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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            THERESA PESCIKA,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 946005
 
            SNAP-ON TOOLS CORPORATION,    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            ROYAL INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Theresa D. Pesicka, against her employer, Snap-
 
            On Tools Corporation, and its insurance carrier, Royal 
 
            Insurance Company, defendants.  The case was heard on 
 
            December 2, 1991, at the Hoover Building, in Des Moines, 
 
            Iowa.  The record consists of the testimony of claimant.  
 
            The record also consists of the testimonies of:  Julie 
 
            Pesicka, Loren Lee Pesicka, Lee Gunderson and Gary Erdman.  
 
            Additionally, the record consists of joint exhibits 1-4, and 
 
            claimant's exhibit A.
 
            
 
                 It is noted that some doctors' notes were impossible to 
 
            decipher.  It is my impression that if the attorneys cannot 
 
            read the evidence, the deputies cannot either.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:
 
            
 
                 1.  Whether claimant sustained an injury which arose 
 
            out of and in the course of her employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and any temporary or permanent disability;
 
            
 
                 3.  Whether claimant is entitled to any healing period 
 
            or permanent partial disability benefits;
 
            
 
                 4.  Whether claimant is entitled to any medical 
 
            benefits pursuant to section 85.27;
 
            
 
                 5.  The appropriate rate to use, if applicable;
 
            
 
                 6.  Whether claimant complied with section 85.26;
 
            
 
                 7.  Whether claimant is entitled to penalty benefits 
 

 
            
 
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            pursuant to section 86.13(4); and,
 
            
 
                 8.  Whether defendants are entitled to a credit 
 
            pursuant to section 85.38(2).
 
            
 
                                 findings of fact
 
            
 
                 Claimant is 43 years old.  She is married with three 
 
            children.  She has a high school diploma but no training 
 
            beyond the high school level.  Prior to her employment with 
 
            defendant, claimant worked at a McDonald's restaurant, 
 
            worked as a waitress, worked as an attendant in a gas 
 
            station, and worked at Winnebago Industries.  She commenced 
 
            her employment with defendant on January 23, 1984.  Her 
 
            first position required her to pull and push, and to use her 
 
            arms, shoulders and neck.
 
            
 
                 In 1985, claimant transferred to the position of press 
 
            brake operator.  Then she worked in the meter box 
 
            department.  Often, she worked with her hands and with her 
 
            arms above her head.  Her corporate medical records 
 
            indicated problems as early as March of 1984.
 
            
 
                 Claimant testified she began experiencing problems with 
 
            her low back and the area between her shoulders.  Claimant 
 
            described the pain between the shoulders as a burning pain.  
 
            She also described tingling in the hands, and low back pain, 
 
            with the left shoulder and neck worse than other areas.
 
            
 
                 At the time of the hearing, claimant testified that her 
 
            condition had worsened since January 23, 1984.  She stated 
 
            on direct examination that her condition had deteriorated in 
 
            the prior year.  Claimant admitted under cross-examination 
 
            that she was taking no prescription medications, and had not 
 
            done so since 1988.
 
            
 
                 As of November 22, 1991, claimant was laid off because 
 
            of slow sales.  Currently, call-backs are by seniority 
 
            rights.  There is no evidence that claimant was laid off 
 
            because of any work restrictions.  It is acknowledged that 
 
            claimant's work activities involved repetitive motions but 
 
            that defendant employer rotated various tasks.
 
            
 
                                conclusions of law
 
            
 
                 Claimant alleges that she sustained an injury or 
 
            injuries and/or occupational diseases on July 18, 1990, but 
 
            that any injuries which occurred between January 23, 1984, 
 
            the date of hire, and November 22, 1991, the date of layoff, 
 
            are also included under an injury date of July 18, 1990.
 
            
 
                 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); 
 

 
            
 
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            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 
 
            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 wholeies.  An occupational 
 
            disease is a disease which arises out of and in the course 
 
            of the employee's employment.  The disease must have a 
 
            direct causal connection with the employment and must follow 
 
            as a natural incident from injurious exposure occasioned by 
 
            the nature of the employment.  While the disease need not be 
 
            foreseeable or expected, after its contraction, it must 
 
            appear to have had its origin in a risk connected with the 
 

 
            
 
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            employment and to have resulted from that risk.  A disease 
 
            which follows from a hazard to which an employee has or 
 
            would have been equally exposed outside of the occupation is 
 
            not a compensable occupational disease.
 
            
 
                 The claimant need meet only two basic requirements to 
 
            prove causation of an occupational disease.  First, the 
 
            disease must be causally related to the exposure to the 
 
            harmful conditions in the field of employment.  Second, the 
 
            harmful conditions must be more prevalent in the employment 
 
            than in everyday life or other occupations.  Section 85A.8; 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
            
 
                 Where an employee is injuriously exposed to hazardous 
 
            conditions producing occupational disease while employed by 
 
            several successive employers, the employer where the 
 
            employee was last injuriously exposed is liable for the 
 
            total disability.  Doerfer Div. of CCA v. Nicol, 359 N.W.2d 
 
            428 (Iowa 1984).
 
            
 
                 To be compensable, an aggravation of an occupational 
 
            disease must be more than a temporary aggravation curable by 
 
            removal from the exposure.  McNeil v. Grove Feed Mill, II 
 
            Iowa Industrial Commissioner Report 261 (App. 1981).
 
            
 
                 Firstly, claimant alleges that she has sustained an 
 
            occupational disease or diseases.  While it is difficult to 
 
            determine what diseases she is alleging, this deputy 
 
            believes claimant is including the aforesaid body parts, of 
 
            low back, mid back, left shoulder, left and right upper 
 
            extremities, neck, and hands.
 
            
 
                 Section 85A.8 of the Iowa Code defines occupational 
 
            disease.  The section states that:
 
            
 
                 Occupational diseases shall be only those diseases 
 
                 which arise out of and in the course of the 
 
                 employee's employment.  Such diseases shall have a 
 
                 direct causal connection with the employment and 
 
                 must have followed as a natural incident thereto 
 
                 from injurious exposure occasioned by the nature 
 
                 of the employment.  Such disease must be 
 
                 incidental to the character of the business, 
 
                 occupation or process in which the employee was 
 
                 employed and not independent of the employment.  
 
                 Such disease need not have been foreseen or 
 
                 expected but after its contraction it must appear 
 
                 to have had its origin in a risk connected with 
 
                 the employment and to have resulted from that 
 
                 source as an incident and rational consequence.  A 
 
                 disease which follows from a hazard to which an 
 
                 employee has or would have been equally exposed 
 
                 outside of said occupation is not compensable as 
 
                 an occupational disease.
 
            
 
                 To prove the causation element described in section 
 
            85A.8, claimant must show by a preponderance of the evidence 
 
            (1) the disease is causally related to the exposure to the 
 
            harmful conditions of the field of employment, and (2) the 
 
            harmful conditions must be more prevalent in the employment 
 

 
            
 
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            concerned than in everyday life or in other occupations.  
 
            Siefkas v. Furnas Electric Co., File No. 944404 
 
            (Arbitration Decision, November 12, 1991), appeal filed 
 
            November 21, 1991 (citing McSpadden v. Big Ben Coal Co., 288 
 
            N.W.2d 181 (Iowa 1980)); Frit Indus. v. Langenwalter, 443 
 
            N.W.2d 88 (Iowa App. 1989).
 
            
 
                 According to the deputy commissioner writing Siefkas, 
 
            File No. 944404, slip op. at 5:
 
            
 
                    Although McSpadden might be read as eliminating 
 
                 the arose out of and in the course of 
 
                 requirements, the statute clearly retains those 
 
                 elements.  Perhaps the intent of the opinion in 
 
                 McSpadden is to emphasize the peculiar aspects of 
 
                 occupational disease.  Lawyer & Higgs, Iowa 
 
                 Workers' Compensation -- Law and Practice, Chapter 
 
                 18, sections 1-3.
 
            
 
                    It is conceivable that repetitive motion 
 
                 disorders may constitute either an injury or an 
 
                 occupational disease depending upon the particular 
 
                 facts in the case.  Accordingly, determinations as 
 
                 to what constitutes an occupational disease must 
 
                 be made on a case-by-case basis.
 
            
 
                    In Peters v. Lamoni Auto Assemblies, Inc., File 
 
                 No. 809203 (Appeal Decision, March 31, 1989), 
 
                 aff'd district court October 6, 1989, then 
 
                 Industrial David E. Linquist held that claimant 
 
                 did not sustain her burden of proof that her left 
 
                 carpal tunnel syndrome was an occupational 
 
                 disease.  Commissioner Linquist also determined 
 
                 that, since claimant was entitled to benefits 
 
                 under chapter 85, she was not entitled to benefits 
 
                 pursuant to section 85A.14.
 
            
 
                 In the recently decided case of Noble v. Lamoni 
 
            Products, 857575, 851309 (Appeal filed May 7, 1992), the 
 
            Iowa Industrial Commissioner determined that carpal tunnel 
 
            syndrome is not an
 
            
 
            
 
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            occupational disease under section 85A.  The industrial 
 
            commissioner in Noble wrote that:
 
            
 
                    The record shows that claimant's carpal tunnel 
 
                 syndrome was caused not by an invasion of her body 
 
                 by an outside agent, but by external traumatic 
 
                 forces.  Although the external forces were spread 
 
                 out over time and were made up of a series of 
 
                 micro-traumas, nevertheless they were traumas and 
 
                 as such constitute injuries, not a disease.  The 
 
                 legislative intent in enacting chapter 85A is 
 
                 hereby determined to have been to compensate those 
 
                 work-related conditions that result from exposure 
 
                 to various agents that would invade the body and 
 
                 act adversely on it, and which could not be 
 
                 compensated as a traumatic injury under chapter 
 
                 85.  Claimant's carpal tunnel syndrome is hereby 
 
                 determined to be a traumatic cumulative injury 
 
                 under chapter 85 and not an occupational disease 
 
                 under chapter 85A.  
 
            
 
                    Claimant argues that compensating her carpal 
 
                 tunnel syndrome under chapter 85 is unfair, in 
 
                 that her compensation under that chapter will be 
 
                 limited to the scheduled benefits under Iowa Code 
 
                 subsections 85.34(2)(a-t).  Claimant urges that 
 
                 compensation as an occupational disease would be 
 
                 based on an industrial basis, rather than the 
 
                 functional basis utilized in subsections 85.34(2) 
 
                 (a-t), and produce a more fair result.  Claimant 
 
                 assumes that compensation under chapter 85A would 
 
                 always be on an industrial disability basis, and 
 
                 nothing in this decision addresses that question.  
 
                 Further, the allegation that chapter 85 operates 
 
                 unfairly is not a valid basis for treating 
 
                 claimant's condition under chapter 85A.
 
            
 
                    It is noted that some conditions, such as 
 
                 pregnancy, renal failure, menopause, diabetes 
 
                 mellitus, acromegaly, edema, tuberculosis, and 
 
                 other conditions may produce carpal tunnel 
 
                 syndrome as a symptom.  This decision does not 
 
                 address carpal tunnel syndrome resulting from a 
 
                 disease.  This holding is limited to the factual 
 
                 situation where a worker's carpal tunnel syndrome 
 
                 is caused by traumatic repetitive work activity.  
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                 In the instant case, claimant at one time or another, 
 
            has been diagnosed with bilateral carpal tunnel syndrome, 
 
            possibly thoracic outlet syndrome, acute myofascial pain 
 
            syndrome, overuse injury of the left shoulder deltoid 
 
            muscle, degenerative disc disease, acute cervical strain, 
 
            overuse syndrome with respect to the left parascapular 
 
            musculature and cervical region, soft tissue injury to the 
 
            neck and left shoulder, low back injury, lateral 
 
            epicondylitis of the elbow, arthritis of the lumbar spine, 
 
            and stenosis at L4-5.
 

 
            
 
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                 Next, claimant alleges that if she cannot recover under 
 
            section 85A, then she is able to recover under chapter 85 as 
 
            an injury.
 
            
 
                 Claimant alleges she has sustained injuries which arose 
 
            out of and in the course of her employment on July 18, 1990.  
 
            According to her original notice and petition, she claims 
 
            that:
 
            
 
                    This is the date of the most recent cumulative 
 
                 trauma to the body region affected or disabled.  
 
                 However, the period of injury commenced when 
 
                 claimant started working at Snap-On, was 
 
                 manifested first in the late 1978, was manifested 
 
                 again on March 19, 1984, and has been manifested 
 
                 periodically, but continuously ever since.  By the 
 
                 time of hearing herein, this injury period will 
 
                 have been extended further to the 1st day worked 
 
                 before hearing.
 
            
 
                    Under the pleading generally, claimant asserts 
 
                 one continuous injury to a body part which is a 
 
                 body region over the above period of time.  
 
                 However, she recognizes and assumes that the 
 
                 Commissioner may find separate injuries, either 
 
                 traumatic, cumulative, or both, to one region or 
 
                 to lesser-included body parts occurring at 
 
                 included dates or periods.  Accordingly, she has 
 
                 not filed separate petitions for every neck, 
 
            shoulders and back.  These cumulative injuries are causally 
 
            related to her employment.  There is no dispute that 
 
            claimant has engaged in repetitive type activities at work.  
 
            These activities have impacted upon claimant's condition in 
 
            a negative fashion.  She has established the requisite 
 
            causal connection between her occupation and her condition.
 
            
 
                 The next issue deals with the nature and extent of 
 
            claimant's condition.  She alleges she is permanently 
 
            disabled and that her permanent disability is an industrial 
 
            disability.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 

 
            
 
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            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Suffice it to say, claimant has sought treatment and 
 
            evaluation from a myriad of health practitioners for her 
 
            aforementioned injuries.  Defendants have complied with 
 
            nearly every request for care which she has made.  Since 
 
            January of 1989, claimant has been seen by:  Brian W. 
 
            Nelson, M.D., an orthopedist; Q. J. Durward, M.D.; Kenneth 
 
            B. Washburn, M.D., a neurologist; S.D. Richards, D.O., 
 
            family physician; Kossuth County Hospital, physical therapy; 
 
            R.E. Jongewaard, M.D.; Michael W. Crane, M.D.; J. Michael 
 
            Donohue, M.D., Iowa Lakes Orthopaedics, P.C.; Janelle Kampf, 
 
            P.T.; Robert McCoy, M.D., Surgical Associates; Harry Wm. 
 
            Hargett, D.C., Spine Injury Center; Verland G. Rients, D.C.; 
 
            Thomas F. DeBartolo, M.D., Occupational Medicine; and, M. 
 
            Davenport, P.T., M.A., Occupational Sports Medicine Clinic.
 
            
 
                 The diagnoses have usually centered around a 
 
            "myofascial pain syndrome."  (Jt. Exs, p. 211)
 
            
 
                 Dr. Donohue has diagnosed claimant as having:
 
            
 
                 Assessment:  1) Recurrence of overuse symptoms 
 
                 with respect to left parascapular musculature and 
 
                 cervical region.
 
                           2) Status post low back 
 
            injury--subjective complaints outweight [sic] 
 
            objective findings.
 
            
 
                 Later, Dr. Donohue revised his diagnosis to:
 
            
 
                    Neurological evaluation of both upper 
 
                 extremities is intact.
 
            
 
                    Assessment:  1)  Status post low back 
 
                 injury--tolerating transition back to work with 
 
                 mild residual symptoms.
 
                2)  Status post neck and left shoulder soft 
 
            tissue injury with residual symptoms--slight 
 
            decrease in range of motion.
 
            
 
            (Jt. Exs., p. 268)
 
            
 
                 Dr. Donohoe, as of March 21, 1990, rated claimant as 
 
            having a 2 percent impairment to the left upper extremity.  
 

 
            
 
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            Claimant was released to return to work without 
 
            restrictions.  Later, on April 17, 1990, Dr. Donohoe 
 
            modified his impairment rating to 1 percent of the body as a 
 
            whole.  One month later, Dr. Donohoe rated claimant's low 
 
            back condition.  He opined that claimant had reached maximum 
 
            medical improvement on May 16, 1990, and that based upon 
 
            objective findings, claimant had a 0 percent impairment to 
 
            the low back.
 
            
 
                 On November 12, 1991, Dr. Donohoe again reviewed his 
 
            evaluation.
 
            
 
                    Plan:  I related to the patient that the 
 
                 purpose of the examination today was to 
 
                 specifically answer several questions with respect 
 
                 to my opinions.  I related to her that in general, 
 
                 my opinions are unchanged.  Specifically, with 
 
                 respect to the first question of Mr. Thune's 
 
                 letter of October 31, 1991, it continues to be my 
 
                 opinion that Ms. Pesicka may continue to work at 
 
                 Snap-On Tools without significant risk of 
 
                 objective deterioration in her situation if she 
 
                 can tolerate her discomfort.
 
            
 
                    I remain of the opinion that the patient is not 
 
                 a surgical candidate with respect to her lower 
 
                 back problems and that she does not have any 
 
                 impairment associated with this problem.
 
            
 
                    The patient's previous 2% impairment of the 
 
                 left upper extremity was based in limitation in 
 
                 external rotation on the left noted on 3-21-90.  
 
                 This rating is obtained from the Guide to 
 
                 Evaluation of Permanent Impairment, Third Edition, 
 
                 Revised.  As noted today, the patient's range of 
 
                 motion with respect to external rotation as well 
 
                 as all other motions in the left shoulder are 
 
                 symmetrical and, therefore, at this point, I would 
 
                 change my opinion in that the patient does not 
 
                 appear to have any functional impairment based on 
 
                 objective findings with respect to her left 
 
                 shoulder.  It should also be noted that the 
 
                 patient has no crepitation with passive range of 
 
                 motion of either shoulder.
 
            
 
                    Finally, with respect to functional impairment 
 
                 with respect to the numbness in her hands, 
 
                 although the patient does have some slowing on EMG 
 
                 as well as nerve conduction studies, she has what 
 
                 appears to be identical findings on both hands and 
 
                 symptoms only on the left side.  Based on the lack 
 
                 of objective findings, I would agree with Dr. 
 
                 McCoy's previous statement in that there does not 
 
                 appear to be objective impairment associated with 
 
                 this condition at this point.
 
            
 
            (Jt. Exs., pp. 342-342)
 
            
 
                 Robert E. McCoy, M.D., on August 3, 1990, evaluated 
 
            claimant's right hand and right upper extremity.  He opined 
 

 
            
 
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            that based upon objective findings, claimant had no 
 
            functional impairment.  (Jt. Exs. pp 281-283)
 
            
 
                 H. Wm. Hargett, D.C., provided no impairment rating.
 
            
 
                 Thomas F. DeBartolo requested a functional capacity 
 
            evaluation.  The evaluation was performed in October of 
 
            1991.  It was forwarded to Dr. DeBartolo.  On November 4, 
 
            1991, he opined that:
 
            
 
                    It is my impression that the neck discomfort 
 
                 that the patient experiences is secondary to the 
 
                 weakness of the left upper extremity and the 
 
                 discomfort is secondary.  With the weak anterior 
 
                 muscle grouping she is exerting more or attempting 
 
                 to compensate with muscles such as her trapezium 
 
                 that as that fatigue then causes her to have a 
 
                 sense of discomfort and I do not feel that that 
 
                 would lead to a permanent impairment if the 
 
                 patient would seek more appropriate vocational 
 
                 activities.
 
            
 
                    Therefore, in summary, it is my impression that 
 
                 the patient's impairment of her right upper 
 
                 extremity is 10% due to the carpal tunnel and the 
 
                 patient's impairment to the left upper extremity 
 
                 is 33%, 25% for the thoracic outlet, and 10% for 
 
                 the carpal tunnel using the combined values chart.
 
            
 
            (Jt. Exs., pp. 337-338)
 
            
 
                 Dr. Donohue later reviewed Dr. DeBartolo's evaluation.  
 
            Dr. Donohue did not accept claimant's purported thoracic 
 
            outlet syndrome to be work related.  Rather, Dr. Donohue 
 
            opined the purported syndrome was congenital in nature.
 
            
 
                 The undersigned deputy finds this to be a troublesome 
 
            case.  There are few objective findings which point to any 
 
            permanent functional impairments, despite years of 
 
            treatment.  Nevertheless, claimant has experienced chronic 
 
            pain in many parts of her body.  This deputy is quite 
 
            certain that the pain is genuine.  Claimant is entirely 
 
            credible.  She is motivated and had returned to work on 
 
            numerous occasions.  The treating physicians, Dr. Donohue 
 
            and Dr. McCoy, are accorded great weight.  They can find no 
 
            permanent functional impairments despite years of treatment.  
 
            The case lacks objective findings of any permanency.  
 
            Claimant had returned to work in January of 1991.  She was 
 
            released to work without any restrictions.  She worked until 
 
            her layoff.  The layoff was unrelated to her work injuries.
 
            
 
                 Based upon the foregoing, it is the determination of 
 
            the undersigned that claimant has no permanent partial 
 
            disability.  However, because of the nature of her chronic 
 
            pain, it appears advisable for claimant to participate in 
 
            some type of pain management clinic.
 
            
 
                 Claimant has sustained a temporary total disability, 
 
            and a temporary partial disability.
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 Claimant has proven she has a temporary total 
 
            disability.  Section 85.33(1) governs the payment of 
 
            temporary total disability benefits.  The section provides:
 
            
 
                    Except as provided in subsection 2 of this 
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 is medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 With respect to temporary benefits, the parties 
 
            stipulate that included in the records are:
 
            
 
                 (a)  All drafts which claimant negotiated to her 
 
            benefits:
 
            
 
                 (b) Are all the drafts for weekly compensation, 
 
            including temporary total disability, healing period and 
 
            permanent partial disability, and for temporary partial 
 
            benefits which defendants tendered to claimant;
 
            
 
                 (c) Actually were received by or on behalf of claimant 
 
            on the date handwritten on any draft on which the words 
 
            "received" and/or "Theresa S. Pesicka" also were 
 
            handwritten;
 
            
 
                 (d) Were mailed near the dates handwritten and/or 
 
            printed with the handwritten and/or printed word "mailed" on 
 
            drafts with such handwriting and/or printing;
 
            
 
                 (e) Were, when written on claimant's account, checks 
 
            received and negotiated by defendants in response to their 
 
            requests for compensation benefit overpayment refunds.
 
            
 
                 This issue is governed by the case of Simonson v. Snap-
 
            on Tools, 798628, 842007, 851960.  There the industrial 
 
            commissioner determined that:
 
            
 
                    For purposes of determining the date upon which 
 
                 payments were made, it is held that payments shall 
 
                 be deemed "made" on the date deposited into the 
 
                 United States mail addressed to claimant, or, if 
 
                 not so mailed, on the date made available to 
 
                 claimant (not merely made available to Snap-On 
 
                 Tools in the case of checks issued by Royal 
 
                 Insurance Company).
 
            
 
                 With respect to the issue of interest pursuant to 
 
            section 85.30, the undersigned directs the parties to 
 
            Simonson v. Snap-On Tools, supra.  The industrial 
 
            commissioner wrote:
 
            
 
                    However, it does appear that interest has not 
 
                 been paid on delayed benefits and on benefits paid 
 
                 at less than the rate found herein.  Claimant 
 
                 correctly points out that payments should be 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 applied first to accrued interest up to the date 
 
                 of payment, and then to principal amounts due.  
 
                 Huner v. Doolittle, 3 Greene 76-77 (Iowa 1851).  
 
                 The parties shall be left to calculate interest 
 
                 due pursuant to Iowa Code section 85.30.  If 
 
                 further intervention by this agency is needed to 
 
                 resolve any dispute as to such calculations, the 
 
                 parties are warned in advance of the possibility 
 
                 that a certified public accountant might be 
 
                 retained as an expert and the cost thereof 
 
                 assessed to one or several parties as may seem 
 
                 just.
 
            
 
                 Additionally, with respect to interest, the Iowa 
 
            Industrial Commissioner held in Meyers, supra:
 
            
 
                 The decision of the deputy filed September 30, 
 
                 1991 is affirmed and is adopted as the final 
 
                 agency action in this case with the following 
 
                 additional analysis:
 
            
 
                      Section 85.30 expressed legislative 
 
                      intent that interest on unpaid 
 
                      compensation be computed from the date 
 
                      each payment comes due, starting with 
 
                      the eleventh day after the 
 
                      injury....Interest is therefore payable 
 
                      on such installment from that due date, 
 
                      and similarly with the following weekly 
 
                      payments.
 
            
 
                 Interest is computed according to the longstanding 
 
                 rule that partial payments are applied first to 
 
                 accrued interest and the remainder to reduce the 
 
                 permanent partial disability benefits award.  
 
                 McNeal v. Iowa Department of Transportation, 
 
                 Order Nunc Pro Tunc, May 31, 1990.  Also see 
 
                 Clausen v. Carmar Farms, Ltd., Vol. 1, No. 3 State 
 
                 of Iowa Industrial Commissioner Decisions 540 
 
                 (1985).
 
            
 
                    The parties are directed to calculate interest 
 
                 on any weekly benefits not paid when due based on 
 
                 Iowa Code section 85.30 and the above cited 
 
                 authority.  If a dispute exists between the 
 
                 parties on how the interest should be calculated, 
 
                 the parties can then bring the question before 
 
                 this agency for resolution.
 
            
 
                 Such is the same situation here.  The parties are 
 
            directed to calculate interest on any weekly benefits not 
 
            paid when due.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Claimant may be entitled to certain interest pursuant 
 
            to section 85.30.  The parties are directed to calculate 
 
            interest on any weekly benefits not paid when due based upon 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            section 85.30 and the above cited authority, and that if a 
 
            dispute exists between the parties on how the interest 
 
            should be calculated, the parties can then bring the 
 
            question before this agency for resolution, with costs of a 
 
            CPA assessed to the parties.
 
            
 
                 Costs are taxed to the parties for their own respective 
 
            costs.
 
            
 
                 Defendants are to file a first report of injury within 
 
            ten (10) days of the file date of this decision.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division and pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of May, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Mark S Soldat
 
            Attorney at Law
 
            714 E State St
 
            Algona IA 50511
 
            
 
            Mr Paul C Thune
 
            Attorney at Law
 
            218 6th Ave  Ste 300
 
            P O Box 9130
 
            Des Moines IA 50306
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1803
 
                                          Filed May 13, 1992
 
                                          Michelle A. McGovern
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            THERESA PESCIKA,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 946005
 
            SNAP-ON TOOLS CORPORATION,    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            ROYAL INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803
 
            Claimant was not entitled to permanent partial disability 
 
            benefits.  Nevertheless, claimant had experienced chronic 
 
            pain in many parts of her body.  The deputy was quite 
 
            certain that the pain was genuine.  Claimant was entirely 
 
            credible.  She was motivated and she had returned to work on 
 
            numerous occasions.  The treating physicians, Dr. Donohue 
 
            and Dr. McCoy, were accorded great weight.  They could find 
 
            no permanent functional impairments.  The case lacked 
 
            objective findings of any permanency.  Claimant had returned 
 
            to work in January of 1991.  She was released to work 
 
            without any restrictions.  She worked until her layoff.  The 
 
            layoff was unrelated to her work injuries.
 
            Therefore, it was the determination of the undersigned that 
 
            claimant had no permanent partial disability.
 
            
 
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            THERESA PESCIKA,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 946005
 
            SNAP-ON TOOLS CORPORATION,      
 
                                                    R E M A N D
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            ROYAL INSURANCE COMPANY,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            This matter was originally dismissed by the industrial 
 
            commissioner for failure to timely file an appeal.  On 
 
            judicial review of the dismissal the district court reversed 
 
            the industrial commissioner, deemed the intra-agency appeal 
 
            timely filed, and remanded for consideration of the 
 
            intra-agency appeal on the merits.  This decision is issued 
 
            based on the remand by the district court.
 
            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.  Only those facts and 
 
            conclusions of law necessary to resolve the issues raised on 
 
            appeal will be discussed.
 
            
 
                                     ISSUES
 
            
 
            The issues that were raised at the time of hearing (see the 
 
            hearing assignment order filed June 12, 1991) and that have 
 
            been preserved in claimant's appeal are:  what was the date 
 
            of injury to claimant's upper extremities, neck, and 
 
            shoulder; whether claimant is entitled to any weekly 
 
            disability benefits as a result of an injury to her upper 
 
            extremities, neck, and shoulder; whether claimant is 
 
            entitled to interest on weekly benefits, if any are awarded; 
 
            whether claimant is entitled to penalty pursuant to Iowa 
 
            Code section 86.13; the rate of compensation; whether 
 
            testimony from a lay witness should be excluded; and how 
 
            costs are to be taxed.
 
            
 
                               FINDINGS OF FACT
 
            
 
            Theresa Pesicka (hereinafter claimant) was 43 years old at 
 
            the time of the hearing.  She commenced working for 
 
            defendant employer on January 23, 1984.  The job she did 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            first as a spot welder required her to pull and push and to 
 
            use her arms, shoulders and neck.  In 1985 she transferred 
 
            to a job as a press brake operator where the average amount 
 
            she lifted was 25 pounds.  This job involved the use of her 
 
            arms and her hands above her head.  She also worked in punch 
 
            press where she did not have to lift or bend.  She also 
 
            worked in metal box assembling and packing which required 
 
            use of her hands above her head.  She testified she had pain 
 
            between her shoulders and in her low back when working as a 
 
            press brake operator.  She was working in the press brake 
 
            department when she was laid off on November 22, 1991.  She 
 
            was able to rotate jobs on a daily basis for those jobs she 
 
            held more recently before the hearing date.
 
            Claimant saw a variety of doctors for complaints of elbow 
 
            and shoulder pain beginning in 1984.  On March 13, 1985 R.E. 
 
            McCoy, M.D., performed right lateral epicondylar and right 
 
            carpal tunnel releases.  (Joint Exhibit 1, page 50)  She 
 
            missed work following the surgery and periodically through 
 
            1987.  Some of the time she missed work was for medical 
 
            treatment and some of the time she was taken off work by a 
 
            medical practitioner.  (See e.g. Jt. Ex. 1, pp 79-80)  She 
 
            also was treated and missed work for a left foot injury 
 
            beginning in May 1987.
 
            On August 17, 1987 claimant complained to R.E. Jongewaard, 
 
            M.D., of pain in the neck.  (Jt. Ex. 1, p. 87)  Claimant was 
 
            referred to Scott B. Neff, D.O., an orthopaedic surgeon, who 
 
            saw claimant on August 31, 1987.  Dr. Neff found no 
 
            neurologic involvement nor permanent impairment.  He 
 
            described her condition as chronic cervico-thoracic 
 
            myofascial tension state.  (Jt. Ex. 1, p. 91)  Claimant was 
 
            taken off work by Dr. Neff beginning August 31, 1987.  (Jt. 
 
            Ex. 1, p. 92 and Jt. Ex. IV, p. 45)  Claimant was seen by 
 
            David J. Boarini, M.D., a neurosurgeon on October 8, 1987.  
 
            Dr. Boarini found normal strength and range of motion and 
 
            myofascial neck pain.  (Jt. Ex. 1, p. 104)  Claimant saw 
 
            Matt Widus, M.D., on February 11, 1988 who noted the neck 
 
            was supple with full range of motion, although extreme 
 
            flexion and extension sent sharp pain down her back.  (Jt. 
 
            Ex. 1, p. 112)  Claimant was seen by Brian W. Nelson, M.D., 
 
            on February 22, 1988 whose assessment was chronic myofacial 
 
            strain of the paraspinus, trapezius and romboid musculature 
 
            and mild left thoracic outlet syndrome.  (Jt. Ex. 1, p. 116)  
 
            Claimant was treated conservatively by Dr. Nelson.  Dr. 
 
            Nelson referred claimant to Q.J. Durward, M.D., a 
 
            neurologist.  Dr. Durward performed a cervical myelogram on 
 
            May 17, 1988 which was basically normal.  (Jt. Ex. 1, p. 
 
            138)  Thereafter Dr. Nelson continued conservative treatment 
 
            of claimant.  Claimant was treated by John D. Calisesi, 
 
            D.C., from June through September 1988.  He agreed that she 
 
            had a chronic myofascial syndrome with subluxation complex 
 
            of C1/2 and T4/5 vertebrae.  (Jt. Ex. 1, p. 153)
 
            On November 1, 1988 claimant complained of low back pain.  
 
            (Jt. Ex. 1, p. 166)  She again complained of low back pain 
 
            on December 7, 1988 and was referred to Dr. Jongewaard.  Dr. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Jongewaard described her condition as left para lumbar 
 
            muscle strain with radiation of pain to left lower 
 
            extremity.  (Jt. Ex. 1, p. 168)  In January, February and 
 
            March 1989 claimant continued to complain about shoulder 
 
            pain and occasionally complained of low back pain.  (Jt. Ex. 
 
            II, pp. 172-181)  Claimant was treated by Harry W. Hargett, 
 
            D.C., from March 30 through May 22, 1990.  Dr. Hargett's 
 
            assessment included cervical and lumbar strain with 
 
            cervical-brachial syndrome healing with myofascial 
 
            fibrositis and segmental dysfunction.  (Jt. Ex. II, p. 321)
 
            Claimant was seen by Kenneth B. Washburn, M.D., on March 31, 
 
            1989.  Dr. Washburn noted a number of problems and 
 
            specifically noted myofascial pain syndrome of the upper 
 
            trapezius/posterior shoulder area.  Because the EMG and 
 
            myelogram were normal, Dr. Washburn did not see a problem of 
 
            cervical radiculopathy.  Claimant continued to have regular 
 
            and periodic complaints of left shoulder pain.  She began 
 
            making regular complaints of low back pain beginning August 
 
            1, 1989.  (Jt. Ex. II, pp. 208-226)  No evidence of disc 
 
            herniation was noted.  (Jt. Ex. II, pp. 212 and 221)  On 
 
            November 8, 1989 Michael W. Crane, M.D., was not sure of the 
 
            etiology of his impression of an acute cervical strain (Jt. 
 
            Ex. II, p. 231)
 
            Claimant was seen by J. Michael Donohue, M.D., on December 
 
            4, 1989.  Dr. Donohue assessed recurrence of overuse 
 
            symptoms with respect to left pavascapular musculature and 
 
            cervical region and status post low back injury--subjective 
 
            complaints outweigh objective findings.  (Jt. Ex. II, p. 
 
            239)  Dr. Donohue, like Dr. Nelson before him, recommended a 
 
            monitored vocational rehabilitation program.  (Jt. Ex. II, 
 
            p. 243).  Claimant again underwent a rehabilitation.  On 
 
            March 21, 1990 Dr. Donohue agreed with Dr. Nelson that 
 
            claimant could be released without restrictions but 
 
            indicated claimant had sustained a two percent impairment of 
 
            the left upper extremity.  (Jt. Ex. II, p. 268)  He also 
 
            thought claimant could be released without restrictions for 
 
            the lower back and he did not anticipate any significant 
 
            impairment with respect to the lower back.  (Jt. Ex. II, p. 
 
            269)
 
            On August 3, 1990 Dr. McCoy saw no rateable impairment of 
 
            function of the problems which caused a need for surgery at 
 
            the right elbow and carpal tunnel (Jt. Ex. II, p. 283)
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Claimant was evaluated at the St. Joseph Mercy Occupational 
 
            Upper Extremity Clinic by Thomas F. DeBartolo, M.D., for a 
 
            two day functional capacity evaluation on October 2, 1991.  
 
            It was Dr. DeBartolo's opinion that claimant's subjective 
 
            complaints of left shoulder and left arm complaints were 
 
            related primarily to what would have to be best described as 
 
            thoracic outlet syndrome with sagging shoulders, poor 
 
            posture, documented weakness and the diminished pulse on the 
 
            left side as the arm is abducted.  He formed his opinion of 
 
            thoracic outlet even though nerve conduction studies and 
 
            EMGs did not show evidence of a decreased velocity distal to 
 
            the mid arm.  He also found claimant had a 10 percent 
 
            impairment to the left upper extremity due to bilateral 
 
            carpal tunnel and 25 percent for the thoracic outlet.  (Jt. 
 
            Ex. II, pp. 327-338)
 
            Claimant was seen by Dr. Donohue on November 12, 1991 for a 
 
            formal evaluation.  His assessment was:
 
            1)  Status post left shoulder strain--overuse type 
 
            syndrome--symptoms unchanged despite aggressive conservative 
 
            care in the past--no specific signs of radiculopathy.
 
            2)  Chronic cervical strain--associated with left shoulder 
 
            strain--unchanged despite conservative care.
 
            3)  Left upper extremity dysfunction--EMG evidence of 
 
            bilateral carpal tunnel syndrome but negative clinical 
 
            findings to confirm significant peripheral nerve entrapment.
 
            4)  History of chronic low back discomfort--no significant 
 
            objective findings on examination today suggesting more of a 
 
            chronic myofascial strain syndrome.
 
            
 
            (Jt. Ex. II, p. 341)  Because claimant's range of motion 
 
            with respect to external rotation as well as all other 
 
            motions in the left shoulder were symmetrical,  Dr. Donohue 
 
            changed his prior opinion of a two percent impairment to no 
 
            functional impairment of the left shoulder.  Based on a lack 
 
            of objective findings he agreed with Dr. McCoy that there 
 
            was no objective impairment associated with numbness in the 
 
            hands.  Based on objective tests Dr. Donohue conducted, he 
 
            disagreed with Dr. DeBartolo's that claimant's symptoms 
 
            could be attributed to thoracic outlet syndrome.  (Jt. Ex. 
 
            II, p. 344)
 
            Dr. Rooney took claimant off work from November 10-15, 1987 
 
            for low back pain.  (Jt. Ex. I, pp. 105-108)  On April 18, 
 
            1988 Dr. Nelson took claimant off work and was to reevaluate 
 
            claimant after she was seen by a neurosurgeon.  (Jt. Ex. I, 
 
            p. 132)  Claimant was seen by Dr. Durward on May 17, 1988.  
 
            On May 27, 1988 Dr. Nelson returned claimant to work 
 
            effective May 31, 1988.  On August 15, 1988 Dr. Nelson took 
 
            claimant off work with a return on Wednesday (August 17, 
 
            1988).  (Jt. Ex. I, p. 156)  On December 8, 1988 Dr. 
 
            Jongewaard took claimant off work because of low back pain 
 
            and returned claimant to work effective December 15, 1988.  
 
            (Jt. Ex. 1, pp. 166 and 177)  On November 9, 1989 Dr. Crane 
 
            took claimant off work for two weeks for acute cervical 
 
            strain.  He was unsure of the etiology.  (Jt. Ex. II, pp. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            231-232)  On December 4, 1989 Dr. Donohue took claimant off 
 
            work "until further notice."  (Jt. Ex. II, p. 240)  Dr. 
 
            Donohue eventually extended the time off work until a return 
 
            to work on February 22, 1990.  (Jt. Ex. II, p. 265)
 
            Claimant regularly missed work for medical treatment.  The 
 
            time off work for medical treatment ranged from two hours to 
 
            one day.  See claimant's appeal brief pages 7 and 8 and 
 
            joint exhibits I and IV.
 
            There were periods of time between May 31, 1988 and March 
 
            10, 1990 when claimant's working hours were restricted to 
 
            less than 40 hours a week by her medical care providers.  
 
            Those time periods are:
 
            
 
                 May 31 - August 14, 1988           11.143 weeks
 
                 August 19 - October 16, 1988        8.429 weeks
 
                 April 24 - May 7, 1989              2     weeks
 
                 February 26 - March 10, 1990        2     weeks
 
                                                    23.572 weeks total
 
            
 
            See claimant's appeal brief page 9 and joint exhibits I and 
 
            IV.
 
            There were periods of time when claimant was allegedly taken 
 
            off work by her treating medical providers.  The times after 
 
            August 31, 1987 are:
 
            August 31 - October 11, 1987
 
                 November 10-15, 1987
 
                 February 11 - May 30, 1988
 
                 August 15 - August 18, 1988
 
                 December 8 - December 14, 1988
 
                 April 6 - 23, 1989
 
                 August 1 - 25, 1989
 
                 November 9, 1989 - February 25, 1990
 
            
 
            See claimant's appeal brief pages 10-11 and joint exhibits I 
 
            and IV.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Defendant employer's insurance carrier has paid claimant 
 
            temporary partial disability benefits for the following 
 
            periods after August 31, 1987, according to claimant's 
 
            appeal brief at pages 25-26.
 
            
 
            June 2 - Oct. 19, 1988  (Jt. Ex. III, pp. 30-52)   20     
 
            weeks
 
            April 24 - May 7, 1989  (Jt. Ex. III, pp. 55-57)    2     
 
            weeks
 
            Oct. 21 - Oct. 22, 1989 (Jt. Ex. III, p. 59)         .286 
 
            weeks
 
            Feb. 26 - Mar. 10, 1990 (Jt. Ex. III, pp. 74-75)    2     
 
            weeks
 
                                                 total paid   24.286 
 
            weeks
 
            Defendant employer's insurance carrier has paid temporary 
 
            total disability benefits for the following periods 
 
            according to claimant's appeal brief at pages 25-26 (noted 
 
            as H.P.):
 
            
 
                                       Weekly
 
                                      rate paid
 
            
 
            Aug. 31 - Sept. 21, 1987   $276.88    (Jt. Ex. III, pp. 
 
            14-15)
 
            Feb. 11 - May 25, 1988     $276.88    (Jt. Ex. III, pp. 
 
            18-28)
 
            Apr. 6 - 23, 1989          $286.10 ($572.20 î 2)
 
                                                  (Jt. Ex. III, p. 53)
 
            Aug. 1 - 24, 1989          $253.06 ($867.75 î 3.429)
 
                                                  (Jt. Ex. III, p. 58)
 
            Nov. 10, 1989 - 
 
            Feb. 2[5], 1990            $286.10    (Jt. Ex. III, pp. 
 
            60-74)
 
            Claimant's attendance at work was sporadic in 1984, 1985, 
 
            1986 and the first three quarters of 1987.  Relatively 
 
            speaking, claimant worked fairly regularly from May 1986 
 
            through August 1987.  Beginning August 31, 1987 through 
 
            September 1988 claimant rarely, if ever, worked.  Beginning 
 
            in October 1988 and continuing through December 1990 
 
            claimant's work attendance was again sporadic and included 
 
            extended periods of continued absences.  (Jt. Ex. IV, pp. 
 
            42-48)
 
            Claimant alleges the appropriate rate for an injury date of 
 
            August 31, 1987 is $269.46 based upon a gross weekly 
 
            earnings of $408.22.  (See claimant's appeal brief, page 14)  
 
            It is not readily apparent how claimant arrived at these 
 
            figures.  The time periods included in Jt. Ex. IV, p. 3 
 
            ended on June 27, 1987 and in Jt. Ex. IV, p. 38 ended on 
 
            July 4, 1987.  Effective June 29, 1987 claimant's rate of 
 
            pay was $6.84 per hour.  (Jt. Ex. IV, p. 23) (A 40-hour work 
 
            week at $6.84 per hour would result in gross earnings of 
 
            $273.60.)  The pay check stubs in Jt. Ex. IV, pp. 70-125 
 
            only cover the periods January 2, 1988 forward.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Claimant's sister, Julie Pesicka, also worked at defendant 
 
            employer and testified at the hearing.  Julie's testimony on 
 
            the percentage of bodily use lost by claimant was excluded 
 
            following an objection by defendants' counsel.  (Tr., p. 38)
 
            
 
                            CONCLUSIONS OF LAW
 
            
 
            It is noted that claimant's original notice and petition 
 
            filed in this matter alleges a disability to claimant's 
 
            upper extremities, neck, and shoulder.  The petition also 
 
            alleges a wide possibility of injury dates.
 
            Due process, in agency adjudications, requires that a party 
 
            be informed of the issue involved in order to prevent 
 
            surprise at hearing and allow the party reasonable 
 
            opportunity to prepare relative to the issue.  The test is 
 
            one of fundamental fairness, not whether the notice meets 
 
            technical rules of common law pleading.  Opposing parties 
 
            must be sufficiently appraised of the possibility that an 
 
            issue will arise that they can adequately prepare regarding 
 
            that issue in order to justify its inclusion at hearing 
 
            where another party has not formally plead it.  Oscar Mayer 
 
            Foods Corp. v. Tasler, 483 N.W.2d 824 (Iowa 1992).
 
               We have observed that with respect to agency 
 
            adjudications, due process requires that a party "be 
 
            informed somehow of the issue involved in order to prevent 
 
            surprise at the hearing and allow an opportunity to 
 
            prepare....  The test is fundamental fairness, not whether 
 
            the notice meets technical rules of common law pleading."  
 
            (Citation omitted)  See also Coghlan v. Quinn Wire & Iron 
 
            Works, 164 N.W.2d 848, 850 (Iowa 1969) ("An application for 
 
            arbitration is not a formal pleading and is not to be judged 
 
            by the technical rules of pleading.")
 
            
 
            Tasler, 483 N.W.2d 824 at 828.
 
            Therefore, this decision and discussion will be limited to 
 
            claimant's entitlement to benefits resulting from an alleged 
 
            disability to her upper extremities, neck, and shoulder.  No 
 
            decision to entitlement to benefits, if any, for alleged 
 
            injuries to claimant's foot or lower back will be a part of 
 
            this case.  Limiting the issues of entitlement to benefits 
 
            as is being done is particularly appropriate given the facts 
 
            that claimant has alleged an injury date from 1984 when 
 
            claimant was first employed and that there is insufficient 
 
            medical evidence in the record to form any conclusion 
 
            whether there is a causal relationship between claimant's 
 
            low back problems and her work.
 
            It should also be noted that this decision should not be 
 
            used as precedent which would indicate this agency's 
 
            willingness to painstakingly sort through volumes of 
 
            evidence because the parties are unwilling or unable to 
 
            adequately prepare and present a case for resolution.
 
            The first issue to be resolved is the date of injury to 
 
            claimant's upper extremities, neck, and shoulder.  The Iowa 
 
            Supreme Court has recognized that this agency has a 
 
            "substantial amount of latitude in making a determination 
 
            regarding the date of manifestation since this is an 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            inherently fact-based determination."  Tasler, 483 N.W.2d 
 
            824 at 829.
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An occupational 
 
            disease covered by chapter 85A is specifically excluded from 
 
            the definition of personal injury.  Iowa Code section 
 
            85.61(5); Iowa Code section 85A.8.
 
            
 
                 When the disability develops gradually over a period of 
 
            time, the "cumulative injury rule" applies.  For time 
 
            limitation purposes, the compensable injury is held to occur 
 
            when because of pain or physical disability, the claimant 
 
            can no longer work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).
 
 
 
                 In this case the injury date to claimant's upper 
 
            extremities, neck, and shoulder is August 31, 1987.  It was 
 
            at this point in time that claimant was unable to work and 
 
            regularly and continuously missed work because of shoulder 
 
            complaints.
 
            
 
                 The next issue to be resolved is whether claimant is 
 
            entitled to any weekly benefits.  The party who would suffer 
 
            loss if an issue were not established has the burden of 
 
            proving that issue by a preponderance of the evidence.  Iowa 
 
            R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 Claimant has seen many medical care providers over an 
 
            extended period of time.  Only one of those, Dr. DeBartolo, 
 
            thought that claimant might have a permanent functional 
 
            disability.  His opinion was inconsistent with the opinions 
 
            of Dr. McCoy and Dr. Donohue.  Dr. DeBartolo's opinion will 
 
            be given little weight.  His opinion as a one-time 
 
            evaluating physician was inconsistent with other medical 
 
            evidence and the opinions of two treating physicians, Drs. 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            McCoy and Donohue.  Also, Dr. DeBartolo assigned a 
 
            functional impairment rating despite the fact that it was 
 
            based upon subjective complaints which were not supported by 
 
            objective findings such as nerve conduction studies and 
 
            EMGs.  It is also worth noting that there was a consistent 
 
            pattern of claimant's improvement through multiple physical 
 
            therapy episodes.  It is further worth noting that the 
 
            record contains numerous references to diagnoses relating to 
 
            muscle strain or muscle related symptoms.  Claimant has not 
 
            proved that her work has caused a permanent disability to 
 
            her neck, shoulder, or left arm.
 
            
 
                 The next issue to be resolved is the extent to which 
 
            claimant is entitled to temporary benefits for the time she 
 
            was off work.
 
            
 
                 At the time claimant missed work following her August 
 
            31, 1987 injury there was no statutory authority for 
 
            granting weekly benefits for time missed from work to attend 
 
            doctor's appointments.  See e.g., Ellingson v. Fleetguard, 
 
            Inc., (Appeal Decision June 30, 1994, file nos. 
 
            805094/1015070)  The legislature in enacting 1994 Iowa Acts, 
 
            Senate File 2245, section 2 which provides for payment of 
 
            wages for time lost when receiving medical treatment in 
 
            certain situations has clearly indicated that prior to the 
 
            enactment of Senate File 2245 there was no statutory 
 
            authority for payment of benefits for the time claimant 
 
            missed work for medical treatment.  Claimant is not entitled 
 
            to benefits for time lost to receive medical treatment.
 
            
 
                 Claimant is entitled to temporary partial disability 
 
            benefits pursuant to Iowa Code section 85.33(2) when she did 
 
            not return to full duty but she was able to perform work 
 
            consistent with her disabilities.  Claimant in her appeal 
 
            brief alleges certain periods of time following her injury 
 
            of August 31, 1987 would entitle her to temporary partial 
 
            disability benefits.  As discussed in the findings of fact 
 
            above, claimant has been paid temporary partial disability 
 
            benefits in excess of the temporary partial disability 
 
            benefits.  (Claimant alleged entitlement to 23.572 weeks and 
 
            has been paid 24.286 weeks for temporary partial 
 
            disability.)
 
            
 
                 Claimant also seeks temporary total disability 
 
            benefits.  Claimant is entitled to temporary total 
 
            disability benefits because of her left shoulder and left 
 
            arm disability following her August 31, 1987 injury for the 
 
            time she was unable to work because of this injury.
 
            
 
                 Claimant is not entitled to temporary disability 
 
            benefits under the decision of this case for the following:  
 
            November 10-15, 1987 and December 8-14, 1988 because 
 
            claimant missed work for reasons other than her left 
 
            shoulder problems; August 17-18, 1988 because Dr. Nelson 
 
            returned claimant to work on August 17, 1988; November 9-23, 
 
            1989 because Dr. Crane was unsure of the etiology of 
 
            claimant's acute cervical strain; and February 22-25, 1990 
 
            because on February 21, 1990 Dr. Donohue released claimant 
 
            to return to work.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
                 Claimant is entitled to additional unpaid temporary 
 
            total disability benefits under the decision of this case 
 
            for the following:  September 22, 1987 through October 11, 
 
            1987 because claimant was not returned to work until October 
 
            12, 1987 by Dr. Boarini (Jt. Ex. I, p. 100) and May 26-30, 
 
            1988 because Dr. Nelson did not return claimant to work 
 
            until May 31, 1988.  Claimant's entitlement to additional 
 
            temporary total disability benefits.
 
            
 
                Due              Previously paid              Additional
 
            
 
            Aug. 31, 1987 -      Aug. 31, 1987 -            Sept. 22, 
 
            1987 - 
 
              Oct. 11, 1987        Sept. 21, 1987             Oct. 11, 
 
            1987
 
            
 
            Feb. 11, 1988 -      Feb. 11, 1988 -            May 26, 1988 
 
            -
 
              May 30, 1988         May 25, 1988               May 30, 
 
            1988
 
            
 
            As stated above claimant was paid excess temporary total 
 
            disability benefits for the following:  August 17-18, 1988; 
 
            November 9-23, 1989; and February 22-25, 1990.  In addition, 
 
            as will be noted below the rate of compensation for 
 
            claimant's August 31, 1987 injury is $269.46.  During the 
 
            time periods claimant was paid excess benefits, she was paid 
 
            more than the appropriate rate.  Claimant was also 
 
            voluntarily paid temporary total disability benefits at a 
 
            rate exceeding the alleged rate of $269.46.  While claimant 
 
            is owed an additional 25 days of benefits she has been paid 
 
            excess benefits of 19 days.  She has been paid benefits at a 
 
            rate that exceeds the appropriate for the periods August 31 
 
            through September 21, 1987 ($276.87); February 11 through 
 
            May 25, 1988 ($276.88); April 6-23, 1989 ($286.10); and 
 
            November 10, 1989 through February 25, 1990 ($286.10).  In 
 
            addition claimant was paid benefits November 10-15, 1987 and 
 
            December 8-14, 1988 which are not payable under this case 
 
            and may or may not represent further overpayment.  Claimant 
 
            has not proved that her entitlement to additional benefits 
 
            under this decision is not offset by the amount she has been 
 
            overpaid, therefore, claimant has not proved entitlement to 
 
            additional temporary total disability benefits.
 
            Because claimant is not entitled to any weekly benefits in 
 
            excess to what has already been paid, two of the issues 
 
            claimant has raised are moot.  Those issues are:  whether 
 
            claimant is entitled to interest and the rate of 
 
            compensation.  It is noted that interest is to be calculated 
 
            on any weekly benefits not paid when due based on Iowa Code 
 
            section 85.30 and Farmer's Elevator Co. v. Manning, 286 
 
            N.W.2d 174 (Iowa 1979).  Parties should first determine 
 
            whether there is a dispute about the interest amount owed, 
 
            and then if an agreement cannot be reached, the aggrieved 
 
            party can seek relief from the industrial commissioner.
 
            It is also noted that claimant advocates that the 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            appropriate rate is $269.46 for an injury date of August 31, 
 
            1987 (see p. 14 of claimant's appeal brief) but does not 
 
            provide evidence to support this rate.  The rate of 
 
            compensation is determined pursuant to Iowa Code section 
 
            85.36.  Parties should first determine whether there is a 
 
            dispute about the rate to be paid and if agreement cannot be 
 
            reach, the aggrieved party can seek relief from the 
 
            industrial commissioner.
 
            Claimant seeks to recover a penalty under the fourth 
 
            unnumbered paragraph of Iowa Code section 86.13.  Section 
 
            86.13 permits an award of up to 50 percent of the amount of 
 
            benefits delayed or denied if a delay in commencement or 
 
            termination of benefits occurs without reasonable or 
 
            probable cause or excuse.  The standard for evaluating the 
 
            reasonableness of defendants' delay in commencement or 
 
            termination is whether the claim is fairly debatable.  Where 
 
            a claim is shown to be fairly debatable, defendants do not 
 
            act unreasonably in denying payment.  Covia v. Robinson, 507 
 
            N.W.2d 411 (Iowa 1993).
 
            In this case claimant is entitled to no permanent disability 
 
            benefits, no benefits for time lost for medical treatment, 
 
            no additional temporary benefits and has been paid temporary 
 
            benefits over a long period of time.  Delays, if any, in 
 
            payments of benefits have been minimal.  There is clearly no 
 
            statutory authority for assessment of penalty on interest.  
 
            Claimant has not proved entitlement to penalty.
 
            The next issue raised by claimant is whether testimony from 
 
            claimant's sister as a lay witness regarding claimant's 
 
            percentage of bodily use lost was properly excluded.  As 
 
            discussed above claimant has not proved she has a permanent 
 
            disability as a result of her August 31, 1987 work injury.  
 
            Therefore, the issue is moot.  Even if the issue were not 
 
            moot, the testimony would not be admitted.  The witness is 
 
            not qualified to give a medical opinion.  Also, the 
 
            industrial commissioner ultimately decides the extent of 
 
            disability and a witness may not invade the province of the 
 
            industrial commissioner.  Furthermore, rule 343 IAC 2.4 does 
 
            not provide for lay testimony by relatives.
 
            The last issue to be resolved is how costs are to be taxed 
 
            in this matter.  Iowa Code section 86.40 provides:  "All 
 
            costs incurred in the hearing before the commissioner shall 
 
            be taxed in the discretion of the commissioner."  Rule 343 
 
            IAC 4.33 provides in relevant part:  "Costs are to be 
 
            assessed at the discretion of the deputy commissioner or 
 
            industrial commissioner hearing the case unless otherwise 
 
            required by the rules of civil procedure governing 
 
            discovery."  Claimant has alleged injuries covering a period 
 
            of approximately six years, was unsuccessful in getting 
 
            additional benefits in the arbitration decision and has been 
 
            unsuccessful on none of the issues on appeal.  The parties 
 
            submitted a plethora of evidence that required this agency 
 
            to painstakingly, if not needlessly, review the evidence on 
 
            issues that could have been stipulated.  It is appropriate 
 
            that each party pay the costs of the hearing and for the 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            claimant to pay the costs of the appeal.
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                     ORDER
 
            
 
            THEREFORE, it is ordered:
 
            That claimant shall take nothing from these proceedings.
 
            That claimant shall pay the costs of the appeal including 
 
            the transcription of the hearing.  All other costs shall be 
 
            paid by the party incurring the cost.
 
            That defendants are to file a first report of injury within 
 
            ten (10) days of the date of this decision.
 
            Signed and filed this ____ day of July, 1994.
 
            
 
            
 
            
 
                                       ________________________________
 
                                       BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark S. Soldat
 
            Attorney at Law
 
            714 East State St.
 
            Algona, Iowa 50511
 
            
 
            Mr. Paul C. Thune
 
            Attorney at Law
 
            P.O. Box 9130
 
            Des Moines, Iowa 50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803; 5-2907
 
                                                 Filed July 26, 1994
 
                                                 Byron K. Orton
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            THERESA PESCIKA,      
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 946005
 
            SNAP-ON TOOLS CORPORATION,      
 
                                                    R E M A N D
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            ROYAL INSURANCE COMPANY,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            1803
 
            
 
            Claimant was not entitled to permanent partial disability 
 
            benefits.  Nevertheless, claimant had experienced chronic 
 
            pain and muscle soreness in many parts of her body.  She was 
 
            motivated and she had returned to work on numerous 
 
            occasions.  The treating physicians, Dr. Donohue and Dr. 
 
            McCoy, were accorded great weight.  They could find no 
 
            permanent functional impairments.  The case lacked objective 
 
            findings of any permanency.  Claimant had returned to work 
 
            in January of 1991.  She was released to work without any 
 
            restrictions.  She worked until her layoff.  The layoff was 
 
            unrelated to her work injuries.  Injury date was determined 
 
            to be when claimant was required to miss work and 
 
            consistently missed work after that date.
 
            
 
            5-2907
 
            Costs are assessed at the discretion of the industrial 
 
            commissioner.  Claimant was unsuccessful on any issue on 
 
            appeal and was responsible for all costs of the appeal.  
 
            Parties did not reach any meaningful stipulations as it 
 
            related to factual disputes on when and if benefits were 
 
            paid and the rate of compensation.  Instead the parties 
 
            submitted extensive evidence the agency was required to 
 
            review.  All other costs were assessed the party which 
 
            incurred the cost.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RANDY D. CARLE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :       File Nos. 946008
 
            vs.                           :                 946009
 
                                          :
 
            SHELLER-GLOBE CORPORATION     :     A R B I T R A T I O N
 
            n/k/a UNITED TECHNOLOGIES     :
 
            CORPORATION,                  :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 These are proceedings in arbitration upon the petition 
 
            of claimant, Randy D. Carle, against his employer, 
 
            Sheller-Globe Corporation n/k/a United Technologies, 
 
            self-insured employer, defendant.  The cases were heard on 
 
            November 7, 1991, in Burlington, Iowa at the Des Moines 
 
            County Courthouse.  The record consists of the testimony of 
 
            claimant.  The record also consists of the testimonies of 
 
            the supervisor in the Rotocast Department, Martin Moretimer; 
 
            claimant's spouse, Doris Carle; and the union president for 
 
            URW Local 444, Jerry A. Kearns.  Additionally, the record 
 
            consists of claimant's exhibits 1-5, 7-49, 51-100 and 
 
            defendant's exhibits A-1, A-2, B, C, D and E.  Many of the 
 
            exhibits offered were impossible to read (ie. exhibit 76).
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:  1) whether claimant 
 
            sustained an injury on August 5, 1988, which arose out of 
 
            and in the course of his employment; 2) whether there is a 
 
            causal connection between the alleged work injury of August 
 
            5, 1988 and any temporary and/or permanent disability; 3) 
 
            whether there is a causal connection between the work injury 
 
            of October 12, 1989 and any permanent disability; 4) whether 
 
            claimant is entitled to any temporary or permanent 
 
            disability benefits because of the August 5, 1988 alleged 
 
            injury; 5) whether claimant is entitled to any temporary or 
 
            permanent disability benefits because of the October 12, 
 
            1989 injury; and, 6) whether claimant is entitled to any med
 
            ical benefits pursuant to the alleged injury of August 5, 
 
            1988 or the injury of October 12, 1989.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 Claimant was hired by defendant on August 6, 1984.  He 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            was assigned the task of a relief person in Department 77, 
 
            known as the main rotocraft area.  The work required manual 
 
            labor, including lifting 34 pound dash pads.
 
            
 
                 Claimant described his health as good until he 
 
            developed a non-malignant tumor in his abdominal-sternum 
 
            area.  The tumor was unrelated to his work.  The tumor was 
 
            surgically removed on September 23, 1985.  Claimant was 
 
            released to return to work on November 1, 1985.  Claimant 
 
            continued working until January 7, 1986, when he was removed 
 
            from work because of problems subsequent to his surgery.  
 
            According to the exhibits, claimant was returned to work 
 
            without restrictions on May 24, 1988.  At that time claimant 
 
            was assigned the task of a trimmer.  His duties included 
 
            taking covers from a rack, placing them on a table and 
 
            trimming off excess material.  Claimant lifted from 5 to 20 
 
            pounds and he was able to perform his job.
 
            
 
                 As of August 1, 1988, claimant was assigned the status 
 
            of a packer.  He was placed in Department 78.  His duties 
 
            required manual labor since he was given the jobs of making 
 
            boxes and placing finished products into the boxes.
 
            
 
                 On August 5, 1988, claimant testified he was working in 
 
            his assigned area.  Around 10:30 a.m., claimant stated he 
 
            was lifting 8 to 10 boxes.  He was using one arm to pick up 
 
            the boxes and the other arm to pull the boxes.  He felt a 
 
            pop in his sternum - abdominal area.  Claimant testified he 
 
            reported the incident to the foreman, Steve Bolling, but 
 
            that claimant was able to complete his assigned tasks.  
 
            Claimant testified he did not report the incident to first 
 
            aid.
 
            
 
                 Next, claimant stated he returned to work on the 
 
            following Monday, and he worked until noon but he passed out 
 
            in the warehouse.  He saw the company physician, Robert 
 
            Kemp, M.D., the next day.  Eventually, claimant returned to 
 
            light duty in the first aid room.  He handled papers, 
 
            cleaned, trimmed and painted.  Claimant testified his 
 
            symptoms did not abate.  He worked through February 20, 
 
            1989, when claimant requested and received a leave of 
 
            absence.  Claimant remained on that leave of absence until 
 
            September of 1989, when he again returned to work.
 
            
 
                 When claimant returned to work he was placed on the 
 
            inject machine and he was acting as a relief person.  On 
 
            October 12, 1989, claimant was struck in the back with a 
 
            pallet which was loaded on a moving fork lift truck.  
 
            Claimant was removed from work for several days.  X-rays 
 
            revealed no abnormality.  Claimant returned to work on the 
 
            ram line and worked with some problems.
 
            
 
                 On June 25, 1990, claimant was driving to work in his 
 
            personal vehicle when he struck a woman on a bicycle.  The 
 
            bicycle rider was struck by the truck mirror.  The mirror 
 
            shattered and cut claimant on the arm.  Claimant did not 
 
            seek medical attention for the accident.  Claimant never 
 
            returned to work after his motor vehicle accident.  
 
            Apparently, claimant was "shook up" after the accident.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Repeatedly, claimant described his typical day as 
 
            watching TV, smoking cigarettes and drinking 10 cups of 
 
            coffee.  Claimant is currently capable of driving a Bronco 
 
            with manual transmission despite the fact claimant uses a 
 
            cane to assist him in walking.  Claimant engages in little 
 
            physical exercise.
 
            
 
                 Since the August 8, 1988 injury date, claimant has made 
 
            numerous visits to numerous medical practitioners.  Exhibit 
 
            99 is an especially helpful exhibit.  It details, in 
 
            chronological order, the various medical appointments which 
 
            claimant has had.  The exhibit lists the following visits:
 
            
 
            
 
                                1988      12 visits
 
                                1989      57 visits
 
                                1990      69 visits
 
                      up to 4/1/1991      11 visits including a two week 
 
            stay                                  in a VA hospital
 
            
 
                 The varied practitioners include, among others, the 
 
            company physician, Robert Kemp, M.D.; a general surgeon; an 
 
            orthopedic surgeon; a neurologist; a specialist in 
 
            rehabilitation medicine; physical and occupational 
 
            therapists; and, several chiropractors.  The medical record 
 
            is voluminous.
 
            
 
                                conclusions of law
 
            
 
                 The first issue to address is with respect to file 
 
            number 946008.  Claimant alleges that he has sustained a 
 
            work related injury to his sternum, neck and thoracic back 
 
            area when he was lifting boxes on the morning of August 5, 
 
            1988.
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 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.  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, 417 (Iowa 1986); 
 
            McClure v. Union, et al., Counties, 188 N.W.2d 283, 287 
 
            (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, 354 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 
 
            297 (Iowa 1974).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Defendant denies an injury occurred on August 5, 1988, 
 
            which arose out of and in the course of claimant's 
 
            employment.  Furthermore, defendant states that the injury, 
 
            if it did occur, was not causally related to claimant's 
 
            alleged condition.
 
            
 
                 There is no question claimant had a tumor removed from 
 
            his sternum/abdominal area in 1985.  The tumor was totally 
 
            unrelated to any work injury.  Claimant was eventually 
 
            released to return to work by the company physician, several 
 
            years after the tumor was removed.  Claimant worked nearly 
 
            two and one-half months without incident.  Then on August 5, 
 
            1988, claimant heard or felt a popping in the area of his 
 
            sternum.  At the time he was lifting boxes at work.  
 
            Subsequent to the incident, claimant sought medical 
 
            attention for the pain he was experiencing.  Keith Riggins, 
 
            M.D., an orthopedic surgeon, diagnosed claimant's condition 
 
            as a fractured sternum (Exhibit 11).  Later, Dr. Riggins 
 
            modified the diagnosis to a strained rib cage.  Dr. Riggins 
 
            explained:
 
            
 
                 Recommendation:  It has now been two and one-half 
 
                 years since the patient underwent his previous 
 
                 surgical treatment.  It is my opinion that the 
 
                 mass and excision thereof weakened attachment of 
 
                 the abdominal muscles to the chest wall and that 
 
                 the patient will remain symptomatic if he engages 
 
                 in activities which require heavy lifting.  It is 
 
                 recommended that weight lifted be limited to 
 
                 twenty (20) pounds maximum with frequent lifting 
 
                 and or carrying of objects up to ten (10) pounds.  
 
                 Work duty sheet is completed and returned to the 
 
                 patient.  No return visits are required.
 
            
 
            (Ex. 11)
 
            
 
                 Claimant was placed on light duty by the orthopedic 
 
            surgeon.  He continued to have symptoms.  Eventually 
 
            claimant was referred to John H. Lemmer, M.D., a thoracic 
 
            surgeon at the University of Iowa Hospitals and Clinics.  In 
 
            his report of March 6, 1989, Dr. Lemmer opined:
 
            
 
                 Mr. Carle is anxious for me to make a 
 
                 determination as to whether or not his problem is 
 
                 work-related.  However, I am unable to make that 
 
                 determination.  Clearly this patient did 
 
                 previously undergo resection of a benign abdominal 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 wall tumor at a region somewhat inferior to where 
 
                 his current pain is.  He provides the history of 
 
                 having the sudden onset of pain while lifting a 
 
                 heavy object at work in August 1988.  As I told 
 
                 the patient, however, I have not previously seen a 
 
                 sternal fracture due to lifting but rather these 
 
                 are usually associated with blunt trauma.  It is 
 
                 therefore not possible for me to determine the 
 
                 work-related nature of his abnormality.  Mr. Carle 
 
                 is going to think about my suggestion regarding 
 
                 excision of the distal third of his sternum and 
 
                 contact my office.
 
            
 
            (Ex. 20, page 25)
 
            
 
                 Claimant was next examined by Ansar H. Ansari, M.D., 
 
            the surgeon who previously removed claimant's tumor.  Dr. 
 
            Ansari was unable to causally relate claimant's condition to 
 
            an alleged injury on August 5, 1988.  Likewise, Walid M. 
 
            Hafez, M.D., could find no "specific diagnosis that could 
 
            explain the patient's `pain'." (Ex. 28).  He explained 
 
            claimant's condition as "chronic pain."
 
            
 
                 It appears to the undersigned deputy that while 
 
            claimant has experienced chronic pain in the area of his 
 
            sternum and rib cage, claimant has been unable to establish 
 
            that his condition has a causal relationship to a 
 
            work-related incident allegedly occurring on August 5, 1988.  
 
            Claimant's sternal pain leaves even the best experts with no 
 
            explanation as to the cause.  No physician has stated that 
 
            the sternal pain is the direct result of any work injury.  
 
            Claimant has not met his burden of proof.  Claimant takes 
 
            nothing under file number 946008.
 
            
 
                 The next issues deal with file number 946009.  
 
            Defendant has stipulated that claimant has sustained a work 
 
            related injury which occurred on October 12, 1989.  
 
            Defendant also admits claimant has sustained a temporary 
 
            disability as a result of the October 12, 1989 injury which 
 
            involves an injury to the low back.  Defendant denies 
 
            claimant has sustained any permanent disability.
 
            
 
                 Claimant's injury of October 12, 1989, was less than 
 
            one month after he returned to work from another medical 
 
            leave of absence.  He sought medical attention at the Keokuk 
 
            Area Hospital.  The attending physician advised claimant to 
 
            remain off work until he had been released by the corporate 
 
            physician.
 
            
 
                 Claimant saw Dr. Kemp on October 17, 1989.  The company 
 
            physician advised claimant to return to work on October 18, 
 
            1989, but to remain on light duty.  Dr. Kemp noted moderate 
 
            muscle spasms and a limited range of motion.  Claimant 
 
            returned to work on October 19, 1989.
 
            
 
                 Claimant also sought medical attention from his own 
 
            chiropractor, Dan A. Mefford, D.C.  The chiropractor 
 
            released claimant to return to work on October 18, 1989.  
 
            Claimant followed the instructions of the company physician.  
 
            Claimant returned to work on October 19, 1989.  Dr. Kemp 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            opined that claimant's condition was causally related to the 
 
            work injury of October 12, 1989 (Ex. 91, p. 149).
 
            
 
                 Dr. Mefford had already been treating claimant for 
 
            strain on the musculoskeletal system allegedly relating back 
 
            to the August 5, 1988 date.  It is virtually impossible to 
 
            determine when claimant first voiced complaints of neck and 
 
            back pain to any medical practitioner.  Suffice it to say, 
 
            there have been back complaints which preexisted claimant's 
 
            work injury on October 12, 1989.
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 Claimant's condition on October 12, 1989, was 
 
            aggravated by the trauma he sustained to his low back.  
 
            Claimant described his pain as different than the pain he 
 
            had experienced previously to his October 12, 1989 injury.  
 
            This time the pain was lower back pain.  Before he had 
 
            experienced thoracic pain and neck pain.  Claimant testified 
 
            his pain worsened but he could not miss more than two days 
 
            of work every month or else he would be disciplined.  
 
            Consequently, claimant worked from October 19, 1989 to June 
 
            25, 1990.  He was not off work because of his low back 
 
            condition.
 
            
 
                 On June 25, 1990, the aforementioned Bronco-bicycle 
 
            accident took place.  According to claimant's deposition he 
 
            was shook up so much he did not return to work.  In fact, 
 
            since that date, claimant has not worked anywhere.  The 
 
            record does not establish that claimant was off work as of 
 
            June 25, 1990, because of his back condition.  It is unclear 
 
            why claimant chooses to spend his days watching TV, smoking 
 
            cigarettes and drinking 10 cups of coffee per day.  
 
            Nevertheless, claimant's refusal to return to work is his 
 
            voluntary decision.  No physician has mandated that he quit 
 
            his position.  Rather, two medical practitioners have 
 
            returned claimant to work.
 
            
 
                 Claimant has met his burden of proof that he is 
 
            entitled to some temporary disability/healing period 
 
            benefits.  He is entitled to weekly benefits for:  October 
 
            12, 1989 through October 18, 1989 and from February 27, 1991 
 
            through April 26, 1991, when claimant was participating in 
 
            the program at the VA Hospital in Columbia, Missouri.  He is 
 
            to be paid at the stipulated rate of $281.44 per week.
 
            
 
                 Claimant has also proven that he has a permanent 
 
            partial disability as a result of the October 12, 1989 
 
            injury which renders him industrially disabled.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Service Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Peterson v. 
 
            Truck Haven Cafe, Inc., (Appeal Decision, February 28, 
 
            1985); Christensen v. Hagen, Inc., (Appeal Decision, March 
 
            26, 1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 Only one chiropractor has rated claimant as having a 
 
            functional impairment.  Terry W. Shaw, D.C., has opined that 
 
            claimant has a 28 percent functional impairment rating.  No 
 
            physician has rated claimant as having a functional 
 
            impairment.  However, several physicians have placed 
 
            claimant on permanent restrictions.  Felix M. Martin, M.D., 
 
            has restricted claimant from lifting more than 50 pounds.  
 
            The physician has advised claimant to change jobs (Ex. 68, 
 
            p. 96).  Dr. Martin has also recommended a brace.  Dr. Kemp 
 
            has recommended light duty for claimant.
 
            
 
                 Dr. Shaw has placed permanent restrictions on claimant.  
 
            The chiropractor has restricted claimant from lifting more 
 
            than 40 pounds infrequently and from repetitively lifting 20 
 
            pounds.  Claimant is also restricted from prolonged sitting.
 
            
 
                 Randall D. Smith, M.D., has related claimant's 
 
            condition to his work.  The physician in rehabilitation 
 
            services at the VA has restricted claimant from involved 
 
            lifting, bending and stooping (Ex. 98, p. 164).   The 
 
            medical personnel have prescribed a cane for claimant.
 
            
 
                 It is the decision of the undersigned that claimant is 
 
            functionally impaired to a minimal degree.  Likewise, 
 
            claimant has sustained an industrial disability.
 
            
 
                 Claimant's earning capacity has been reduced since he 
 
            can no longer engage in heavy lifting or in prolonged 
 
            bending and stooping.  Therefore, he is precluded from doing 
 
            heavy manual labor.  Claimant is not to engage in long 
 
            periods of sitting.  Office jobs are out of the question.
 
            
 
                 It is claimant's decision to leave the employ of 
 
            defendant.  The defendant has not terminated claimant nor 
 
            has defendant refused to accommodate claimant.  No physician 
 
            has stated that claimant is incapable of working.  The 
 
            situation is quite the contrary.  Claimant has been told to 
 
            return to some type of gainful employment.  This deputy 
 
            agrees wholeheartedly!  Claimant is a very young man.  He is 
 
            only 30 years old.  He has many years ahead of him.  He is 
 
            capable of working.
 
            
 
                 Claimant is anything but motivated to return to work.  
 
            He has done very little to rehabilitate himself.  He refuses 
 
            home therapy and walking for reconditioning.  He has not 
 
            even attempted to look for work.  He is content to sit at 
 
            home and watch television.  Claimant shows no desire to 
 
            work.  His past employment history corroborates this 
 
            deputy's determination that claimant is totally unmotivated 
 
            to become a productive worker in this society.  This is too 
 
            bad as claimant is a very likeable person.  He has much to 
 
            offer.  He needs to consider some form of counseling.
 
            
 
                 Claimant has a GED.  He shows no desire to engage in 
 
            additional training, however.  Again, claimant's lack of 
 
            motivation is an inhibiting factor.
 
            
 
                 After reviewing all of the relevant evidence, it is 
 
            this deputy's decision that claimant is entitled to a 10 
 
            percent permanent partial disability at the stipulated rate 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            of $281.44 per week.  The benefits are to commence from 
 
            April 27, 1991, the date on which claimant was released from 
 
            the VA Hospital.
 
            
 
                 The next issue to address is whether claimant is 
 
            entitled to medical benefits under section 85.27.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.; Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review decision 1975).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise Constr. 
 
            Specialists, Inc., file number 850096 (Appeal Decision 
 
            1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa App. 1983).
 
            
 
                 Claimant has testified that he owes $20,000.00 in 
 
            medical expenditures.  However, the undersigned has been 
 
            presented with no documentation to substantiate the 
 
            $20,000.00 figure.  Therefore, claimant is entitled to 
 
            medical expenses as long as the expenditures are causally 
 
            related to the October 12, 1989 injury and as long as they 
 
            are reasonable and necessary as well.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 With reference to file number 946008, claimant takes 
 
            nothing from these proceedings. 
 
            
 
                 With respect to file number 946009, defendant is to pay 
 
            unto claimant fifty (50) weeks of permanent partial 
 
            disability benefits at the stipulated rate of two hundred 
 
            eight-one and 44/l00 dollars ($281.44) per week commencing 
 
            on April 27, 1991.
 
            
 
                 With respect to file number 946009, defendant is to pay 
 
            unto claimant nine point four-two-nine (9.429) weeks of 
 
            healing period benefits at the stipulated rate of two 
 
            hundred eighty-one and 44/l00 dollars ($281.44) per week for 
 
            the period from October 12, 1989 through October 18, 1989 
 
            and from February 27, 1991 through April 26, 1991.
 
            
 
                 With respect to file number 946009, defendant is to pay 
 
            reasonable and necessary medical costs which are causally 
 
            related to the October 12, 1989 injury date.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 Defendant shall take credit for benefits previously 
 
            paid claimant.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Costs are taxed to defendant pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Defendant shall file claim activity reports as 
 
            requested by this division pursuant to rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Max Schott
 
            Mr. Robert W. Pratt
 
            Attorneys at Law
 
            6959 University Ave
 
            Des Moines  IA  50311-1540
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St
 
            Suite 16
 
            Des Moines  IA  50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed December 20, 1991
 
                                               MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RANDY D. CARLE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :       File Nos. 946008
 
            vs.                           :                 946009
 
                                          :
 
            SHELLER-GLOBE CORPORATION     :     A R B I T R A T I O N
 
            n/k/a UNITED TECHNOLOGIES     :
 
            CORPORATION,                  :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Claimant has met his burden of proof that he has sustained a 
 
            10 percent permanent partial disability to the body as a 
 
            whole because of a work related injury on October 12, 1989.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed December 20, 1991
 
                                               MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RANDY D. CARLE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :       File Nos. 946008
 
            vs.                           :                 946009
 
                                          :
 
            SHELLER-GLOBE CORPORATION     :     A R B I T R A T I O N
 
            n/k/a UNITED TECHNOLOGIES     :
 
            CORPORATION,                  :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Claimant has met his burden of proof that he has sustained a 
 
            10 percent permanent partial disability to the body as a 
 
            whole because of a work related injury on October 12, 1989.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         RANDY D. CARLE,               :
 
                                       :
 
              Claimant,                :
 
                                       :       File Nos. 946008
 
         vs.                           :                 946009
 
                                       :
 
         SHELLER-GLOBE CORPORATION     :           N U N C
 
         n/k/a UNITED TECHNOLOGIES     :
 
         CORPORATION,                  :            P R O
 
                                       :
 
              Employer,                :           T U N C
 
              Self-Insured,            :
 
              Defendant.               :          O R D E R
 
         ___________________________________________________________
 
         
 
         Due to the unclear handwriting on the prehearing report, this 
 
         deputy mistakenly read the stipulated rate as $281.44.  The 
 
         correct stipulated rate is $281.94.
 
         THEREFORE, IT IS ORDERED:
 
         The corrected stipulated weekly rate is two hundred eighty-one 
 
         and 94/l00 dollars ($281.94).  All other portions of the decision 
 
         remain in effect.
 
         
 
         
 
              Signed and filed this ____ day of December, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Max Schott
 
         Mr. Robert W. Pratt
 
         Attorneys at Law
 
         6959 University Ave
 
         Des Moines  IA  50311-1540
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St
 
         Suite 16
 
         Des Moines  IA  50312
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RHONDA KNOPP,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :    File Nos. 911271/930441
 
                                          :              946018/946019
 
            WILLIAM C. BROWN COMPANY,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            KEMPER INSURANCE and          :
 
            CONTINENTAL INSURANCE CO.,    :
 
            c/o CLAS,                     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant, Rhonda Knopp, asserts that she suffered 
 
            work-related back injuries on July 30, 1988 (946018), 
 
            December 13, 1988 (911271), June 30, 1989 (946019) and 
 
            September 13, 1989 (930441).  She was employed by William C. 
 
            Brown Company ("Brown"), a publishing concern, on each date.  
 
            Defendant employer was insured by Continental Insurance 
 
            Company with respect to the first three injury dates, Kemper 
 
            Insurance Company with respect to the fourth.  Ms. Knopp now 
 
            seeks benefits under the Iowa Workers' Compensation Act from 
 
            that employer and those carriers.
 
            
 
                 This cause came on for hearing in Waterloo, Iowa on 
 
            June 18, 1992.  Claimant testified personally.  Joint 
 
            exhibits 1-11, 19-30, 1A and 2A, claimant's exhibits A-1, A, 
 
            B, C, D, E, H, and I and defendants' exhibit's X were 
 
            received into evidence.  Claimant's exhibits F and G were 
 
            taken under advisement as to defendants' objection; the 
 
            objection is now overruled and those exhibits are received.  
 
            The depositions of claimant and Drs. Richard Neiman and 
 
            David Field are in evidence.
 
            
 
                                      ISSUES
 
            
 
                 In file numbers 946018, 911271 and 946019, claimant, W. 
 
            C. Brown Company and Continental Insurance Company have 
 
            stipulated that claimant sustained injuries on each date 
 
            arising out of and in the course of employment, that all 
 
            temporary total or healing period benefits prior to 
 
            September 13, 1989 have been paid, that any permanent 
 
            disability is an industrial disability, to the background 
 
            facts necessary to calculate rate, and that medical benefits 
 
            are no longer in dispute with respect to services rendered 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            prior to September 13, 1989.
 
            
 
                 Issues presented to resolution in those files include:
 
            
 
                 1.  Whether each work injury caused temporary 
 
            disability subsequent to September 13, 1989 or permanent 
 
            disability;
 
            
 
                 2.  The extent of temporary disability subsequent to 
 
            September 13, 1989 and the extent of permanent disability;
 
            
 
                 3.  Whether claimant is entitled to penalty benefits 
 
            under Iowa Code section 86.13.
 
            
 
                 In file number 930441, claimant, William C. Brown 
 
            Company and Kemper Insurance have stipulated to the 
 
            existence of an employment relationship at the time of the 
 
            alleged injury, that any permanent disability is industrial 
 
            disability, to the rate of compensation and that certain 
 
            wages were voluntarily paid by claimant during a time of 
 
            temporary disability.
 
            
 
                 The parties stipulated to gross weekly wages of 
 
            $374.00, a marital status of married and entitlement to four 
 
            exemptions.  They further stipulated to a rate of $279.71 
 
            based on these facts.  The latter stipulation is actually a 
 
            legal conclusion based upon the factual stipulations as to 
 
            weekly earnings, marital status and exemptions.  The Guide 
 
            to Iowa Workers' Compensation Claim Handling published by 
 
            this agency and in effect on the date of injury reflects 
 
            that an individual so situated is entitled to a compensation 
 
            rate of $246.76 per week.  Accordingly, the stipulation as 
 
            to rate is rejected.  Based on the parties' factual 
 
            stipulations, claimant's compensation rate is $246.76.
 
            
 
                 Issues presented for resolution in case number 930441 
 
            include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of her employment on September 13, 1989;
 
            
 
                 2.  Whether the injury caused temporary or permanent 
 
            disability;
 
            
 
                 3.  The extent of disability;
 
            
 
                 4.  Entitlement to medical benefits under Iowa Code 
 
            section 85.27;
 
            
 
                 5.  The extent of credit to which defendants are 
 
            entitled;
 
            
 
                 6.  Whether claimant is entitled to penalty benefits 
 
            under Iowa Code section 86.13.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial finds:
 
            
 
                 Rhonda Knopp, 36 years of age at hearing, is a high 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            school graduate with no further training.  For all practical 
 
            purposes, her entire work experience consists of eighteen 
 
            years of employment with William C. Brown Company.
 
            
 
                 Ms. Knopp has a long history of back problems, 
 
            beginning in 1975.  She strained her back while lifting a 
 
            box of books in that year, but apparently did not pursue a 
 
            workers' compensation claim.  Unfortunately, her symptoms 
 
            progressively developed until 1981, when she underwent 
 
            exploratory surgery at L5-S1.  A congenital anomaly was 
 
            discovered, this being an enlarged dorsal ganglion.  This 
 
            was decompressed and no evidence of disc protrusion was 
 
            identified.  The treating surgeon, David S. Field, M.D., is 
 
            a board certified orthopedist who testified by deposition on 
 
            July 12, 1991.  Dr. Field eventually assigned a ten percent 
 
            whole body impairment based on back surgery and occasional 
 
            pain in the left leg, but noted in 1982 that claimant had 
 
            made further improvement and was essentially symptom free.
 
            
 
                 Claimant saw Dr. Field again in 1986 with complaints of 
 
            intermittent aching left leg pain and some lower back pain.  
 
            Dr. Field's chart notes of January 8 of that year show no 
 
            complaints of numbness or tingling.  Chart notes of February 
 
            18, 1986, show that claimant did not complain at that time 
 
            of leg pain, but had some weakness in both legs when 
 
            standing which he considered secondary to spasm.  This 
 
            flare-up eventually resolved and claimant testified that she 
 
            was basically pain free from 1986 through 1988.
 
            
 
                 Claimant has held a number of jobs with Brown, but has 
 
            been a bindery worker for the last four years.  This work 
 
            involves running a number of book production machines, 
 
            including collators, stitchers, punchers and binders.  
 
            Typically, workers switch machines about every four hours.  
 
            The work generally requires claimant to be on her feet most 
 
            of the day along with bending and lifting.  The amount of 
 
            weight lifted at any one time is largely at the discretion 
 
            of the worker, although the work sometimes quite fast-paced.  
 
            Claimant believes she commonly lifts 25-35 pounds.  
 
            
 
                 On July 30, 1988, claimant was operating the "perfect 
 
            binding" machine when she developed lower back pain during 
 
            the course of moving many bundles.  She described the pain 
 
            as a sensation of pressure, like someone "riding" her back.  
 
            She was treated the following day with an epidural injection 
 
            and returned to work without medical restrictions of any 
 
            kind.  Except for the injection, no time was lost from work.
 
            
 
                 On December 13, 1988, claimant was operating the same 
 
            machine when her back spasmed and "locked" up as she turned 
 
            while lifting a bundle.  She was treated by James A. 
 
            Pearson, M.D., and kept off work from until December 18.  
 
            Treatment again consisted of steroid injections.  On January 
 
            12, 1989, Dr. Pearson noted that claimant was still not 
 
            completely free of all discomfort, but was able to bend over 
 
            and lift.  She was released on a p.r.n. (return as needed) 
 
            basis.  No medical restrictions were imposed.
 
            
 
                 On June 30, 1989, claimant was working on a 
 
            stitcher/collater machine when she began developing pain 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            down the left leg.  This pain worsened through the day.  Ms. 
 
            Knopp again underwent steroid injections and, on August 1, 
 
            was prescribed a back brace by Dr. Field.  She did not miss 
 
            any work (except for those days on which she received 
 
            injections) and was released with no medical restrictions.
 
            
 
                 On September 13, 1989, claimant took a dramatic turn 
 
            for the worse.  While moving 35 pound bundles from the floor 
 
            to different levels in the operation of a flat-bed collator, 
 
            her back suddenly locked up only ten minutes before quitting 
 
            time.  Claimant developed sudden and severe back pain and 
 
            both legs and both feet suddenly went numb.  These symptoms 
 
            were "totally different" from previous symptoms, which 
 
            involved only a "achy" pain in the left leg, no pain at all 
 
            in the right leg and no loss of sensation.  Although the 
 
            "locking" sensation was gone by the next day, pain and 
 
            numbness lasted until surgery.  Claimant personally has no 
 
            doubt but that her subsequent problems are directly 
 
            traceable to this incident.
 
            
 
                 The next day, Dr. Field charted his belief that her 
 
            symptoms were now more suggestive of a central type disc 
 
            syndrome.  Magnetic residence imaging was ordered, resulting 
 
            in a lumbar laminectomy and removal of the L4-5 disc on 
 
            September 28, 1989, based on pre- and post-operative 
 
            diagnoses of herniated disc at that level.  
 
            
 
                 Claimant's recovery went well to start, but she 
 
            developed a recurrence of parathesia into the S1 
 
            distribution after rolling over in bed.  As a result, on 
 
            March 8, 1990 she underwent a repeat lumbar laminectomy with 
 
            exploration of the L4-5 disc, and a small laminectomy of 
 
            L5-S1 on the left.
 
            
 
                 Dr. Field's chart notes of June 7, 1990 reflect that 
 
            claimant was doing well with occasional minimal leg pain.  
 
            He felt there may be long term difficulty with respect to 
 
            the back and that claimant should consider other work 
 
            options or opportunities to try to reduce risk.  On June 14, 
 
            he wrote defendant employer to suggest an examination of 
 
            other job opportunities within the company to reduce the 
 
            risk of long term back problems, and to inquire as to 
 
            whether formal job retraining might be available.  
 
            
 
                 Claimant was released to light duty work on July 5, 
 
            1990 with restrictions against prolonged sitting or 
 
            standing, minimal bending, stooping and twisting and lifting 
 
            in excess of 20 pounds.  It is unclear whether Dr. Field 
 
            intended those restrictions to be permanent.  Following a 
 
            flare-up in August, the only restriction noted on a 
 
            return-to-work slip dated September 5 was to start half days 
 
            for the first three weeks.  In a letter dated January 18, 
 
            1991, Dr. Field suggested that various sports claimant 
 
            typically participated in could be done at very light or 
 
            moderate activity levels, but that contact sports like 
 
            volleyball and basketball should be avoided.
 
            
 
                 Incredibly, Dr. Field was never asked about permanent 
 
            restrictions at his deposition.  Although the record is most 
 
            unsatisfactory in this crucial respect, the undersigned 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            concludes that the restrictions of July 3, 1990 were 
 
            intended to be permanent.
 
            
 
                 Claimant did not resume work until the week ending July 
 
            6, 1990, when she worked four hours.  Prior to this, she was 
 
            not paid workers' compensation benefits, but Brown very 
 
            commendably paid her regular full time wage  based on a 
 
            40-hour week.  Although claimant testified that she missed 
 
            one raise during her time off work, her hourly rate was 
 
            increased from $9.07 to $9.35 beginning the week ending 
 
            October 6, 1989.  After returning to work at limited hours, 
 
            claimant subsequently worked 10, 4, 10, 20, 20, 20, and 8 
 
            hours for the subsequent weeks ending August 24, 1990.  She 
 
            was paid additional wages up to her regular 40 hour week in 
 
            all but three of those weeks (a total of 30 hours for the 
 
            week ending July 13, 32 hours for the week ending July 20 
 
            and 30 hours for the week ending July 27).  The record does 
 
            not disclose the net wages paid claimant, only the gross. 
 
            
 
                 Claimant did not work the week ending August 31, 1990, 
 
            but was paid for 40 hours.  At this point, Brown changed its 
 
            policy and no longer subsidized claimant's part time work.  
 
            In the next four weeks, she worked 12, 25, 20, and 33 hours, 
 
            respectively.  Full time duties were resumed during the week 
 
            ending October 5, 1990.  Ms. Knopp was promoted August, 
 
            1991, and today performs quite similar duties on a full time 
 
            basis.
 
            
 
                 The key fighting point in this case is a causation 
 
            dispute:  is the disc herniation that resulted in surgical 
 
            treatment causally related to one or more of these first 
 
            three injuries (when Continental was at risk) or the last 
 
            injury (when Kemper was at risk).  Dr. Field testified to 
 
            his belief that the actual herniation occurred on September 
 
            13, 1989, when claimant's symptoms dramatically changed for 
 
            the worse, at least as a significant aggravation of a 
 
            preexisting condition.  This was the "most significant 
 
            episode of a change in the pattern of her back symptoms."  
 
            Asked to explain that statement, Dr. Field testified:
 
            
 
                 A.  Well, what I was asked to do was to review her 
 
                 records in that segment of time that we have 
 
                 discussed here and to respectively go back and 
 
                 determine which symptoms that she presented to us 
 
                 were the most typical and timely relative to a 
 
                 disk problem occurring, in terms of a disk rupture 
 
                 occurring.  On the basis of our notes and the 
 
                 evaluation of her, that particular evaluation on 
 
                 September 14th, was the most, would be the most 
 
                 typical of something occurring to account for the 
 
                 patient with a disk surgery.
 
            
 
            (Joint Exhibit 10, pages 15-16).
 
            
 
                 Dr. Field also noted that the herniation was a "natural 
 
            progression" of her back condition prior to September 1989, 
 
            but this was in the context of a preexisting back problem 
 
            "that finally just changed" where there were "more symptoms 
 
            compatible with a disk herniation rather than just disk wear 
 
            and tear."  Dr. Field also believed that claimant's 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            preexisting back problem was due to a genetic predisposition 
 
            to these problems and that the herniation would have been 
 
            the inevitable result of the complex of problems she had 
 
            been having over the years, regardless of whether or not she 
 
            was doing the kind of work that she was at Brown.
 
            
 
                 Claimant was referred to Richard F. Neiman, M.D., by 
 
            her attorney.  Dr. Neiman is a board certified neurologist 
 
            who testified by deposition on May 6, 1992.  Although 
 
            claimant was originally seen only for evaluation, Dr. Neiman 
 
            became a treating physician when Dr. Field moved his 
 
            practice from claimant's geographical area. 
 
            
 
                 Dr. Neiman first saw claimant on August 12, 1991.  He 
 
            is of the view that claimant's disc herniation was unrelated 
 
            to the 1982 ganglion removal but resulted from an ongoing 
 
            sequence of events with recurrent muscle injuries commencing 
 
            on July 30, 1988.  The doctor described a process in which 
 
            abnormalities in the fibers making up the annulus (the tough 
 
            outer "gristle" of the disk) would balloon out, then 
 
            desiccate and become asymptomatic over time, and that this 
 
            process explained the first three injuries here under 
 
            consideration.  However, the September 13, 1989 incident was 
 
            "finally the one that basically broke the camel's back, the 
 
            straw" where the disc had gone beyond becoming stretched or 
 
            bulged out, but became a frank disc herniation:  that the 
 
            disc "just sort of gave way" on the last injury.  That is, 
 
            that claimant's condition had been a "bulging" disc prior to 
 
            September 13, but that was "the time she basically herniated 
 
            her disc."  Unlike Dr. Field, Dr. Neiman does not believe 
 
            that the herniation was inevitable, pointing out that he has 
 
            followed many patients for whom that was not true.  
 
            Nonetheless, he agreed that there was a causal connection 
 
            between the September herniation and the other injuries.  He 
 
            also pointed out that claimant was doing relatively well 
 
            with her pain prior to the last incident.
 
            
 
                 Dr. Neiman also believed the recurrent herniation in 
 
            March 1990 was causally related to the first.  He testified:
 
            
 
                 A.  It's not as -- We probably deal with 20 
 
                 percent probably have recurrent disc herniation.  
 
                 What probably has happened is you just get in a 
 
                 position, you have a little more material -- when 
 
                 you do the operation where they go in, open up the 
 
                 back, they make a hole, they make an -- actually a 
 
                 knife incision in the annular fibers, and they go 
 
                 in and they take a pituitary rongeur and they kind 
 
                 of pick out this inner material, the nucleus 
 
                 pulposus, which is kind of a tough, sticky stuff.  
 
                 It's kind of like using bathroom caulk.  And you 
 
                 pull out as much as you can.  
 
            
 
                    You never get it all out.  And most times 
 
                 that's adequate to take care of it, but sometimes 
 
                 you just turn over wrong and another piece of 
 
                 fiber that you missed blows out through this 
 
                 deficit that you've created there and causes 
 
                 recurrent disc herniation.  I think that's what 
 
                 happened in Rhonda.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            (Jt. Ex. 9, pp. 40-41).
 
            
 
                 Dr. Neiman specified that the March 1990 herniation and 
 
            resultant surgery was a natural consequence of the September 
 
            1989 herniation and surgery.
 
            
 
                 The doctor assessed a 20 percent body as a whole 
 
            impairment rating, attributing ten percent to the 1981 
 
            incident and the balance to the herniation of September 13, 
 
            1989 (two percent of this being attributable to the 1990 
 
            subsequent herniation).
 
            
 
                 Although Dr. Neiman also did not discuss medical 
 
            restrictions in his deposition, his letter of September 10, 
 
            1991 imposes restrictions against excessive flexion, 
 
            extension and lateral rotation of the back, temperature 
 
            extremes, and repetitive lifting of 20-25 pounds to a 
 
            maximum four times per hour at 35-40 pounds.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Brown and Continental concede that claimant sustained 
 
            injuries arising out of and in the course of her employment 
 
            on September 30, 1988, December 13, 1988 and June 30, 1989.  
 
            Each injury independently caused the need for medical 
 
            treatment and the December incident resulted in lost time in 
 
            excess of three days, thus entitling claimant to temporary 
 
            total disability under Iowa Code sections 85.32 and 
 
            85.33(1).  As such, each constituted a compensable and 
 
            distinct injury.
 
            
 
                 Brown and Kemper, on the other hand, deny that claimant 
 
            sustained a compensable injury on September 13, 1989.  
 
            
 
                 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).
 
            
 
                 She also has the burden of proving by a preponderance 
 
            of the evidence that the injury is a proximate cause of the 
 
            disability on which the claim is based.  A cause is 
 
            proximate if it is a substantial factor in bringing about 
 
            the result; it need not be the only cause.  A preponderance 
 
            of the evidence exists when the causal connection is 
 
            probable rather than merely possible.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. 
 
            Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 Two highly qualified physicians have testified to their 
 
            belief that claimant actually herniated a disc on September 
 
            13, 1989.  They do so, reasonably enough, on the basis in 
 
            the dramatic change in her symptomatology.  That change is 
 
            so striking that even a lay person can hardly fail to grasp 
 
            the significance.  Prior to September 13, 1989 claimant had 
 
            experienced a toothache-like pain in one leg and no loss of 
 
            sensation.  Although she had once previously had the 
 
            experience of her back "locking" up on her (as Dr. Neiman 
 
            indicates, presumably a muscle spasm), she recovered and 
 
            returned to her same job with only minor symptoms.  She 
 
            continued working for an additional nine months before the 
 
            dramatic events of September 13.  On September 13, her back 
 
            "locked up" again, but this sensation was now accompanied by 
 
            severe and piercing (enough to take her breath away) pain in 
 
            the lower back and both legs.  In addition, claimant 
 
            completely lost sensation in both feet.  This all occurred 
 
            as a traumatic incident while claimant was twisting and 
 
            lifting a fairly heavy load on a busy day.  It can hardly be 
 
            seriously argued that this incident did not at the least 
 
            materially aggravate, worsen or light up claimant's 
 
            preexisting condition, the mere existence of which is no 
 
            defense.
 
            
 
                 Kemper makes much of Dr. Field's view that an eventual 
 
            herniation was inevitable and Dr. Neiman's agreement that 
 
            the final herniation bore a causal relationship to the 
 
            previous back injuries.  Yet, this reliance is misplaced.  
 
            As to the inevitability of the eventual herniation, Dr. 
 
            Neiman's' view is more persuasive than that of Dr. Field.  
 
            Agency experience indicates that not all individuals who 
 
            develop bulging discs necessarily go on to suffer 
 
            herniation.  Yet, even assuming arguendo that an eventual 
 
            herniation was "inevitable," it is undeniable that the 
 
            herniation occurred no later than September 13, 1989 as 
 
            opposed to, for instance, 1999.  Without question, the 
 
            September 13 injury at least accelerated and lighted up the 
 
            injury so that it resulted in disability.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 In the three "Continental" injuries, when that carrier 
 
            bore the risk, the only dispute as to healing period or 
 
            temporary total disability relates to the time claimant lost 
 
            after September 13, 1989.  Continental bears no 
 
            responsibility for that.  The parties do dispute causation 
 
            of permanent disability and the extent thereof, if any.  
 
            They agree if she has sustained permanent disability, it is 
 
            an industrial disability because each injury was to the body 
 
            as a whole.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 An employer takes an employee subject to any active or 
 
            dormant health impairments, and a work connected injury 
 
            which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), 
 
            and cases cited.
 
            
 
                 After each of the Continental injuries, claimant was 
 
            able to return to work with no medical restriction 
 
            whatsoever.  She had no loss of actual income, no loss of 
 
            function, and no inability to perform physical work.  She 
 
            had no loss of earning capacity.  Any possible reluctance of 
 
            potential employers to consider claimant employable in the 
 
            competitive labor market because of her history of back 
 
            ailments is hugely insignificant compared to claimant's 
 
            status after her disk herniation on September 13, 1989 and 
 
            the two surgical procedures that followed.
 
            
 
                 The propriety of even considering that potential 
 
            reluctance, however, may well be now called into question by 
 
            provisions of the Americans With Disabilities Act of 1990, 
 
            Pub.L. 101-336.  The ADA took effect on July 26, 1992.  One 
 
            of the stated purposes of the Act is:
 
            
 
                 (1)  to provide a clear and comprehensive national 
 
                 mandate for the elimination of discrimination 
 
                 against individuals with disabilities:
 
            
 
            Pub.L. 101-336 section 2(b)(1).
 
            
 
                 There is certainly an argument to be made that the 
 
            passage of the ADA renders the potential disinclination of 
 
            prospective employers to treat a disabled claimant fairly as 
 
            no longer a factor.  After all, goes the argument, one 
 
            should not presume noncompliance on the part of the nation's 
 
            employers.
 
            
 
                 No direct authority on the issue presently exists 
 
            because the effective date of the Act is so recent.  But 
 
            this decision holds that the affect of the ADA on industrial 
 
            ability awards need not be considered here.  The extent of 
 
            industrial disability should be calculated as of the end of 
 
            healing period, the date to which disability awards are 
 
            routinely keyed.  Subsequent changes in condition are 
 
            routinely addressed through review-reopening.  A later 
 
            change in Federal law should not operate to, in effect, 
 
            retroactively affect entitlement to disability benefits.  
 
            For one thing, it would lead to inconsistent treatment of 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            identically situated individuals.  For example, one 
 
            individual may receive all the benefits to which he or she 
 
            is entitled through commutation or by routine payment of 
 
            undisputed weekly benefits.  Another individual, equally 
 
            disabled on the same day, might well find entitlement to 
 
            industrial disability substantially diminished by operation 
 
            of the ADA if that entitlement is determined only after a 
 
            contested case proceeding is successfully concluded.
 
            
 
                 For these reasons, it is held that the provisions of 
 
            the Americans With Disabilities Act of 1990 do not have 
 
            impact upon cases of industrial disability where the healing 
 
            period ends prior to July 26, 1992.
 
            
 
                 The subsequent herniation when claimant rolled over in 
 
            bed is obviously significant, since it directly resulted in 
 
            additional surgery, and in Dr. Neiman's view, some portion 
 
            of claimant's functional impairment.  Only one opinion 
 
            appears of record as to whether that incident is causally 
 
            related to the work injury of September 13, 1989.  Dr. 
 
            Neiman believes there is a direct relationship, that the 
 
            subsequent herniation was a "complication" of the September 
 
            injury.  This uncontroverted opinion is accepted.  The 
 
            subsequent herniation is a sequela of the first, and 
 
            therefore compensable.  Hamilton v. Combined Insurance of 
 
            America, number 854465 (Appeal Decn. October 10, 1991).
 
            
 
                 Considering the factors of industrial disability, it 
 
            must be concluded that claimant suffered none of the factors 
 
            of industrial disability, or loss of earning capacity, 
 
            attributable to the "Continental" injuries.  All of her 
 
            industrial disability is attributable to the events of 
 
            September 13, 1989.
 
            
 
                 What then is Rhonda Knopp's current industrial 
 
            disability?  She has no substantial loss of actual earnings 
 
            since she was paid her regular wages during most of her 
 
            healing period and is now earning a greater hourly wage than 
 
            at the time of injury.  It is significant that claimant is 
 
            such a long term and stable employee of the Brown Company 
 
            and that they have been able to give her continued 
 
            employment (at least to date) within her medical 
 
            restrictions.  Nonetheless, claimant is clearly less 
 
            competitive on the labor market by reason of her history of 
 
            disc herniation with two surgical procedures.  She has 
 
            medical restrictions which would prevent her from performing 
 
            work within her capability prior to September 13, 1989.  It 
 
            will be recalled that claimant has a high school education 
 
            and very limited work experience, basically that of running 
 
            machines for a book publishing enterprise.  Dr. Neiman's 
 
            restrictions are more significant than those suggested by 
 
            Dr. Field (even if the latter were intended to be permanent, 
 
            which is unclear) in that he was the most recent treating 
 
            physician.  He suggests avoiding excessive flexion, 
 
            extension and lateral rotation of the back, that temperature 
 
            extremes be avoided, and that claimant limit herself to 
 
            repetitive lifting of 20-25 pounds with a four time hourly 
 
            maximum of 35-40 pounds.  Given claimant's education and 
 
            work history, claimant appears best employed in a 
 
            manufacturing capacity.  Her restrictions will clearly bar 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            from her some positions for which she would otherwise be 
 
            suited.
 
            
 
                 Considering then these factors in particular and the 
 
            record otherwise in general, it is held that Rhonda Knopp 
 
            has sustained a permanent industrial disability equivalent 
 
            to twenty percent of the body as a whole, or 100 weeks.  The 
 
            writer notes that this is the same percentage of industrial 
 
            disability claimant suggested in her brief, but that 
 
            suggestion was not a factor considered in calculating 
 
            industrial disability; it is a coincidence.
 
            
 
                 Entitlement to medical benefits is also disputed.  
 
            Brown and Kemper, however, stipulate that the providers of 
 
            medical services would testify in the absence of contrary 
 
            evidence that these and treatment were reasonable and the 
 
            latter necessary.  Causal connection to the work injury is 
 
            disputed, but found established as per the foregoing 
 
            analysis.  Claimant shall be awarded the unpaid medical 
 
            bills set forth in exhibit A1 totaling $23,397.84.
 
            
 
                 Defendants are entitled to credit for the wages 
 
            voluntarily paid to claimant during her healing period.  
 
            However, the evidence presented at hearing shows only the 
 
            gross wages paid.  The credit to which defendants are 
 
            entitled is the net amount received by claimant after 
 
            payment of all applicable taxes.  Beller v. Iowa State 
 
            Pentitentiary, number 799401 (Appeal Dec. July 10, 1991).  
 
            On that basis, defendants may unilaterally establish the 
 
            amount of credit due, but, if claimant disputes the amount 
 
            of credit, the remedy is to file a new petition (which 
 
            requires no filing fee) for a determination by the agency, 
 
            which retains jurisdiction at all stages to determine proper 
 
            credit.  Bakalar v. Woodward State Hospital, number 756871 
 
            (Appeal Decn. June 16, 1989).
 
            
 
                 Claimant also seeks penalty benefits under Iowa Code 
 
            section 86.13.  In her brief, it appears that her request is 
 
            limited to the failure to pay medical benefits.  Although 
 
            defendants' failure to pay medical benefits was not "fairly 
 
            debatable" from this perspective, the statute does not 
 
            permit an award of penalty benefits based on the failure to 
 
            pay medical benefits.  Klein v. Furnas Electric Company, 384 
 
            N.W.2d 370 (Iowa 1986).  Penalty benefits based on failure 
 
            to pay weekly benefits are inappropriate, since claimant 
 
            apparently did not suffer a loss of actual earnings due to 
 
            defendant Brown's commendable payment of her regular salary.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                                        I.
 
            
 
                 In file numbers 946018, 911271, and 946019:
 
            
 
                 Claimant shall take nothing.
 
            
 
                 Defendants William C. Brown Company and Continental 
 
            Insurance shall bear their own costs pursuant to rule 343 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            IAC 4.33.
 
            
 
                                       II.
 
            
 
                 In file number 930441:
 
            
 
                 Defendants William C. Brown Company and Kemper 
 
            Insurance shall pay unto claimant one hundred (100) weeks of 
 
            permanent partial disability at the rate of two hundred 
 
            forty-six and 76/100 dollars ($246.76) per week commencing 
 
            September 29, 1990.
 
            
 
                 Against defendant's healing period from September 13, 
 
            1989 through July 4, 1990 and temporary partial disability 
 
            from July 5, 1990 through September 28, 1990, defendants 
 
            shall have credit for the net wages paid to claimant after 
 
            payment of all taxes.  Defendants shall unilaterally 
 
            calculate that credit, but the agency retains jurisdiction 
 
            to determine the correct amount if claimant so petitions.
 
            
 
                 All accrued weekly benefits shall be paid in a lump sum 
 
            together with statutory interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 Defendants shall pay the medical expenses set forth in 
 
            claimant's exhibit A1 and totalling twenty-three thousand 
 
            three hundred ninety-seven and 84/100 dollars ($23,397.84).
 
            
 
                 Costs are assessed to defendants pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by the agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Thomas M Wertz
 
            Attorney at Law
 
            4089 21st Avenue SW
 
            Suite 114
 
            Cedar Rapids Iowa 52404
 
            
 
            Mr Steven R Cantonwine
 
            Attorney at Law
 
            Breakwater Building
 
            3708 75th Street
 
            Des Moines Iowa 50322
 
            
 
            Mr James M Heckmann
 
            Attorney at Law
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            One CyCare Plaza
 
            Suite 216
 
            Dubuque Iowa 52001
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                                1703; 1803; 2206; 2207
 
                                                3003; 4000.2; 1108.50
 
                                                Filed July 31, 1992
 
                                                DAVID R. RASEY
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            RHONDA KNOPP,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.                            File Nos. 911271/930441
 
                                                     946018/946019
 
            WILLIAM C. BROWN COMPANY,     
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                             D E C I S I O N
 
            and       
 
                      
 
            KEMPER INSURANCE and     
 
            CONTINENTAL INSURANCE CO.,    
 
            c/o CLAS, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1803
 
            Provisions of the Americans With Disabilities Act were held 
 
            to have no impact on cases of industrial disability in which 
 
            the healing period ends prior to July 26, 1992.  
 
            
 
            1703
 
            Defendant employer paid claimant's regular wage for almost 
 
            the entire healing period.  However, evidence showed only 
 
            gross wages paid, not net.  Defendants are entitled only to 
 
            credit for the net amount received by claimant after payment 
 
            of all applicable taxes, and were permitted to unilaterally 
 
            establish the amount of credit due.  The agency retained 
 
            jurisdiction to determine the amount of such credit upon 
 
            claimant's petition if she disputes that calculation.
 
            
 
            1108.50; 2206; 2207
 
            After disc herniation and subsequent surgical excision, 
 
            claimant suffered a further herniation while rolling over in 
 
            bed.  This required a second surgery and entailed additional 
 
            loss of function.  The only medical opinion to address the 
 
            issue was that the "bed" herniation was directly caused as a 
 
            complication of the first surgery.  The second herniation 
 
            was held a sequela of the injury that caused the need for 
 
            the first surgery.
 
            
 

 
            
 
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            3003
 
            The parties stipulated to a rate that was incorrect based on 
 
            companion stipulations as to gross weekly earnings, marital 
 
            status and exemptions.  The latter stipulations are 
 
            stipulations of fact, while the stipulation as to the rate 
 
            itself is a legal conclusion based upon those facts.  As 
 
            such, the stipulation as to rate was rejected and claimant 
 
            was awarded benefits based on her correct rate. 
 
            
 
            4000.2
 
            Although defendants' failure to pay weekly benefits was not 
 
            "fairly debatable," penalty benefits were not awarded where 
 
            the employer commendably paid claimant her regular wages 
 
            during healing period.