inc., 
 
            File Number 833231 (Appeal Dec., November 30, 1992), rate 
 
            was not calculated under section 85.36(10) as 1/50th of the 
 
            previous year's total earnings, because the record failed to 
 
            show that "regular full time adult laborer(s)" existed in 
 
            that line of industry in claimant's locality.  The only full 
 
            time employees maintained by McDonald's were management 
 
            people.  Since claimant was injured in her second week of 
 
            employment, rate was calculated under 85.36(6) and (7) based 
 
            on what her earnings would likely have been if she had 
 
            worked thirteen weeks prior to injury.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            STEVE KELSO,                    :
 
                                            :        File No. 944038
 
                 Claimant,                  :
 
                                            :     A R B I T R A T I O N
 
            vs.                             :
 
                                            :        D E C I S I O N
 
            MAYTAG COMPANY,                 :
 
                                            :
 
                 Employer,                  :
 
                 Self-Insured,              :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Steve Kelso, against his self-insured employer, 
 
            Maytag, defendant.  The case was heard on October 12, 1993 
 
            at the office of the Industrial Commissioner.  The record 
 
            consists of joint medical exhibits 1-12 and non-medical 
 
            exhibits 1-3.  The record consists of the testimony of 
 
            claimant.  The record also consists of the testimony of 
 
            Jeffrey L. Boldt, physician's assistant, and Randy Claussen, 
 
            Manager of Labor Relations.  It is noted that a number of 
 
            the offered exhibits were of such poor quality that the 
 
            deputy industrial commissioner could not read them.
 
            
 
                                      ISSUES
 
            
 
                 The issues to be determined are: 1) Whether claimant is 
 
            entitled to any permanent partial disability benefits and, 
 
            if so, whether claimant's permanent injury is a scheduled 
 
            member injury or whether he has sustained an industrial 
 
            disability; and 2) whether claimant is entitled to an 
 
            independent medical examination pursuant to section 85.39 of 
 
            the Iowa Code.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all of the evidence, finds:
 
            
 
                 Claimant is 39 years old.  He is single and the father 
 
            of five children.  Claimant described his educational 
 
            background.  He completed the eleventh grade.  However, he 
 
            does not have a high school diploma.  Nor does he have a 
 
            GED.
 
            
 
                 Following his education, claimant held a variety of 
 
            jobs.  He worked as a machinist on at least two occasions.  
 
            He was required to operate lathes and drills.  He served as 
 
            an apprentice to a body shop where he was required to mix 
 
            paint.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                 Claimant worked as a mechanic where he repaired 
 
            construction equipment for two and one half years.  He also 
 
            worked on construction.  He was an independent contractor 
 
            for approximately five years.  Claimant testified he only 
 
            earned from $7,000.00 to $12,000.00 per year.
 
            
 
                 Next, claimant worked at an apartment complex where he 
 
            was the head of the maintenance department.  He earned 
 
            $1,000 per month plus he received an apartment which was 
 
            free of charge.  Claimant held this position until he 
 
            commenced his employment with this defendant.
 
            
 
                 In 1986 claimant was hired by defendant.  For the first 
 
            three months of his employment, claimant was employed as a 
 
            loader-unloader.  His duties consisted of flipping the 
 
            spinners of automatic washers.  The spinners weighed from 28 
 
            to 32 pounds.  He was next required to remove spinners from 
 
            the line, to push several buttons, to spray the spinners, to 
 
            flip them over and place them on another line.  Claimant 
 
            handled from 150 to 300 per hour.  He held that position for 
 
            approximately seven months.
 
            
 
                 Next, claimant worked on the inspection line.  He stood 
 
            on a platform and he inspected the spinners for chips, then 
 
            he would place the spinners onto another line.  Sometimes he 
 
            would be required to stack five spinners together.  He held 
 
            the position for five to six months.
 
            
 
                 Claimant was then transferred to the top cover line.  
 
            This was a two handed job.  He was required to remove parts 
 
            in the control panel and to inspect them.  Claimant 
 
            testified there was considerable rotation of his hands.  
 
            
 
                 Claimant was then assigned to a clean up job.  He used 
 
            a shovel four to six hours per day and he scooped wet 
 
            porcelain which weighed more than 15 pounds.  At times 
 
            claimant indicated the weight of the wet porcelain weighed 
 
            as much as 50 to 100 pounds.
 
            
 
                 In May of 1990, claimant complained to the company 
 
            medical staff that he was experiencing difficulties with his 
 
            upper extremities.  As of May 8, 1990, claimant reported to 
 
            the company nurse:
 
            
 
                    S:  This male presnets [sic] to the clinic with 
 
                 complaints of some cramping in his hands and 
 
                 numbness and tingling in his hands and forearms 
 
                 for approximately 1 1/2 months.  He relates last 
 
                 evening they work [sic] him up in the middle of 
 
                 the night with cramping in both his hands.  He 
 
                 relates he has done the same job for approximately 
 
                 two years which required some repetitive outward 
 
                 rotation of his rt. and left hand with small light 
 
                 parts.  Denies any injury or trauma to the area.
 
            
 
                    O:  patient [sic] has strong and equal 
 
                 bilateral hand grasps.  Range of motion of the 
 
                 wrists without discomfort.  Phalen' [sic] and 
 
                 Tinel's is negative.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
                    A:  Bilateral hand wrist strain.  Plan T:  
 
                 Patient was started on Vitamin B6 six tablets per 
 
                 day.  Instructed to use intermittent ice to the 
 
                 area.  Was fitted with some plastic stay wrist 
 
                 braces and instructed to return for re-examination 
 
                 on 5-15-90 or sooner if problems worsen.
 
            
 
            (Exhibit 1, pages 8 & 9)
 
            
 
                 In July of 1990, Dr. Carlstrom performed a surgical 
 
            release of a left ulnar neuropathy.  The neurologic exams 
 
            revealed that claimant had mild weakness of the left ulnar 
 
            distribution (Ex. 4, p. 69).  
 
            
 
                 Claimant did not improve over time.  Consequently, Dr. 
 
            Carlstrom performed a second surgery on the left arm in 
 
            November of 1990.  The physician re-explored the left ulnar 
 
            nerve because of persistent complaints of pain (Ex. 2, p. 
 
            49).  Claimant was restricted from work for approximately 14 
 
            months.  He underwent physical therapy at the Iowa Methodist 
 
            Medical Center.  He participated in the Medlink work 
 
            hardening program which was available at Methodist Hospital.  
 
            The medical staff assisted claimant in a work re-entry 
 
            program.  Claimant was also prescribed a tens unit.  The 
 
            staff at the work re-entry program determined claimant had 
 
            received maximum benefit from the program.
 
            
 
                 On December 19, 1990, Dr. Carlstrom opined the 
 
            following in his report of the same date:
 
            
 
                    I saw Steven Kelso today.  He is still having 
 
                 the same symptoms in his left arm that he has been 
 
                 having, though perhaps they might be a little less 
 
                 bothersome.  He is also having some discomfort in 
 
                 his right arm.
 
            
 
                    The exam remains mildly remarkable with 
 
                 discomfort in the flexor muscles of the forearm 
 
                 and tenderness over the elbow.  The neurologic 
 
                 function is normal, however.
 
            
 
                    I think this patient has reached maximum 
 
                 benefits of healing.  I think he probably has 
 
                 sustained an impairment of about 15% of the left 
 
                 arm and 5% of the right arm from a repetitive 
 
                 motion myofascial injury.  I don't think any 
 
                 further surgical treatment is warranted, nor do I 
 
                 see any point in any further evaluation.
 
            
 
            (Ex. 9, p. 135)
 
            
 
                 Robert A. Hayne, M.D., Dr. Carlstrom's partner, 
 
            computed Dr. Carlstrom's rating as an impairment rating of 
 
            12 percent to the body as a whole (Ex. 9-138).
 
            
 
                 Craig DuBois, M.D., of the Iowa Pain Management Center, 
 
            examined and evaluated claimant.  Dr. DuBois diagnosed 
 
            claimant as having:  "Neuritis persistent in the ulnar nerve 
 
            despite transposition in release" (Ex. 3, p. 56).  Later, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Dr. Dubois opined that claimant's condition was:
 
            
 
                    1.  Persistent left arm pain at the medial 
 
                 aspect of the elbow with suspected inflamed ulnar 
 
                 nerve persisting.  It does appear that this is 
 
                 exacerbated with activity and has recently 
 
                 improved with decrease in his use of the elbow at 
 
                 work.
 
            
 
                    The long term problem here is that the patient 
 
                 does not want to have injections into the area 
 
                 which is one of option [sic] to consider yet and 
 
                 also he just does not feel that the area is 
 
                 appropriately healed, diagnosed and treated.  I 
 
                 genuinely believe this patient does have some 
 
                 persistent ulnar irritation exacerbated by use of 
 
                 the flexor bundles in the elbow forearm junction.
 
            
 
            (Ex. 3, pp. 61-62)
 
            
 
                 In September of 1991, claimant was allowed to return to 
 
            work with certain restrictions (Ex. 1, p. 21).  The 
 
            restrictions included maximum lifting of 15 pounds and 
 
            claimant was to avoid the repetitive use of his arms (Ex. 1, 
 
            p. 21).  Later the restrictions were modified to no 
 
            repetitive movements after 30 minutes (Ex. 1, p. 24).
 
            
 
                 Claimant returned to work.  However, he indicated to 
 
            the medical personnel at the job site that he was 
 
            experiencing severe cramping in his hands and forearms.  
 
            Several conservative methods for treatment were prescribed.  
 
            He received several cortisone injections in his left elbow 
 
            (Ex. 1, p. 26).  The injections were of no assistance to 
 
            him.  
 
            
 
                 Because claimant's condition did not improve, EMG 
 
            studies were conducted in June of 1992 (Ex. 7, p. 100).  The 
 
            tests revealed the following:
 
            
 
                    SUMMARY:  The nerve conduction studies are 
 
                 normal.  The needle examination reveals high 
 
                 amplitude, long duration motor unit potentials and 
 
                 fasciculations in the distal ulnar innervated 
 
                 muscles bilaterally.
 
            
 
                    INTERPRETATION:  The EMG is consistent with 
 
                 bilateral non-localized ulnar neuropathies.  
 
            
 
            (Ex. 7, p. 100)
 
            
 
                 While he was participating in the programs at the Iowa 
 
            Methodist Medical Center, claimant was seen by the director 
 
            of Occupational Medicine.  Michael J. Makowsky, M.D., 
 
            examined and treated claimant.  He also referred claimant to 
 
            the Mayo Clinic for a second opinion.  Dr. Makowsky opined 
 
            the following in his report of September 9, 1993:
 
            
 
                    You requested my comments about a partial 
 
                 permanent impairment.  Dr. Carlstrom previously 
 
                 assigned him a permanent impairment of 15% of the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 left arm.  This was secondary to the residual from 
 
                 the ulnar nerve surgery at the elbow.  I feel that 
 
                 this is an appropriate impairment of the left 
 
                 upper extremity as it relates to the ulnar nerve 
 
                 surgery.  Mr. Kelso has had complete resolution of 
 
                 his symptoms caused by the compression of the 
 
                 medial nerve at the elbow and forearm.  I do not 
 
                 think he has any permanent impairment as a result 
 
                 of the pronator teres syndrome.
 
            
 
                    He has a right ulnar neuropathy documented by 
 
                 EMG nerve conduction study, which translates to a 
 
                 3-5% permanent partial impairment to the right 
 
                 upper extremity.
 
            
 
                    The patient is currently complaining of chronic 
 
                 pain.  I think his chronic pain is secondary to 
 
                 the surgery over the ulnar nerve.  I think his 
 
                 dysfunction and need for permanent restrictions is 
 
                 related to his left ulnar nerve surgery and not 
 
                 related to the pronator teres and median nerve 
 
                 surgery.  The functional impairment is that of the 
 
                 elbow and distal to the elbow.  I think he may 
 
                 have a chronic pain syndrome which results in 
 
                 disability of the arm which does not result in 
 
                 impairment.  His current restrictions are due to 
 
                 his problems in the elbow and not as it relates to 
 
                 the surgery performed by Dr. Linscheid.
 
            
 
                    In Dr. Smith's independent medical evaluation, 
 
                 there were comments to the effect on page 2 of his 
 
                 office notes, paragraph three that patient really 
 
                 had no real improvement following surgery.  I 
 
                 would agree that the patient had no improvement of 
 
                 his elbow symptoms, but he did have improvement of 
 
                 his symptoms that were in his left forearm.  I did 
 
                 not think the patient's real problem or functional 
 
                 impairment of his left elbow has changed very much 
 
                 since Dr. Carlstrom initially assigned the 15% 
 
                 impairment of the left upper extremity.  His 
 
                 chronic pain syndrome is causing disability, but 
 
                 not further impairment.  He does have some 
 
                 impairment of the left elbow caused by the ulnar 
 
                 nerve surgery.  This has resulted in some weakness 
 
                 of his left hand.
 
            
 
                    All of his injuries are limited to his left or 
 
                 right upper extremity and do not extend into his 
 
                 trunk.  All of his surgeries to the left upper 
 
                 extremity sites are due to the upper extremity 
 
                 impairment and not any impairment to his 
 
                 shoulders, trunk, or neck.
 
            
 
            (Ex. 2, pp. 49 & 50)
 
            
 
                 R. L. Linscheld, M.D., of the Mayo Clinic evaluated 
 
            claimant in 1992 and in 1993.  After several examinations, 
 
            Dr. Linscheld opined that a third surgical procedure was the 
 
            best course of action for claimant's recovery.  The surgeon 
 
            opined in his report of February 4, 1993:
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                    Mr. Kelso returned on January 25, 1993, for 
 
                 consideration of an ulnar vein wrapping of his 
 
                 previously transposed ulnar nerve, but during the 
 
                 course of reviewing his pain pattern it became 
 
                 obvious there were some elements that appeared to 
 
                 be unrelated to his ulnar nerve.  He volunteered 
 
                 he had had to drive his car with his forearms 
 
                 supinated, and proceeding with further questioning 
 
                 it seemed most of his discomfort occurred with 
 
                 pronosupination activities.  His provocative 
 
                 pronator signs appeared to be strongly positive 
 
                 suggesting that his pain pattern might have been 
 
                 due to a pronator syndrome.
 
            
 
                    After discussing this with you on the phone, we 
 
                 did proceed to explore the antecubital space the 
 
                 following day.  His pronator teres had a proximal 
 
                 take-off well onto the medial epicondyle flare.  
 
                 The lacertus fibrosus appeared to be somewhat 
 
                 hypertrophied and indented the pronator 
 
                 musculature on passive pronation.  He had a rather 
 
                 large deep head of the pronator teres with a 
 
                 tendon of origin from either side that appeared to 
 
                 compress the nerve just proximal to the level of 
 
                 the take-off of the anterior interosseous.  We 
 
                 released all these structures and allowed him to 
 
                 return home the same day.  He planned on having 
 
                 his dressings changed at the plant the next 
 
                 morning.  When I talked to him on the phone the 
 
                 following day he said the pain in his forearm and 
 
                 the numb feeling in his hand was improved.  I am 
 
                 in hopes this indeed will provide him with relief 
 
                 and avoid any further operations on his ulnar 
 
                 nerve.
 
            
 
                    If this rehabilitation proceeds as anticipated, 
 
                 I think he could return to work with his left arm 
 
                 by March 2, 1993, anticipating a light work 
 
                 approach until his arm feels more comfortable at 
 
                 two to three weeks.  If he appears to have a bit 
 
                 earlier response, consideration of releasing the 
 
                 right during his convalescence on the left might 
 
                 be entertained.
 
            
 
                    Thanks again for the opportunity to see such an 
 
                 interesting problem.  I hope that we have 
 
                 substantially improved his problem.
 
            
 
            (Ex. 7, p. 105)
 
            
 
                 Claimant then sought an additional opinion from a 
 
            physician relative to his condition.  Kevin F. Smith, M.D., 
 
            of the Workmed Midwest Clinic examined and evaluated 
 
            claimant for purposes of rendering a report.  The report was 
 
            given in anticipation of litigation.  Dr. Smith authored a 
 
            report dated July 23, 1993.  In his report the evaluating 
 
            physician opined:
 
            
 
                 LEFT UPPER EXTREMITY:
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                    Shoulder:  On the left side showed no signs of 
 
                 scarring, discoloration or abrasion.  Upon 
 
                 palpation of soft tissue the patient had no 
 
                 tenderness.  Bony landmarks were identified.  No 
 
                 palpable nodes on axilla.  The patient had normal 
 
                 smooth unguarded range of motion on abduction, 
 
                 adduction, flexion, extension, internal and 
 
                 external rotation.  Neurologic examination:  the 
 
                 patient had good range of motion with resisted 
 
                 good muscle tone.  Also had negative drop arm 
 
                 test.
 
            
 
                    Elbow:  The patient had normal carrying angle 
 
                 of 5 degrees with positive swelling and multiple 
 
                 scar sites along the medial epicondyle and midline 
 
                 both superior and inferior to the elbow joint.  
 
                 Soft tissue palpation demonstrated exquisite pain 
 
                 along the medial epicondyle and medial aspect of 
 
                 the forearm on light touch.  There was generalized 
 
                 tenderness in and around the joint itself.  Range 
 
                 of motion revealed flexion to 130 degrees, 
 
                 extension is 0 degrees, supination to 50 degrees, 
 
                 pronation to 70 degrees.  On neurologic testing 
 
                 the patient had positive biceps reflex, positive 
 
                 brachioradial reflex, positive triceps reflex.  
 
                 Negative Finkelstein's test.  Positive Tinel's 
 
                 over the path of the ulnar nerve.  Also, positive 
 
                 palpable brachial pulse.
 
            
 
                    Wrist and hand:  The patient had normal 
 
                 unguarded smooth movement of the wrist and hand 
 
                 with a normal attitude of the hand.  Soft tissue 
 
                 demonstrated no tenderness or no masses.  Bony 
 
                 landmarks were identified.  The patient has 
 
                 positive ulnar radial pulses.  On range of motion 
 
                 the patient had flexion to 55 degrees, extension 
 
                 to 55 degrees, ulnar deviation 20 degrees, radial 
 
                 deviation to 20 degrees.  Mild positive Tinel's 
 
                 over the Guyon canal.  Negative Tinel's and 
 
                 negative Phalen's over the carpal canal.  Negative 
 
                 Finkelstein's test and good muscle tone on 
 
                 resistance.
 
            
 
                    On range of motion in the joints of the hand 
 
                 the patient had normal range of motion at the MCP, 
 
                 PIP and DIP joints.
 
            
 
                 RIGHT UPPER EXTREMITY:
 
            
 
                    Shoulder:  Examination on the left side showed 
 
                 no signs of scarring, discoloration, or abrasion.  
 
                 On palpation of soft tissue the patient had no 
 
                 tenderness.
 
            
 
                    Bony landmarks were identified.  No palpable 
 
                 nodes were noted in the axilla.  The patient had 
 
                 normal range of motion on abduction, adduction, 
 
                 flexion, extension, internal rotation and external 
 
                 rotation.  Neurologic examination the patient had 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 good range of motion with resistance and good 
 
                 muscle tone.  Also, negative drop arm test.
 
            
 
                    ELBOW:  The patient had normal appearing 5 
 
                 degrees with no swelling, scarring, discoloration 
 
                 or abrasion over the site.  Soft tissue palpation 
 
                 demonstrates some tenderness over the medial 
 
                 epicondyle.  Range of motion revealed flexion to 
 
                 140 degrees, extension to 0 degrees, supination 80 
 
                 degrees, pronation to 80 degrees.  Neurologic 
 
                 testing demonstrated positive bicipital reflex, 
 
                 positive brachioradial reflex, positive triceps 
 
                 reflex.  Negative tennis elbow and positive 
 
                 Tinel's over the ulnar groove.  The patient had 
 
                 positive brachial pulse.
 
            
 
                    Wrist and hand:  The patient had normal 
 
                 unguarded smooth movement of the wrist and hand 
 
                 with normal attitude of the hand.  Soft tissue 
 
                 palpation demonstrates no tenderness or masses.  
 
                 Bony landmarks were identified.  The patient had 
 
                 positive ulnar and radial pulses.  On range of 
 
                 motion the patient had normal range of motion on 
 
                 flexion, extension, ulnar deviation, and radial 
 
                 deviation.  Negative Tinel's and negative Phalen's 
 
                 of the carpal canal.  Negative Finkelstein's test.  
 
                 Good muscle tone on wrist.
 
            
 
                    On range of motion of the hand, the patient had 
 
                 normal range of motion at the MCP, PIP and DIP 
 
                 joints.  On grip strength on the right before 
 
                 10/8, and left before 10/66 and after 10/66.
 
            
 
                    ....
 
            
 
                 IMPRESSION:
 
            
 
                    1.  Overuse Syndrome, bilateral upper extremity 
 
                 with associated ulnar nerve neuropathies, work 
 
                 related, chronic.
 
            
 
                    2.  Left ulnar neuropathy with subsequent 
 
                 surgery times three with residual ulnar nerve 
 
                 neuritis with associated reports of numbness and 
 
                 tingling, loss of strength and pain, work related, 
 
                 chronic.
 
            
 
                    3.  Right ulnar neuropathy, work related, 
 
                 chronic.
 
            
 
                    4.  Myofascial Pain Syndrome, associated with 
 
                 the above work related conditions, involving 
 
                 cervical area, shoulder girdles, and upper 
 
                 extremities bilaterally, work related, chronic.
 
            
 
                 TREATMENT RECOMMENDATIONS:
 
            
 
                    1.  The patient can return to work with his 
 
                 previous permanent light duty restrictions set on 
 
                 May 21, 1993, by the Maytag Medical Department, 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 which are permanent restrictions of avoid 
 
                 repetitive flexion and extension of the left 
 
                 elbow.  Maximum frequency of lifting 5 to 10 
 
                 pounds.  Occasional lift of 15 pounds.
 
            
 
                    2.  Use of water therapy exercises three times 
 
                 a week for the next three to four months to 
 
                 stabilize reports of pain and to improve function.
 
            
 
                    3.  Follow up with the Maytag Medical 
 
                 Department for ongoing care.
 
            
 
                    ....
 
            
 
                    Based on review of the medical records and 
 
                 clinic evaluation today the patient has an Overuse 
 
                 Syndrome involving the upper extremities with 
 
                 associated bilateral ulnar neuropathy, left side 
 
                 worse then right.  He also has associated 
 
                 Myofascial Pain Syndrome involving the upper 
 
                 extremity, shoulder girdle, and the cervical area.  
 
                 His conditions are associated with pain, numbness 
 
                 and tingling in the upper extremities, left worse 
 
                 then the right.  It is also associated with 
 
                 decreased grip strength and cramping into the 
 
                 hands.  His condition is work related and now 
 
                 permanent and stationary.
 
            
 
                    Functional impairment rating based on the 
 
                 following factors:
 
            
 
                      1.  Loss of range of motion.
 
            
 
                      2.  Loss of function due to pain.
 
            
 
                      3.  Loss of function due to loss of strength.
 
            
 
                    The patient has a functional impairment rating 
 
                 of 18% of the left upper extremity and 5% of the 
 
                 right upper extremity.  Using the combined values 
 
                 table this equals a functional impairment rating 
 
                 of 14% of the body as a whole.
 
            
 
            (Ex. 11, pp. 154-155, 159-161)
 
            
 
                 Pursuant to claimant's request, Dr. Linscheid authored 
 
            another report dated August 9, 1993.  In his report, the 
 
            physician opined:
 
            
 
                    On examination the scar over the anteromedial 
 
                 aspect of the antecubital space appeared to be 
 
                 well healed.  There was one tender area in the 
 
                 scar at the level of the second apex from the 
 
                 wrist crease and produced a sharp pain but did not 
 
                 seem to produce any significant parasthesias 
 
                 either locally or into the fingers.  This could be 
 
                 a neuroma in the small branch of one of the 
 
                 sensory nerves, but didn't seem to be connected 
 
                 with the median nerve in general.  The scar was 
 
                 otherwise well healed.  The muscle circumference 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 of his forearms appeared to be about equal 
 
                 bilaterally.  Individual muscle testing appeared 
 
                 to be satisfactory though there was some giving 
 
                 way particularly on the little and ring finger 
 
                 profundus.  The area of greatest tenderness at the 
 
                 present time was along the course of the ulnar 
 
                 nerve from about 3 cm above the medial epicondyle 
 
                 to where it disappeared into the flexor carpi 
 
                 ulnaris.  Stretching the little and ring fingers 
 
                 into extension after a few minutes produced 
 
                 discomfort in the forearm which made him want to 
 
                 withdraw the arm.  He found the position of 
 
                 comfort greatest when he flexed the wrist and/or 
 
                 fingers fully, suggesting that removing tension 
 
                 from the muscles along the course of the ulnar 
 
                 side of the forearm gave him some relief.  
 
                 Provocative pronator signs were only mildly 
 
                 irritable at this time.  phalen's [sic] sign, 
 
                 however, was positive and did produce numbness 
 
                 into the median distribution.  It also tended to 
 
                 reproduce some of the aching discomfort he had in 
 
                 his forearm.  He rarely had discomfort into the 
 
                 dorsal aspect of the forearm.
 
            
 
                    I would have to assume at this time that most 
 
                 of his discomfort is associated with irritation of 
 
                 the ulnar nerve, probably adhesions, that are 
 
                 being stretched with the nerve during repetitive 
 
                 elbow motion.  Pressure over the ulnar nerve just 
 
                 above the medial epicondyle did result in numbness 
 
                 going into the little and ring fingers.  The 
 
                 intrinsic muscles themselves did not appear to be 
 
                 wasted and only mildly weak.  His grip strength 
 
                 averaged 12 kg on the right and 4 kg on the left 
 
                 on several trials and with rapid switching from 
 
                 hand to hand.  On testing the profundus as he 
 
                 gripped there was usually one or two fingers in 
 
                 which the produndus [sic] tendon did not appear to 
 
                 be under as much tension as the other fingers.  I 
 
                 am not sure of the mechanism that grades this.
 
            
 
                    It is somewhat difficult to know why the degree 
 
                 of subjective discomfort is so great or why it has 
 
                 been so unresponsive to all the treatments to 
 
                 date.  Nevertheless, I would think he does still 
 
                 have a significant ulnar neuropathy or neuritis 
 
                 probably associated with epineural scarring and 
 
                 that he has some on the other side as well.  Both 
 
                 of these would appear to be partially confirmed by 
 
                 the electromyographic findings of December 1992.  
 
                 He also may have a carpal tunnel on the left 
 
                 although our electromyographic studies of December 
 
                 1992 and clinical tests at that time did not 
 
                 suggest this was a factor.  If one were to further 
 
                 pursue the problem, I would think a diagnostic 
 
                 injection of local anesthetic and Cortisone into 
 
                 the carpal canal would help to determine whether 
 
                 or not there is significant carpal tunnel factor 
 
                 associated on the left.  One could also consider 
 
                 returning to a revision of the anterior 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 transposition of his ulnar nerve and again 
 
                 considering the vein wrap and/or submuscular 
 
                 transposition.  The nerve, however, may be 
 
                 sensitive enough that further treatment could be 
 
                 of limited value.  On the right side I think he 
 
                 has a moderate ulnar neuritis associated with a 
 
                 cubital tunnel problem, and if anything were to be 
 
                 done about this, at the present time I would only 
 
                 [sic] willing to do a posterior fasciotomy of the 
 
                 Osborn type rather than a submuscular or anterior 
 
                 transfer because of his poor response to similar 
 
                 treatment on the left.
 
            
 
                    I think there is genuine weakness of the hands, 
 
                 more so on the left than on the right, and ulnar 
 
                 neuritis that does produce cramps and stretching 
 
                 of the ulnar nerve does increase the discomfort in 
 
                 the forearms.  He probably has a modest carpal 
 
                 tunnel on the left as well.
 
            
 
                    On the basis of the above, I would assign a 
 
                 permanent partial impairment to the left arm as 30 
 
                 percent and the right arm as 10 percent.
 
            
 
            (Ex. 7, pp. 112-114)
 
            
 
                 Claimant eventually returned to work at the plant site.  
 
            At the time of the hearing, claimant was working full time, 
 
            as well as working overtime when requested.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The burden of proof is on the party asserting the 
 
            affirmative of an issue in an administrative proceeding; "on 
 
            the party who would suffer loss if the issue were not 
 
            established."  Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa 
 
            1973); Norland v. Ides, 412 N.W.2d 904 (Iowa 1987).
 
            
 
                 A treating physician's testimony is not entitled to 
 
            greater weight as a matter of law than that of a physician 
 
            who later examines claimant in anticipation of litigation.  
 
            Weight to be given testimony of a physician is a fact issue 
 
            to be decided by the industrial commissioner in light of the 
 
            record the parties develop.  In this regard, both parties 
 
            may develop facts as to the physician's employment in 
 
            connection with litigation; the physician's examination at a 
 
            late date and not when the injuries were fresh; his 
 
            arrangement as to compensation; the nature and extent of the 
 
            physician's examination; the physician's education; 
 
            experience; training; practice; and all other factors which 
 
            bear upon the weight and value of the physician's testimony.  
 
            The parties may bring all this information to the attention 
 
            of the factfinder as either supporting or weakening the 
 
            physician's testimony and opinion.  All factors go to the 
 
            value of the physician's testimony as a matter of fact not 
 
            as a matter of law.  Rockwell Graphic Systems, Inc. v. 
 
            Prince, 366 N.W.2d 176, 192 (Iowa 1985).
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory.  The statute conferring 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            this right can also fix the amount of compensation payable 
 
            for different specific injuries.  The employee is not 
 
            entitled to compensation except as the statute provides.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Iowa Code section 
 
            85.34(2).  Permanent partial disabilities are classified as 
 
            either scheduled or unscheduled.  A specific scheduled 
 
            disability is evaluated by the functional method; the 
 
            industrial method is used to evaluate an unscheduled 
 
            disability.  Simbro v. Delong's Sportswear, 332 N.W.2d 886 
 
            (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 
 
            (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 
 
            N.W.2d 95 (1960).
 
            
 
                 An injury to a scheduled member may, because of 
 
            aftereffects or compensatory change, result in permanent 
 
            impairment of the body as a whole.  Such impairment may, in 
 
            turn, be the basis for a rating of industrial disability.  
 
            It is the anatomical situs of the permanent injury or 
 
            impairment which determines whether the schedules in Iowa 
 
            Code section 85.34(2)"a"-"t" are applied.  Lauhoff Grain v. 
 
            McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. 
 
            Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 When disability is found in the shoulder, a body as a 
 
            whole situation may exist.  Alm v. Morris Barick Cattle Co., 
 
            240 Iowa 1174, 38 N.W.2d 161 (1949).  In Nazarenus v. Oscar 
 
            Mayer & Co., II Iowa Industrial Commissioner Report 281 
 
            (App. 1982), a torn rotator cuff was found to cause 
 
            disability to the body as a whole.
 
            
 
                 The mere fact that a rating pertains to a scheduled 
 
            member does not mean the disability is restricted to a 
 
            schedule.  Pullen v. Brown & Lembrecht Earthmoving, 
 
            Incorporated, II Iowa Industrial Commissioner Reports 308 
 
            (Appeal Decision 1982).
 
            
 
                 Workers' compensation benefits for permanent partial 
 
            disability of two members caused by a single accident is a 
 
            scheduled benefit under Iowa Code section 85.34(2)(s) and 
 
            the degree of impairment caused by a partial loss must be 
 
            computed on the basis of functional, rather than industrial 
 
            disability.  Simbro v. DeLong's Sportswear, 332 N.W.2d 886 
 
            (1983).
 
            
 
                 It is this deputy industrial commissioner's 
 
            determination that claimant has sustained a bilateral injury 
 
            to both upper extremities.  Claimant has not proven by a 
 
            preponderance of the evidence that his injuries extend 
 
            beyond the upper extremities and into the body as a whole.  
 
            No medical experts provided supporting documentation that 
 
            claimant's permanent condition affected his body as a whole.  
 
            All of the medical evidence supports a conclusion that 
 
            claimant's permanent condition involved the upper 
 
            extremities.  The medical providers opined the loss was the 
 
            result of one accident.
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 Since claimant has a bilateral injury to both upper 
 
            extremities, his injury is to be calculated as provided in 
 
            section 85.34(2)(s).
 
            
 
                 The next issue to address is the nature and extent of 
 
            claimant's bilateral injury which involves his upper 
 
            extremities.  Greater weight is given to the opinion of Dr. 
 
            Linscheid than is accorded to the opinions of the other 
 
            physicians.  Dr. Linscheid is the physician who performed 
 
            the most recent surgery on claimant's left upper extremity.  
 
            The surgeon is associated with the Mayo Clinic which is a 
 
            recognized medical facility.  The Mayo Clinic is world 
 
            renowned as a leader in medical care.  Dr. Linscheid is a 
 
            trail blazer in terms of new technical procedures.  He is 
 
            only one of a very few surgeons who is performing the 
 
            umbilical vein wrap of the ulnar nerve.  He is also the 
 
            physician who discovered that claimant had a left pronator 
 
            teres syndrome.  Additionally, Dr. Lischeid visited with 
 
            claimant on several occasions.  The surgeon had adequate 
 
            opportunities to examine claimant.  Dr. Linscheid also 
 
            reviewed claimant's x-rays and EMG's.
 
            
 
                 Therefore, in light of the above, as well as in light 
 
            of the personal observation of claimant and the other 
 
            witnesses, it is this deputy's determination that claimant 
 
            has a 30 percent functional impairment to the left upper 
 
            extremity and he has a 5 percent functional impairment to 
 
            the right upper extremity.
 
            
 
                 The injury is to be calculated as provided in section 
 
            85.34(2)(s).  The method for calculating is as follows:
 
            
 
                 Using the Third Edition of the AMA Guides to the 
 
            Evaluation of Permanent impairment, 30 percent of the left 
 
            upper extremity is converted to 18 percent of the whole 
 
            person and 5 percent of the right upper extremity is 
 
            converted to 3 percent of the whole person.  Then when 
 
            evaluating these two values on the combined values chart on 
 
            page 247 of the Third Edition, a combined value of 20 
 
            percent of the body as a whole is produced.
 
            
 
                 Iowa Code section 85.34(2)(s) governs the calculation 
 
            of benefits for an injury to both upper extremities caused 
 
            by a single accident.  The method for calculating the 
 
            claimant's benefits is as follows:  (20 percent x 500 weeks 
 
            = 100 weeks).  Claimant is entitled to 100 weeks of 
 
            permanent partial disability benefits commencing on the 
 
            stipulated date of May 21, 1991 and at the stipulated rate 
 
            of $341.14 per week.
 
            
 
                 The next issue to address is the issue dealing with an 
 
            independent medical examination.  Claimant is requesting 
 
            payment for the costs of an independent medical examination 
 
            pursuant to section 85.39 of the Iowa Code.
 
            
 
                 On July 22, 1993, claimant was examined by Kevin Smith, 
 
            M.D., for the purposes of obtaining an independent medical 
 
            examination.  The evaluating physician examined claimant and 
 
            then the medical practitioner authored an 11 page report 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            dated July 23, 1993 (Ex. 11).
 
            
 
                 Iowa Code section 85.39 provides in relevant part:
 
            
 
                    If an evaluation of permanent disability has 
 
                 been made by a physician retained by the employer 
 
                 and the employee believes this evaluation to be 
 
                 too low, the employee shall, upon application to 
 
                 the commissioner and upon delivery of a copy of 
 
                 the application to the employer and its insurance 
 
                 carrier, be reimbursed by the employer the 
 
                 reasonable fee for a subsequent examination by a 
 
                 physician of the employee's own choice, and 
 
                 reasonably necessary transportation expenses 
 
                 incurred for the examination.  The physician 
 
                 chosen by the employee has the right to confer 
 
                 with and obtain from the employer-retained 
 
                 physician sufficient history of the injury to make 
 
                 a proper examination.
 
            
 
                    Section 85.39 permits an employee to be reimbursed 
 
            for a subsequent examination by a physician of the 
 
            employee's choice where an employer-retained physician has 
 
            previously evaluated "permanent disability" and the employee 
 
            believes that the initial evaluation is too low.  The 
 
            section also permits reimbursement for reasonably necessary 
 
            transportation expenses incurred and for any wage loss 
 
            occasioned by the employee's attending the subsequent 
 
            examination.
 
            
 
                 Defendants are only responsible for reasonable fees 
 
            associated with claimant's independent medical examination.  
 
            Claimant has the burden of proof with respect to the issue 
 
            of the reasonableness of a fee.  See Schintgen v. Economy 
 
            Fire and Casualty Co., File No. 855298 (Appeal Decision, 
 
            April 26, 1991).
 
            
 
                 It is not necessary for claimant to obtain prior 
 
            approval of defendants or that claimant file an application 
 
            with the industrial commissioner's office prior to seeing a 
 
            medical examiner.  Vaughn v. Iowa Power, Inc., File No. 
 
            925283 (Arbitration Decision, August 5, 1992).  Nor is it 
 
            necessary for claimant to apply for reimbursement for an 
 
            independent medical examination by a physician who is 
 
            retained by claimant prior to the examination or prior to 
 
            the hearing.  Pirozek v. Swift Independent Packing and 
 
            Second Injury Fund of Iowa, File Nos. 753643, 753642, 724893 
 
            (Appeal Decision 1987).
 
            
 
                 In the case of Wright v. Bridgestone/Firestone, File 
 
            No. 1023144 (Appeal Decision April 29, 1993) it was held 
 
            that in an expedited procedure, a bill paid by claimant 
 
            creates an inference that the fee is reasonable.  In the 
 
            Wright case, defendants failed to overcome claimant's prima 
 
            facie case of reasonableness and it was held that $600 for 
 
            an independent medical examination was reasonable.  In 
 
            Wright, this deputy industrial commissioner wrote:
 
            
 
                    Claimant has met his burden of proof.  Dr. 
 
                 Rosenfeld's fee of $600.00 is reasonable.  
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
                 Claimant has paid the bill.  The fee does not 
 
                 appear outrageous or excessive.  The sensibilities 
 
                 of this deputy are not shocked.  Even Dr. Neff, 
 
                 who has a reputation as a "defense doctor", opines 
 
                 that his fee, in a case like the present one, will 
 
                 be in the $350 to $400 range.  It is beyond this 
 
                 deputy's imagination how $400 can be reasonable 
 
                 but $600 cannot.  This is a fine example of 
 
                 hair-splitting.  This deputy refuses to engage in 
 
                 hair-splitting or to tinker with the fee.
 
            
 
                    In this division, there is no predetermined fee 
 
                 schedule which covers various types of independent 
 
                 medical examinations.  This deputy declines to 
 
                 draft such a fee schedule.  The undersigned is 
 
                 quite convinced that the fee of $600 is fair and 
 
                 reasonable.  However, it is noted that a far 
 
                 different result may occur if the same type of 
 
                 examination is conducted, and the physician 
 
                 performing the independent medical exam charges 
 
                 $6,000.  Such is not the case here.
 
            
 
                 Claimant is entitled to an independent medical 
 
            examination pursuant to section 85.39.  He is not required 
 
            to request permission prior to the time that the hearing 
 
            issues were established.  Doctors who were retained by 
 
            defendant provided determinations that claimant had 
 
            sustained a permanent condition.
 
            
 
                 With respect to the present case, the fee of $500 is 
 
            not outrageous or shocking.  The physician drafted a 10 page 
 
            report which was detailed.  The fee of $500 is reasonable.  
 
            
 
                 Defendant is liable to pay for the cost of the 
 
            independent medical examination in the sum of $500.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant shall pay unto claimant one hundred (100) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of three hundred forty-one and 14/l00 
 
            dollars ($341.14) per week and commencing on May 21, 1991.
 
            
 
                 Defendant shall take credit for all permanent partial 
 
            disability benefits previously paid to claimant.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent per year.
 
            
 
                 Defendant shall pay five hundred dollars ($500) for the 
 
            cost of an independent medical examination with Kevin Smith, 
 
            M.D., and pursuant to section 85.39 of the Iowa Code.
 
            
 
                 Costs are taxed to defendant 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.
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of July, 1994.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Nick J. Avgerinos
 
            Attorney at Law
 
            Suite 1527
 
            135 S LaSalle St
 
            Chicago  IL  60603
 
            
 
            Mr. Steven M. Nadel
 
            Attorney at Law
 
            100 Court Ave  STE 600
 
            Des Moines  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                     1803; 1803.1; 2502; 2601; 2602
 
                                     Filed July 19, 1994
 
                                     MICHELLE A. McGOVERN
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            STEVE KELSO,                    :
 
                                            :        File No. 944038
 
                 Claimant,                  :
 
                                            :     A R B I T R A T I O N
 
            vs.                             :
 
                                            :        D E C I S I O N
 
            MAYTAG COMPANY,                 :
 
                                            :
 
                 Employer,                  :
 
                 Self-Insured,              :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
            
 
            1803, 1803.1
 
            
 
                 Claimant sustained a simultaneous bilateral injury to 
 
            his upper extremities.  The benefits owed were calculated on 
 
            a functional basis under section 85.34(2)(s).  According to 
 
            the statute claimant was entitled to 100 weeks of permanent 
 
            partial disability benefits.  The line of cases in Simbro 
 
            was followed.
 
            
 
            
 
            2601; 2602; 2502
 
            
 
                 Defendant was required to reimburse claimant for the 
 
            cost of an independent medical examination pursuant to 
 
            section 85.39.  The examination and report was in the sum of 
 
            $500.00.