Page   1
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LINDA K. DAILEY,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 947123
 
            L'EGGS PRODUCTS, INC.,   
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            THE TRAVELERS INSURANCE CO,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                                  INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Linda K. 
 
            Dailey, claimant, against L'Eggs products, Inc., employer, 
 
            and Travelers Insurance Co., insurance carrier, defendants, 
 
            for benefits as a result of an alleged injury which occurred 
 
            on November 13, 1989.  A hearing was held in Des Moines, 
 
            Iowa, on September 1, 1992 and the case was fully submitted 
 
            at the close of the hearing.  Claimant was represented by 
 
            John L. Riccolo.  Defendants were represented by Scott E. 
 
            McLeod.  The record consists of the testimony of Linda K. 
 
            Dailey, claimant, Tari Dailey, claimant's husband, Ken 
 
            Huber, district sales manager, Chris Strouth, area manager, 
 
            claimant's exhibits 1 through 30 (with the exception of 19 
 
            and 29 which were excluded because they were not timely 
 
            served), and defendants' exhibits A through M (with the 
 
            exception of C, E, and F, which are the depositions of 
 
            claimant, claimant's husband, and Huber because these 
 
            persons were available in the courtroom to testify at the 
 
            time of the hearing).
 
            
 
                 Claimant's deposition was admitted into evidence, 
 
            however, as defendants' exhibit A-5 because it is also 
 
            deposition exhibit 12 to the deposition testimony of John S. 
 
            Fox, M.D., whose testimony was admitted as defendants' 
 
            exhibit A.  For simplicity, claimant's deposition will be 
 
            cited and referred to as claimant's deposition the first 
 
            time it is mentioned and thereafter it will be cited as Cl. 
 
            Dep.  Defendants' exhibit I, a shipper, corrugated cardboard 
 
            box, and defendants' exhibit J, a tote, which is a smaller 
 
            corrugated cardboard box, were placed in the custody of 
 
            defendants until the expiration of all appellate periods 
 
            (Transcript page 60).   The deputy ordered a transcript of 
 
            the hearing.  Both attorneys submitted outstanding 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            post-hearing briefs.  
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            
 
                 Whether claimant sustained an injury on November 13, 
 
            1989, which arose out of and in the course of employment 
 
            with employer.
 
            
 
                 Whether the injury was the cause of either temporary or 
 
            permanent disability.
 
            
 
                 Whether claimant is entitled to either temporary or 
 
            permanent disability benefits and if so, the extent of 
 
            benefits to which she is entitled.  
 
            
 
                 Whether claimant is entitled to medical benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                                      INJURY
 
            
 
                 It is determined that claimant did not sustain an 
 
            injury arising out of her employment.  The words "out of" 
 
            refer to the cause or source of the injury.  Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 The alleged injury did occur in the course of 
 
            claimant's employment because the event, which is alleged to 
 
            be an injury, occurred at a time and place while claimant 
 
            was performing work for her employer.  "An injury occurs in 
 
            the course of the employment when it is within the period of 
 
            employment at a place the employee may reasonably be, and 
 
            while he is doing his work or something incidental to it."  
 
            Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 
 
            (Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d 
 
            283 (Iowa 1971); Musselman v. Central Telephone Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).  However, to be compensable 
 
            claimant has the burden of proving by preponderance of the 
 
            evidence that she received an injury on November 13, 1989, 
 
            arising out of and in the course of her employment.  
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).  Iowa Code section 85.3(1).
 
            
 
                 The reasons that the alleged injury did not arise out 
 
            of claimant's employment are because (1) the aneurysms and 
 
            headaches which claimant experienced were an idiopathic 
 
            health condition entirely personal to claimant, (2) 
 
            claimant's work activities were not a substantial factor 
 
            which aggravated her preexisting condition, (3) the 
 
            causation opinion of claimant's medical expert, who was also 
 
            the treating physician, was based upon an erroneous 
 
            understanding of the facts which transpired at the time 
 
            claimant experienced her acute onset of headaches on 
 
            November 13, 1989 and (4) the causation opinion of 
 
            claimant's medical expert was controverted by the opinion of 
 
            defendants' medical expert.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant, born January 9, 1947, was 42 years old at the 
 
            time of the alleged injury and 45 years old at the time of 
 
            the hearing.  Claimant started to work for employer as a 
 
            sales representative in 1974.  She continued to work for 
 
            employer for approximately 15 years until this incident 
 
            which occurred on November 13, 1989.  Her job duties 
 
            included taking orders, delivering and maintaining displays 
 
            of L'Eggs products in various grocery stores, discount 
 
            stores and drug stores in various towns in east central Iowa 
 
            (Tran., pp. 61-68; Daily Deposition p. 4).  
 
            
 
                 Employer furnished claimant with a large Ford Econoline 
 
            van with company lettering on the van.  Claimant testified 
 
            that she delivered products to the retail stores in 
 
            corrugated cardboard boxes which were called shippers and 
 
            totes (Tran., pp. 68-73).  A shipper is a larger cardboard 
 
            box and a tote is a smaller cardboard box.  Excellent 
 
            photographs of the loaded van, shippers and totes were 
 
            introduced into evidence (Exhibits 27a-27j; Exhibit D, Items 
 
            1-5).  A tote contains replacement panty hose for 
 
            replenishing the regular displays.  A shipper is a display 
 
            box which is setup to exhibit promotional items (Cl. Dep., 
 
            pp. 7-10). 
 
            
 
                 Chris Strouth, employer's area manager, testified from 
 
            company documents that three shippers and three totes were 
 
            delivered to McNally's Super Valu on November 13, 1989 
 
            (Tran., pp. 203 & 204; Ex. D-1).  Strouth testified that the 
 
            shippers delivered that day weighed respectively 10 pounds, 
 
            18 pounds and 19 pounds (Tran., p. 205; Ex. K, pp. 1, 2, & 
 
            4).  She testified that totes contain various products and 
 
            usually weigh between six pounds and nine pounds (Tran., p. 
 
            205).  Exhibit I, a shipper box and exhibit J, a tote box 
 
            were viewed by the deputy.  Randy Smith, the manager of 
 
            McNally's Super Valu, testified that he estimated that a 
 
            shipper would not weigh more than 20 pounds and that a tote 
 
            would weigh approximately five to ten pounds (Ex. D, pp. 13, 
 
            14, & 16; Dep. Ex. 2, pp. 1-5).  Smith estimated that 
 
            claimant delivered a couple of shippers and two or three 
 
            totes on November 13, 1989 (Ex. D, p. 15).
 
            
 
                 Claimant agreed that shippers weighed less than 20 
 
            pounds and totes weighed less than that.  She demonstrated 
 
            at the hearing that she could pick up a tote with one hand 
 
            without difficultly.  She agreed and demonstrated at the 
 
            time of her deposition on April 29, 1992, that she that 
 
            could easily lift a shipper (Tran., pp. 103-105, Cl. Dep. 
 
            pp. 60-62).  
 
            
 
                 At the time of her deposition, claimant testified that 
 
            she normally unloaded the van with a cart unless it was only 
 
            one or two items.  If it was simply a tote or a shipper she 
 
            would pick that up and carry it in by herself (Dep. Ex., pp. 
 
            13 & 14).  Claimant further acknowledged that she was 
 
            physically able to lift a shipper and that she did it 
 
            regularly throughout her job as a sales representative (Cl. 
 
            Dep., pp. 16 & 17).  Claimant also testified that even 
 
            though she did use a cart to move these boxes, if it was 
 
            only one or two shippers, she could lift them and take one 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            in one hand and one in the other hand and move them from the 
 
            back room to the display in the store rather than use a cart 
 
            (Cl. Dep., pp. 27 & 28).  Also at her deposition claimant 
 
            demonstrated that she could lift a tote and testified that 
 
            she could pick up five of them at time and place them on a 
 
            cart.  She repeated that if there were only one or two boxes 
 
            she would carry those into the store by hand.  She agreed 
 
            that she could do this easily and that it was not any strain 
 
            on her (Cl. Dep., pp. 64 & 65).
 
            
 
                 Claimant acknowledged that she had two episodes of 
 
            headaches prior to the one which occurred on November 13, 
 
            1989.  In July of 1988 she experienced a very severe 
 
            headache which began while she was sitting on the bathroom 
 
            stool after work at the Oak Tree Motel in Newton, Iowa after 
 
            working all day (Tran., pp. 105, 106, 123 & 124).
 
            
 
                 At that time claimant saw Robert B. Devermann, M.D., 
 
            her family physician, on July 12, 1988.  The doctor recorded 
 
            headaches of uncertain etiology.  He said there were several 
 
            possibilities.  He indicated that it was most likely a 
 
            vascular migraine type of headache but that other 
 
            possibilities would include subarachnoid hemorrhage or 
 
            spinal meningitis.  He ordered a CT scan and if it was 
 
            negative he thought she should probably have a spinal tap 
 
            (Ex. A-6, p. 2).  Claimant was hospitalized from July 12, 
 
            1988 to July 15, 1988 (Ex. A-6, pp. 4-6).
 
            
 
                 The noncontrast CT scan performed by W. J. Friesen, 
 
            M.D., on July 12, 1988, showed no intracranial masses and no 
 
            hemorrhage.  The impression was a normal noncontrast CT head 
 
            scan (Ex. A-6, p. 8).  Dr. Devermann recommended a spinal 
 
            tap to determine whether claimant had spinal meningitis.  
 
            Claimant refused to have a spinal tap (Ex. A-6, pp. 4 & 6).  
 
            Later evidence revealed that a spinal tap also would have 
 
            confirmed the presence of a subarachnoid hemorrhage.  Dr. 
 
            Devermann concluded "it was my impression that this most 
 
            likely represented a viral meningitis, although definitive 
 
            diagnosis rests on a lumbar puncture which the patient 
 
            refused repeatedly." (Ex. A-6, p. 4)
 
            
 
                 Dr. Devermann's notes for July 18, 1988, show that a 
 
            head MRI was scheduled at St. Lukes hospital on July 22, 
 
            1988 at 11:00 a.m.  Dr. Devermann's notes for July 19, 1988, 
 
            indicate that this appointment would be cancelled if her 
 
            headaches were doing better.  Dr. Devermann's notes for July 
 
            22, 1988, show that claimant's headache was gradually 
 
            getting better and that she missed the MRI appointment at 
 
            St. Lukes Hospital that morning (Ex. A-6, p. 2).  An earlier 
 
            note of Dr. Devermann in 1986 reflects that claimant 
 
            requested a prescription for Darvocet for headaches she gets 
 
            around the time of her period (Ex. A-6, p. 1).
 
            
 
                 Claimant testified that at the time of the second 
 
            episode in August of 1989 she consulted Joan Ryder Benz, 
 
            M.D., for headaches that were not relieved by Advil.  
 
            Claimant indicated that Dr. Benz told her these were tension 
 
            headaches for which the doctor prescribed a different 
 
            medication (Tran., pp. 106, 133, & 143).  Dr. Benz's office 
 
            note of August 18, 1989, showed that claimant had headaches 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            three times with nausea and hives for which the doctor 
 
            prescribed Midrin, Benadryl, Flicon cream and Naprosyn (Cl. 
 
            Ex. 3, p. 8; Def. Ex. A-6, p. 22).  
 
            
 
                 In performing her job for employer claimant typically 
 
            made deliveries out of town on Monday and Tuesday and stayed 
 
            overnight on Monday.  It was her practice to load the van at 
 
            the warehouse on Sunday.  Claimant testified that on Sunday, 
 
            November 12, 1989, at about 8:00 a.m., she went to the 
 
            warehouse in Cedar Rapids and spent about one hour loading 
 
            the van.  She physically lifted the shippers and totes 
 
            without the use of a cart (Cl. Dep., pp. 7, 12, & 23-25).  
 
            The shippers went into the side door of the van and the 
 
            totes went into the back door of the van. 
 
            
 
                 On Monday, November 23, 1989, claimant left home at 
 
            approximately 7:30 a.m., made deliveries in Tama, Iowa at 
 
            about 8:30 a.m. and made additional deliveries later that 
 
            day at a number of stores in Marshalltown (Cl. Dep., pp. 29 
 
            & 30).  When claimant arrived at McNally's in Grinnell she 
 
            went in the store and brought out two carts (Tran., p. 73).  
 
            Claimant testified that she then got in the side door of the 
 
            van to get the shippers out, bent over at a 90 degree angle 
 
            and in five seconds she experienced a severe headache 
 
            (Trans., p. 75).  Claimant clarified that she had not picked 
 
            up a shipper and she had not slid a shipper but simply bent 
 
            over to slide a shipper when the headache occurred (Tran., 
 
            pp. 101 & 102).
 
            
 
                 Claimant related, "Everything turned white, and the 
 
            headache just came on."  She added that it was "Pretty bad.  
 
            Awful.  I felt like I was going to pass out." (Tran., p. 
 
            75).  At another point claimant related "I recall turning 
 
            white, and I felt real dizzy and faint.  And a headache came 
 
            on suddenly, and that was it." (Tran., p. 118).  Claimant 
 
            agreed that the bending over was no more than she would 
 
            normally do in nonemployment life.
 
            
 
                 Claimant did not lose consciousness but put the 
 
            shippers and totes on the grocery carts and took them into 
 
            the store and told the manager that she would have to unload 
 
            them later because she was going to her motel and go to bed 
 
            because of a headache.  Claimant testified that she called 
 
            her husband, Tari Dailey and her supervisor Ken Huber, that 
 
            evening from the motel.  Claimant admitted that she did not 
 
            report to either her husband or Huber that the headache was 
 
            caused by unloading the van (Tran., pp. 108 & 169; Cl. Dep. 
 
            pp. 38 & 39).  Claimant testified that she told Huber she 
 
            thought she had the flu (Tran., p. 108).  
 
            
 
                 On Tuesday, November 14, 1989, claimant was able to 
 
            work with Huber making calls, part of the day, and she was 
 
            able to drive the van back to Cedar Rapids (Tran., pp. 111 & 
 
            112; Cl. Dep., p. 40).  Upon arriving home she met Dr. Benz, 
 
            who was her next door neighbor, in the driveway, and the 
 
            doctor sent claimant to St. Lukes Hospital emergency room.  
 
            Claimant did not report to Dr. Benz that the headache 
 
            occurred while she was unloading the van or doing any other 
 
            work activity (Tran., pp. 79, 80 & 112; Cl. Dep., p. 41).
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 At the emergency room claimant saw L. D. Helvey, M.D., 
 
            (Tran., pp. 79-81).  Dr. Helvey noted elevated blood 
 
            pressure, administered medications and made this impression 
 
            "probable tension headache, cannot rule out a typical 
 
            migraine at this time.  No evidence of meningitis or 
 
            subarachnoid bleed, no CT scan or LP needed at this time." 
 
            (Ex. 1, p. 2).  Dr. Helvey recorded that this 42-year-old 
 
            patient had a diffuse headache.  His notes do not reflect 
 
            that it occurred while unloading a van or performing any 
 
            other work activity.
 
            
 
                 The following day, Wednesday, November 15, 1989, 
 
            claimant still suffered from severe headache and Dr. Benz 
 
            referred claimant to J. R. LaMorgese, M.D., a neurosurgeon 
 
            (Tran., pp. 81 & 113; Ex. 2, pp. 2 & 20).  Dr. LaMorgese 
 
            admitted claimant to St. Luke's Hospital from November 15, 
 
            1989 to November 20, 1989.  A CT scan performed by W. J. 
 
            Friesen, M.D., on Wednesday, November 15, 1989, disclosed a 
 
            rounded density and raised a possibility of an aneurysm at 
 
            the base of the tip of the basilar artery.  Dr. Friesen said 
 
            that the scan demonstrated no evidence of acute intracranial 
 
            hemorrhage (Ex. 2, p. 47).  
 
            
 
                 An angiogram performed by Craig E. Clark, M.D., on the 
 
            same day November 13, 1989, disclosed (1) a large basilar 
 
            tip aneurysm, (2) a small left anterior cerebral artery 
 
            aneurysm and (3) a right middle cerebral artery aneurysm 
 
            (Ex. 2, pp. 45 & 46).  The angiogram disclosed no evidence 
 
            of blood or hemorrhage (Ex. 2, pp. 45 & 46).  Even though 
 
            the CT scan and the angiogram did not disclose any blood or 
 
            hemorrhage, nevertheless, apparently based upon clinical 
 
            factors, Dr. LaMorgese diagnosed subarachnoid hemorrhage, 
 
            secondary to basilar tip artery aneurysm, aymptomatic right 
 
            middle cerebral artery aneurysm and anterior communicating 
 
            artery aneurysm (Ex. 2, pp. 2 & 20).  There is no evidence 
 
            in the records of Dr. LaMorgese that claimant gave a history 
 
            that the headaches occurred at work or that they were caused 
 
            by any work-related activity.  Dr. LaMorgese referred 
 
            claimant to the Mayo Clinic for surgery because claimant had 
 
            three aneurysms rather than just one (Tran., p. 82).  
 
            
 
                 Claimant was hospitalized at the Mayo Clinic from 
 
            November 20, 1989 to December 19, 1989, (Ex. 5, p. 6) where 
 
            Thoralf M. Sundt, M.D., a neurosurgeon, performed a right 
 
            craniotomy to repair all three aneurysms on November 22, 
 
            1989 (Ex. 5, pp. 8, 12, 38 & 52).  A head CT scan on 
 
            December 4, 1989, showed no evidence of hemorrhage or 
 
            infarction (Ex. 5, p. 39).
 
            
 
                 Claimant was admitted to the Mayo rehabilitation unit 
 
            on December 6, 1989 (Ex. 5, pp. 38 & 39).  On December 19, 
 
            1989, she was discharged to the rehabilitation center at St. 
 
            Luke's Hospital in Cedar Rapids still severely debilitated 
 
            (Tran. p. 91; Ex. 5, pp. 2, 38-42 & 69-72).  She was 
 
            discharged from there on January 19, 1990 and was still 
 
            required to use a wheelchair or a walker (Tran., pp. 91 & 
 
            147).  B. R. Nichols, M.D., stated that claimant had 
 
            significant neurologic disability of third nerve palsies and 
 
            incoordination on the right as well as impulsivity, 
 
            diminished memory and depression.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Most of these conditions persisted throughout all of 
 
            her rehabilitation (Ex. 5, pp. 2-5; Ex. 5, pp. 34-53, 135, 
 
            136, 139-141, 143-145, 150-152, 156-176, and 182-185).  
 
            Claimant continued with extensive out patient physical 
 
            therapy from January 23, 1990 to March 22, 1990 (Ex. 7).  
 
            She also required extensive home service care from Mary 
 
            Russell Home Care Services until March 2, 1990 (Tran., p. 
 
            148, Ex. 8).  Since then claimant has been hospitalized a 
 
            number of times for suicidal threats, overdose of 
 
            medications, medication imbalance, severe depression, 
 
            affective organic syndrome, suspected but unconfirmed heart 
 
            problems, hypertension, hyperopia, obesity and bleeding 
 
            ulcers.  
 
            
 
                 Claimant has been seen, treated and evaluated by a 
 
            number of psychiatrists and psychologists for difficult 
 
            family relationships with her husband, mother, step-daughter 
 
            and daughter.  Claimant has shown improvement over time 
 
            (Exs. 9-13, 16-21).  Claimant applied for social security 
 
            disability benefits in January of 1990 (Ex. 14, pp. 47 & 48) 
 
            and began receiving benefits in May of 1990 (Tran., p. 161).  
 
            Claimant was receiving these benefits at the time of the 
 
            hearing (Tran., p. 105).  
 
            
 
                 Claimant has participated in the brain injury program 
 
            at Traumatic Brain Injury Systems (T.B.I) at Reinbeck, Iowa 
 
            for seven months (Tran., pp. 92, 93 & 173) and she also has 
 
            been treated at the Kansas Institute for one month (Tran., 
 
            pp. 97 & 176).  Claimant's husband testified that she has 
 
            been more stabilized since she returned home from the Kansas 
 
            Institute but that there was still room for improvement 
 
            (Tran., pp. 179 & 180).  Total medical expenses submitted 
 
            amount to $195,768.50 (Cl. Ex. 26).  Claimant's husband 
 
            acknowledged that when his wife called him from Grinnell 
 
            that she did not associate her headaches with her work or 
 
            any work activity at that time (Tran., pp. 169 & 170).
 
            
 
                 Huber testified that when claimant called him from 
 
            Grinnell that she did not say that she was performing any 
 
            work activity for employer when the headaches occurred such 
 
            as unloading the van at McNally's (Tran., p. 185).  Huber 
 
            further stated that he talked to claimant and claimant's 
 
            husband when she was in the hospital in Cedar Rapids and 
 
            neither one mentioned that they were claiming that claimant 
 
            sustained the headache as a result of any work activity that 
 
            she was performing for employer (Tran., pp. 185-188). 
 
            
 
                 Dr. Sundt, an outstanding board certified neurosurgeon, 
 
            with over 30 years of experience in the speciality of 
 
            vascular surgery testified by deposition on June 27, 1991 
 
            (Exs. 28 & B, p. 7).  He said he first saw claimant on 
 
            November 21, 1989.  The history he received from the 
 
            neurology department was that claimant sustained a sudden 
 
            onset of headache while lifting a heavy box from a van (Exs. 
 
            28 & B, p. 7).  
 
            
 
                 Dr. Sundt testified that claimant's symptoms at that 
 
            time were typical of a bleed which he further described as 
 
            an intracranial hemorrhage (Exs. 28 & B, p. 7).  He further 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            testified that the bleed occurred because an aneurysm 
 
            ruptured (Exs. 28 & B, p. 8).  Dr. Sundt correlated the 
 
            hemorrhage with  the lifting that claimant was performing at 
 
            the time of the bleed (Exs. 28 & B, pp. 8-11).  He stated 
 
            that in looking for a cause and effect relationship, that a 
 
            large percentage of the time ruptured aneurysms are 
 
            associated with (1) lifting, (2) acute onset with bowel 
 
            strain at the stool and (3) acute onset during sexual 
 
            intercourse because these activities increase blood pressure 
 
            (Exs. 28 & B, p. 21).  However, the doctor also granted that 
 
            most bleeds occur without a known precipitating factor (Exs. 
 
            28 & B, p. 23).  
 
            
 
                 The doctor clarified that the lifting did not cause the 
 
            aneurysm but he felt that the lifting precipitated the 
 
            hemorrhage because of the frequency of the correlation 
 
            between the relative strain of the lifting and the event of 
 
            the hemorrhage based on his past experience (Exs. 28 & B, 
 
            pp. 9-11, 27 & 28).  He declined to say that this was his 
 
            opinion based upon a reasonable degree of medical certainty 
 
            but would only say it was his opinion, even though it was 
 
            explained to him that medical certainty did not mean 
 
            absolute certainty but just more probable than not (Exs. B & 
 
            28, p. 11).  
 
            
 
                 The history presented to Dr. Sundt by the neurology 
 
            department states that claimant experienced a sudden severe 
 
            headache on November 13, 1989, when lifting a heavy box from 
 
            a van (Ex. 5, p. 14).  This is an erroneous history.  
 
            Neither the deposition testimony of claimant nor the hearing 
 
            testimony of claimant confirm that she was doing any 
 
            lifting, save heavy lifting when she experienced the 
 
            headache.  Her testimony was that she bent over at ninety 
 
            degrees to slide a shipper in the van when she experienced 
 
            the headache.  
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  However, the 
 
            expert opinion may be accepted or rejected in whole or in 
 
            part by the trier of fact Sondag v. Ferris Hardware, 220 
 
            N.W.2d 903, 907 (Iowa 1974).  Furthermore, the weight or 
 
            probative value of the opinion may be destroyed by the fact 
 
            that it is based upon an erroneous premise.   Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
            Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
            N.W.2d 128 (1967).  Thus the opinion of Dr. Sundt was based 
 
            upon erroneous facts.  Also taken into consideration is the 
 
            fact that Dr. Sundt acknowledged that most bleeds occur 
 
            without any known precipitating factor (Exs. 28 & B, p. 23).  
 
            
 
                 The testimony of Dr. Sundt does add weight to the 
 
            determination of the deputy that this headache incident, 
 
            which occurred on November 13, 1989, was attributable to an 
 
            idiopathic condition and was attributable to claimant's 
 
            state of health on that date which had existed for quite 
 
            some time.  Claimant requested Darvocet because of the 
 
            severity of her headaches associated with her menstrual 
 
            cycle as early as 1986.  Dr. Sundt testified that he 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            believed that claimant had a major bleed in July of 1988 
 
            because the aneurysm existed at that time (Exs. 28 & B, pp. 
 
            12, 18 & 19).  Dr. Sundt examined the CT scan taken by Dr. 
 
            Friesen at that time (July 12, 1988) for Dr. Devermann and 
 
            identified the basilar aneurysm in the center of the picture 
 
            (Exs. 28 & B, pp. 34 & 35).  He further believed that if 
 
            claimant had consented to a lumbar puncture that the 
 
            aneurysm could have been treated more effectively at that 
 
            time (Exs. 28 & B, pp. 16 & 17).
 
            
 
                 Dr. Sundt further believed that the headaches for which 
 
            claimant consulted Dr. Benz on August 18, 1989 
 
            (approximately three months before this alleged injury) were 
 
            probably a little signal bleed, a warning bleed, or a 
 
            sentinel bleed.  He said these are little hemorrhages that 
 
            typically occur a week or ten days before a major bleed 
 
            (Exs. 28 & B, p. 20).
 
            
 
                 Other factors that would indicate that claimant's 
 
            subarachnoid hemorrhage was an idiopathic condition entirely 
 
            personal to claimant's state of health is based upon the 
 
            fact that Dr. Sundt testified that the aneurysm was 
 
            approximately 10 or 12 millimeters in size on July 12, 1988, 
 
            and that it was 17 millimeters at the time of the surgery on 
 
            November 22, 1989 (Exs. 28 & B, p. 35).  
 
            
 
                 Further evidence that the aneurysm might have been 
 
            somewhat advanced is Dr. Sundt's speculation that claimant's 
 
            basilar aneurysm had expanded and was impacting or 
 
            projecting into the hypothalamus and caused a change in her 
 
            eating habits and metabolism and was causing her obesity and 
 
            overweight (Exs. 28 & B, pp. 38 & 39).  
 
            
 
                 Additional evidence that claimant's subarachnoid 
 
            hemorrhage was related to an idiopathic condition is the 
 
            fact that women have thinner blood vessels than men (Exs. 28 
 
            & B, p. 39) and that   Dr. Sundt opined that it was 
 
            inevitable that the aneurysm would rupture after it became 
 
            10 millimeters in size (Exs. 28 & B, p. 40), notwithstanding 
 
            the fact he believed that the strain of lifting on November 
 
            13, 1989, precipitated the bleed at that time (Exs. B & 28, 
 
            p. 40).  However, there is no evidence from claimant that 
 
            she was lifting or performing heavy lifting at the time of 
 
            the headache.  On the contrary, claimant testified that she 
 
            simply bent over, and without sliding the box or lifting it, 
 
            she experienced the severe headache.
 
            
 
                 Wherefore, (1) based upon the fact that it was 
 
            established by objective evidence that claimant had a 
 
            basilar aneurysm on July 12, 1988, which was already at 
 
            least 10 millimeters in size, (2) based upon the fact that 
 
            she experienced additional headaches not relieved by over 
 
            the counter medications on August 18, 1989, which Dr. Sundt 
 
            believed were warning or sentinel bleeds which precede a 
 
            major bleed, (3) based upon the fact that the aneurysm had 
 
            increased from 10-12 millimeters to 17 millimeters in size 
 
            at the time of the surgery on November 22, 1989, (4) based 
 
            upon claimant's female gender her arteries were thinner and 
 
            more predisposed to an aneurysm than persons of the male 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            gender, (5) based upon the speculation that claimant's 
 
            aneurysm had possibly expanded to the point where it had 
 
            been affecting the hypothalamus and contributed to her 
 
            obesity as ai the injury Lawyer & Higgs, Iowa Workers Compensation -- 
 
            Law & Practice (2nd (Ed.), Section 5-1 page 36;  Musselman 
 
            v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
            (1967).  Like claimant in this case Musselman had a 
 
            preexisting vascular disease.  Somewhat like claimant 
 
            Musselman's work required him to lift containers weighing up 
 
            to approximately 40 pounds, however, at the time of the 
 
            alleged injury he was leaning against a wall for balance 
 
            while putting an overshoe on the left foot with his right 
 
            hand, gave it a jerk and then noticed a sharp knife like 
 
            pain on the left side of his lower back.  The supreme court 
 
            stated in Musselman:
 
            
 
                 This court has previously held, if a claimant had 
 
                 a preexisting condition or disability, aggravated, 
 
                 accelerated, worsened or "lighted up" by an injury 
 
                 which arose out of and in the course of employment 
 
                 resulting in a disability found to exist, he would 
 
                 be accordingly entitled to compensation.  See 
 
                 Nicks v. Davenport Produce Co., 254 Iowa 130, 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
                 134, 135, 115 N.W.2d 812, and citations.
 
            
 
                 However, a disease which under any rational work 
 
                 is likely to progress so as to finally disable an 
 
                 employee does not become a "personal injury" under 
 
                 our Workmen's Compensation Act merely because it 
 
                 reaches a point of disablement while work for an 
 
                 employer is being pursued.  It is only when there 
 
                 is a direct causal connection between exertion of 
 
                 the employment and the injury that a compensation 
 
                 award can be made.  The question is whether the 
 
                 diseased condition was the cause, or whether the 
 
                 employment was a proximate contributing cause.  
 
                 Littell v. Lagomarcino Grupe Co., 235 Iowa 523, 
 
                 529, 17 N.W.2d 120, and citations. 
 
            
 
                 The Mussleman court determined that the commissioner 
 
            was justified in denying benefits for the reason that 
 
            claimant did not sustain the burden of proof by 
 
            preponderance of the evidence that the facts of this case 
 
            (putting on an overshoe) were the proximate cause of 
 
            claimant's injury or disability.
 
            
 
                 Likewise, in this Dailey case it is evident that 
 
            diseased condition (aneurysms) rather than the employment 
 
            was the proximate cause of the headache and possible rupture 
 
            of the aneurysm.
 
            
 
                 The meaning of proximate cause was clarified in the 
 
            case of Blacksmith v. All American Inc., 290 N.W.2d page 
 
            348, 354 (Iowa 1980).  Blacksmith also had a vascular 
 
            deficiency known as thrombophlebitis.  The court stated a 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result.  See Holmes v. Bruce Motor Freight, Inc., 
 
            215 N.W.2d 296, 297 (Iowa 1974).  
 
            
 
                 Probably the most common citation of authority that the 
 
            injury must arise out of the employment is the case of 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 
 
            1976).  McDowell is a case involving the aggravation of a 
 
            preexisting aneurysm which ruptured resulting in the death 
 
            of claimant.  The ultimate outcome of the McDowell case 
 
            cannot be determined from the supreme court decision but it 
 
            would appear the work activity was a substantial factor in 
 
            causing the injury.  McDowell, a volunteer fireman, was 
 
            called to an emergency flooding situation, operated an end 
 
            loader, operated a dump truck, and assisted workers in 
 
            filling sandbags alternating holding the bags or shoveling 
 
            sand into the bags for approximately 20 minutes in a hurried 
 
            manner under the stress of the natural disaster of flooding.  
 
            This clearly appears to this deputy to be work activity 
 
            which would be a substantial factor in causing the rupture 
 
            of the aneurysm.  
 
            
 
                 In Auxier v. Woodward State Hospital School, 266 N.W.2d 
 
            139 (Iowa 1978) claimant had a preexisting broken leg from 
 
            which she was recuperating when a patient tripped her and 
 
            she fell and reinjured her right ankle.  The work activity 
 
            was determined to be a substantial factor in bringing about 
 
            the reinjury of claimant's right ankle.
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 In Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974) a claimant with a preexisting heart condition had his 
 
            case remanded to the industrial commissioner for a finding 
 
            of whether his act of continuing to work after heart attack 
 
            symptoms begin aggravated his preexisting heart condition.  
 
            The conclusion of the court was that a claimant with 
 
            preexisting angina pectoris, who was recalled from vacation 
 
            on hot and sultry day to hurriedly unload crated washing 
 
            machines weighing 300 to 400 pounds from a boxcar and haul 
 
            them to his employer's store for approximately one hour had 
 
            shown that his work activity was a substantial factor in 
 
            bringing about claimant's myocardial infraction.  
 
            
 
                 In Barz v. Oler, 257 Iowa page 508, 133 N.W.2d 704 
 
            (1965) claimant ruptured an aneurysm in the lower portion of 
 
            the abdominal aorta with massive hemorrhage.  Barz was a 
 
            plumber making an emergency repair on a pressure tank in a 
 
            well pit.  Barz had lifted 15 or 20 buckets of water out of 
 
            the pit worked in a very awkward position and was required 
 
            to push on an 18 inch wrench with all of his strength.  
 
            Claimant suddenly became ill and died of a ruptured aneurysm 
 
            in the ambulance en route to the hospital.  Thus, the court 
 
            determined in effect that the work activity was a 
 
            substantial factor in bringing about and hastening 
 
            claimant's death.  
 
            
 
                 In reviewing these landmark, traditional workers' 
 
            compensation cases to determine what is or what is not a 
 
            substantial factor in aggravating a preexisting condition, 
 
            the facts of this case are the most analogous to the facts 
 
            in the  case of Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963).  Olson sustained an injury to 
 
            his back when he simply stooped over to test a battery and 
 
            experienced a terrific pain across his back and down into 
 
            his testicle that caused permanent incapacity.  Claimant 
 
            Dailey in this case simply bent over to slide a box.  Olson 
 
            stooped over to test a battery.  A distinguishing feature of 
 
            the Olson case is that claimant had already sustained 
 
            several back injuries that had arisen out of and in the 
 
            course of his employment, had made 15 trips to Mayo Clinic 
 
            in the 20 years preceding this injury and had already 
 
            received two lumbar fusions prior to this injury.  Claimant 
 
            in this case had no previous work-related headaches which 
 
            arose out of and in the course of her employment with 
 
            employer.  Thus, when Olson's stooping action was combined 
 
            with his long and extensive history of work-related back 
 
            problems apparently it was concluded that the work activity 
 
            was a substantial factor in aggravating his preexisting 
 
            condition.  
 
            
 
                 In Hemker v. Drobney, 253 Iowa 421 112, N.W.2d 672 
 
            (1962) Drobney, with his employer, removed a mattress and 
 
            box springs from a home and delivered a new mattress and box 
 
            springs, which required quite a struggle in a warm house.  
 
            Drobney struck his foot against some object and dropped his 
 
            end of the load subsequently became ill and died.  This 
 
            would appear to be a substantial factor sufficient to 
 
            constitute a proximate cause.
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
                 In Yeager v. Firestone Tire and Rubber Co., 253 Iowa 
 
            369, 373-74, 112 N.W.2d 299, 301 (1961) claimant fell, 
 
            struck his head and suffered a blackout in 1956.  In 1958 he 
 
            fell again when a heavy tire fell on top of him from a mold 
 
            which caused a goose egg on the back of his head.  The facts 
 
            of the second fall were considered to be a substantial 
 
            factor in the aggravation of his preexisting head injury.  
 
            Claimant was not able to receive compensation for the result 
 
            of the preexisting injury but he was entitled to 
 
            compensation for the disability found to exist from the 
 
            second injury.  The Yeager case stands for the proposition 
 
            that the aggravation of a preexisting must be a material 
 
            aggravation.  Whether that is a different test than a 
 
            substantial factor is not known.  It believed that material 
 
            aggravation is just another way of saying substantial 
 
            factor.  The court found there was "substantial evidence" of 
 
            disability caused by the second fall.
 
            
 
                 In Ziegler v. United States Gypsum, 252 Iowa 613, 106 
 
            N.W.2d 591 (1960) the supreme court applied a slightly 
 
            different legal standard than the substantial factor test in 
 
            order to find causation from the aggravation of a 
 
            preexisting condition.  The court said that if the 
 
            preexisting active or dormant health impairments are more 
 
            than slightly aggravated then the resultant condition is 
 
            considered a personal injury.  More than slightly aggravated 
 
            sounds like a lesser standard than whether it is a 
 
            substantial factor.  In any event, the facts of the case 
 
            would appear to pass the substantial factor test also.  
 
            Ziegler was seriously injured in May of 1956, in a switching 
 
            accident, which pinned him between the end of a railroad car 
 
            and the side of a trackmobile.  About a year later he was 
 
            returned to work light duty.  The light duty consisted of 
 
            pushing and pulling a 30 pound rake and using a wheelbarrow 
 
            to dump 50 pounds loads of stucco into a bin.  The court 
 
            upheld the commissioner because there was sufficient 
 
            competent evidence that there was direct causal connection 
 
            between the exertion of the employment and the injury upon 
 
            which the award was made.  A substantial factor appears to 
 
            be present in the Ziegler case.
 
            
 
                 In Guyon v. Swift and Company, 229 Iowa 625 (1940) the 
 
            court determined that strenuous employment exertion was a 
 
            substantial factor in aggravating Guyon's preexisting 
 
            coronary artery disease.  Guyon, age 60, who weighed over 
 
            200 pounds was a stationary engineer.  A conveyor broke and 
 
            over 100 employees were unable to work until the trouble was 
 
            remedied.  Guyon was ordered to get it going.  He walked up 
 
            a ramp, then up a series of stairs, climbed a vertical 
 
            ladder over 13 feet high to the balcony then went along the 
 
            runway of the balcony to the motor which failed to operate 
 
            the conveyor.  Claimant followed this course two or three 
 
            times.  His face became red.  He became excited and nervous 
 
            because he was having difficulty in locating the trouble.  
 
            Twenty minutes later he suffered a coronary occlusion and 
 
            died two hours later because a small piece of the calcified 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            wall (plaque) had broken off and became lodged in his 
 
            arterial passageway causing a complete obstruction or 
 
            occlusion of the artery and causing his death.  The court 
 
            concluded that strenuous employment exertion was a 
 
            substantial factor in aggravating his preexisting coronary 
 
            artery disease.  
 
            
 
                 In West v. Phillips, 227 Iowa 612 (1939) claimant, 
 
            West, a baker, who had a preexisting diseased heart and 
 
            arteries died as a result of heat exhaustion and heat stroke 
 
            from the intense heat in the bake shop.  The court found 
 
            that natural heat intensified by artificial heat was a 
 
            substantial factor in causing his death.  The court found 
 
            that the excessive heat was the proximate cause of the 
 
            aggravation of claimant's preexisting heart condition and 
 
            hastened his death.
 
            
 
                 In the famous case of Almquist v. Shenandoah Nurseries 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934) the court found that 
 
            Almquist's work of manually pulling up and shaking out 
 
            barberry bushes from clumps of dirt weighing anywhere from a 
 
            few pounds to 250 pounds was a substantial factor and 
 
            proximate cause of his death because it caused a perforation 
 
            in a preexisting ulcer.  The court confirmed that an 
 
            accident, special incident or unusual occurrence is not 
 
            required in order to establish a personal injury in Iowa.  
 
            The court held the physical strain of his ordinary work 
 
            ruptured his stomach at the point of a preexisting old 
 
            perforated ulcer.  The heavy work was the substantial factor 
 
            which aggravated claimant's preexisting ulcer weakened 
 
            stomach.  In this Dailey case we do not have an accident, 
 
            special incident or unusual occurrence, which are not 
 
            required for an injury, but neither do we have the exertion 
 
            of heavy work operating on claimant's preexisting 
 
            aneurysm(s).
 
            
 
                 In Hanson v. Dickinson, 188 Iowa 728 (1920), claimant's 
 
            hammer slipped off the chisel and struck Hanson's left leg.  
 
            This was determined to be the proximate cause of gonorrhoeal 
 
            arthritis because it lighted up claimant's hidden and 
 
            dormant gonorrhoeal condition.  The striking of his leg with 
 
            the hammer was a substantial factor in aggravating the 
 
            preexisting condition.
 
            
 
                 In Lindahl v. L. O. Boggs Co., 236 Iowa 296 18 N.W.2d 
 
            607 (1945), claimant Lindahl, age 42, was a warehouse worker 
 
            with preexisting arteriosclerosis.  He loaded seven cartons 
 
            of syrup which weighed 42 and one-half pounds onto a cart 
 
            which is something he had done numerous times in the past.  
 
            A short time later he became ill and was taken to the 
 
            hospital where it was determined that he suffered a stroke 
 
            of apoplexy which resulted in a permanent paralysis to his 
 
            left side.  At no time did Lindahl state he hurt himself or 
 
            injured himself or what was causing him to feel as he did.  
 
            He did not claim that he had strained, or over exerted 
 
            himself, or that he had done any heavy lifting, or that he 
 
            had slipped, fell or that anything out of the ordinary had 
 
            occurred.  The industrial commissioner resolved a conflict 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            of the expert medical testimony in favor of the employer.  
 
            The supreme court refused to disturb the finding of the 
 
            commissioner.  Thus, the Lindahl case did not find that 
 
            claimant's loading and stacking of seven boxes of syrup 
 
            which weighed 42 and one-half pounds, which was a normal 
 
            exercise in his employment, was a substantial factor in 
 
            aggravating his preexisting arteriosclerosis, which was a 
 
            progressive disease, which was caused by his high blood 
 
            pressure or hypertension, and  which could cause a stroke at 
 
            anytime with or without exertion.  It is noted that in this 
 
            case claimant Dailey who was also performing her regular 
 
            duties, did not testify that she hurt or injured herself, or 
 
            that she strained, or over exerted herself, or that she had 
 
            done any heavy lifting, slipped, fell or anything out of the 
 
            ordinary had occurred.  Claimant Dailey testified that she 
 
            merely bent over and suffered a severe headache.
 
            
 
                 Claimant herself admitted that she did not think this 
 
            was a work injury until quite sometime after it occurred 
 
            (Cl. Dep., pp. 44 & 45).  The fact that claimant did not 
 
            know that she had aneurysms, or that leaning over may or may 
 
            not have caused a subarachnoid hemorrhage, is not conclusive 
 
            as to whether bending over to slide the shipper aggravated 
 
            her preexisting condition.  Nevertheless, the fact that 
 
            claimant could not identify any stress or strain at the time 
 
            the headache occurred is strong evidence that leaning over 
 
            to slide the shipper box was not a substantial factor in 
 
            causing the headache to occur, irrespective of whether or 
 
            not the leaning over precipitated a subarachnoid hemorrhage 
 
            of the basilar aneurysm.
 
            
 
                 When leaning over preparatory to, or in anticipation 
 
            of, sliding a box is compared to the classic and traditional 
 
            workers' compensation cases over the years, which have 
 
            demonstrated when either the commissioner or the supreme 
 
            court has determined that a substantial factor was a 
 
            proximate cause of the subsequent injury, it clearly shows 
 
            that claimant did not prove that her leaning over at the 
 
            time of her headache was a substantial factor in causing 
 
            this injury.  In the other cases, claimant usually performed 
 
            heavy lifting or some form of strenuous exertion, sometimes 
 
            in emergency situations, or experienced severe trauma at the 
 
            time of the injury.  Claimant Dailey's case is readily 
 
            distinguishable from those other cases.
 
            
 
                 John L. Fox, M.D., a board certified neurosurgeon with 
 
            approximately 30 years of experience and with very 
 
            significant scholastic and practice credits to his name did 
 
            not examine claimant but examined several pertinent 
 
            documents pertaining to claimant's history which are in 
 
            evidence in this case and testified for defendants by 
 
            deposition on July 27, 1992.  He said that claimant had 
 
            preexisting aneurysms which were undiagnosed prior to 
 
            November 13, 1989.  He examined the CT scan of July 12, 1988 
 
            and testified that it strongly suggested a basilar aneurysm 
 
            but did not confirm it.  He examined the CT scan of November 
 
            15, 1989 and said it showed the same thing as the earlier 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            scan, which was a suggestion of a probable basilar tip 
 
            aneurysm.  Dr. Fox testified that neither CT scan showed any 
 
            evidence of bleeding (Ex. A, pp. 2-9).  
 
            
 
                 Dr. Fox examined the angiogram performed on November 
 
            15, 1989 and testified that it demonstrated a large basilar 
 
            artery tip aneurysm, an interior communicating artery 
 
            aneurysm and a middle cerebral aneurysm.  He said that the 
 
            angiogram did not show any vasospasms which tended to 
 
            confirm his diagnosis of no bleeding or hemorrhage (Ex. A, 
 
            pp. 9-13).  
 
            
 
                 Dr. Fox further testified that he examined the records 
 
            of Mayo Clinic and Dr. Sundt's operative report as well as 
 
            the CT scans and angiogram and there is no evidence or 
 
            mention of a bleed or hemorrhage (Ex. A, p. 16).  
 
            
 
                 Dr. Fox gave his professional medical opinion that the 
 
            work activities of claimant on November 13, 1989 had no 
 
            causal relationship with the alleged rupture or bleed of the 
 
            preexisting aneurysm(s).  Nor did claimant's job activities 
 
            substantially or materially aggravate or accelerate the 
 
            alleged rupture of the aneurysm(s) (Ex. A, pp. 17 & 18).  He 
 
            stated his opinion was that the aneurysm surgery was the 
 
            natural progression for a medical condition that preexisted 
 
            November 13, 1989 (Ex. A, pp. 18 & 19).  Dr. Fox further 
 
            testified that claimant's job activities would have no 
 
            greater impact on her preexisting aneurysms than 
 
            nonemployment life activities such as straining at a stool, 
 
            engaging in sexual intercourse, lifting a child of 20 pounds 
 
            or taking out garbage weighing 20 pounds (Ex. A, pp. 19 & 
 
            20).  Doctor Fox further opined that the surgery performed 
 
            by Dr. Sundt would have been the same even if there was no 
 
            bleed involved.
 
            
 
                 Dr. Fox further opined that claimant's job activities 
 
            did not cause any permanent impairment or disability because 
 
            there was insufficient bleed to cause the resulting 
 
            conditions (Ex. A, pp. 20 & 21).  Irrespective of whether 
 
            she had a bleed or not he would have recommended the same 
 
            surgical procedure (Ex. A, p. 22).  Dr. Fox further opined 
 
            that the emotional problems that claimant had suffered after 
 
            the surgery were not caused by her work activities because 
 
            he would have to assume she had a subarachnoid hemorrhage 
 
            that led to the surgery and he did not see any evidence of a 
 
            subarachnoid hemorrhage prior to the surgery (Ex. A, pp. 27 
 
            & 28).  
 
            
 
                 Dr. Fox found no neurological defects noted in the 
 
            records based on the mere existence of the aneurysms 
 
            themselves (Ex. A, pp. 28-31).  He did not think lifting 10 
 
            or 20 pounds that you were used to doing would raise your 
 
            blood pressure and precipitate a hemorrhage.  The doctor 
 
            repeated that there was no demonstration of a hemorrhage.  
 
            He agreed that a spinal tap would confirm or rule out a 
 
            hemorrhage but that was not done either in Cedar Rapids in 
 
            1988 or 1989 or at the Mayo Clinic in 1989.  A spinal tap 
 
            would show blood in the spinal fluid if it were done within 
 
            24 hours.  After that it might be a discoloration of the 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            fluid called xanthochromia.  If this was a major hemorrhage 
 
            there would still be some xanthochromia and some red blood 
 
            cells when claimant arrived at the Mayo Clinic (Ex. A, pp. 
 
            35 & 36).  
 
            
 
                 Dr. Fox agreed with Dr. Sundt that the fact no blood is 
 
            seen in a CT scan does not rule out the fact that there 
 
            might not have been a rupture of an aneurysm (Ex. A, p. 36).  
 
            Dr. Fox agreed that vasospasms would not show up on the 
 
            angiogram before the third or fourth day after hemorrhage 
 
            and therefore he would not expect to see vasospasms on the 
 
            angiogram performed on November 15, 1989, for a headache 
 
            which occurred on November 13, 1989 because they would not 
 
            have occurred at that point in time (Ex. A, pp. 38 & 39).
 
            
 
                 From the foregoing evidence, it can be seen that Dr. 
 
            Sundt's opinion that claimant sustained a subarachnoid 
 
            hemorrhage is controverted by Dr. Fox.  Likewise Dr. Sundt's 
 
            opinion that claimant's lifting of a box or heavy box would 
 
            cause a subarachnoid hemorrhage is controverted by Dr. Fox.  
 
            The fact that claimant sustained any impairment or 
 
            disability as a result of these aneurysms is controverted by 
 
            Dr. Fox.
 
            
 
                 Wherefore, it is determined that claimant did not 
 
            sustain an injury arising out of her employment because she 
 
            did not demonstrate that the headaches which occurred on 
 
            November 13, 1989 (1) were anything other than an idiopathic 
 
            condition of aneurysms which had no relationship to her 
 
            employment or work activities, (2) because claimant did not 
 
            demonstrate that any work activity was a substantial factor 
 
            in bringing about or hastening the treatment of her 
 
            condition of preexisting aneurysm(s), (3) because Dr. 
 
            Sundt's opinion that lifting or heavy lifting at work caused 
 
            a subarachnoid hemorrhage is based upon the erroneous 
 
            information that claimant was lifting at the time that the 
 
            headaches occurred and (4) because Dr. Sundt's opinion about 
 
            causal connection between the employment and the injury was 
 
            controverted by Dr. Fox.
 
            
 
                 Therefore, a review of the evidence compels a 
 
            determination that claimant did not sustain an injury 
 
            arising out of her employment with employer.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law these conclusions of law are made:
 
            
 
                 That claimant did not sustain the burden of proof that 
 
            she sustained an injury arising out of her employment.  Iowa 
 
            Code section 85.3(1). McDowell v. Town of Clarksville, 241 
 
            N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 
 
            261 Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 In view of the foregoing finding all the other issues 
 
            in the case are rendered moot.  
 
            
 
                                      ORDER
 
            
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 That no amounts are owed by defendants to claimant.
 
            
 
                 That the costs of this action are charged to claimant 
 
            pursuant to rule 343 IAC 4.33 and Iowa Code section 86.40 
 
            except that the cost of the attendance of the court reporter 
 
            at hearing and the cost of the transcript of the evidence at 
 
            hearing is charged to defendants pursuant to Iowa Code 
 
            section 86.19(1).  
 
            
 
                 That defendants file any claim activity reports 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. John L. Riccolo
 
            Attorney at Law
 
            Suite 1140 - The Center
 
            425 Second Street, S.E.
 
            Cedar Rapids, IA  52401
 
            
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            Mr. Scott E. McLeod
 
            Attorney at Law
 
            526 Second Ave. S.E.
 
            P.O. Box 2457
 
            Cedar Rapids, IA  52406-2457
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                       1100, 1108.50, 1108.20, 1401,                
 
                                       1402.20, 1402.30, 1402.40,
 
                                       1402.60, 2204, 2206, 2902
 
                                       Filed April 9, 1993
 
                                       Walter R. McManus, Jr.
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LINDA K. DAILEY,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                            File No. 947123
 
            L'EGGS PRODUCTS, INC.,   
 
                                         A R B I T R A T I O N
 
                 Employer, 
 
                                            D E C I S I O N
 
            and       
 
                      
 
            THE TRAVELERS INSURANCE CO,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.   
 
            ___________________________________________________________
 
            
 
            1100, 1108.50, 1108.20, 1401, 1402.20, 1402.30, 1402.40, 
 
            1402.60, 2204, 2206, 2902
 
            
 
            Claimant leaned over in her employer's van to slide a box 
 
            and sustained an excruciating headache.  She was diagnosed 
 
            as having three aneurysms.  Surgery was performed at Mayo 
 
            Clinic.  Claimant continued to have severe physical and 
 
            emotional problems after the surgery in spite of about 
 
            $200,000 worth of treatment.  
 
            It was determined that claimant's alleged injury did not 
 
            arise out of her employment because it was an idiopathic 
 
            condition peculiar and personal to her own health condition 
 
            that predated the alleged injury.  Cites to Larson, Work 
 
            Comp and Supreme Court Cases.
 
            It was determined that claimant's work and more specifically 
 
            leaning over to slide the box was not a substantial factor 
 
            in bringing about the alleged injury and therefore was not a 
 
            proximate cause of the aggravation of her preexisting 
 
            condition.  Cites to several traditional supreme court cases 
 
            used in the blurbs and summaries of those decisions are used 
 
            to illustrate what a substantial factor is and to show why 
 
            none occurred in this case.
 
            It was determined that the opinion of the treating surgeon 
 
            favorable to claimant was not acceptable because it was 
 
            based on an erroneous understanding of the facts.
 
            It was determined that claimant's medical expert, the 
 
            treating surgeon, was controverted by defendants' medical 
 
            expert who was also a highly qualified neurosurgeon.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            PATRICIA M MARLENEE,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 947156
 
            STEWART'S, INC.,              :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CRUM AND FORSTER,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Patricia 
 
            Marlenee against her former employer Stewart's, Inc. wherein 
 
            she seeks permanent partial disability compensation.  The 
 
            case was heard at Council Bluffs, Iowa, on January 5, 1994.  
 
            The evidence consists of testimony from Patricia Marlenee, 
 
            Anthony M. Romano, M.D. and Gail Leonhart.  The record also 
 
            contains joint exhibits A, claimant's exhibits 1 through 7 
 
            and defendants' exhibits A, B and C.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Patricia Marlenee is a 44-year-old woman who throughout 
 
            most of her adult life has worked as a cosmetologist or 
 
            cosmetology instructor.  The work placed her in beauty 
 
            salons where she was exposed to airborne inhalants such as 
 
            hairspray and the fumes from permanent solutions, tints and 
 
            other hair care chemicals.  Claimant had reactions and 
 
            problems with those substances when she was attending 
 
            cosmetology school and has continued to have problems 
 
            subsequently.  Over the years she has been diagnosed with 
 
            conditions such as sinusitis and rhinitis on a number of 
 
            occasions.  As time has passed, the frequency with which she 
 
            has sought medical care for her condition has increased.  
 
            
 
                 According to Anthony M. Romano, M.D., claimant's family 
 
            physician for approximately the past 20 years, claimant has 
 
            underlying sensitivity to the substances used at beauty 
 
            salons.  She has underlying sinusitis, conditions which are 
 
            basically the same as basil motor rhinitis.  Claimant has 
 
            probably had the disease or disease condition for years and 
 
            that the disease is aggravated by the exposures from the 
 
            beauty salon workplace.  He stated that the exposures cause 
 
            a temporary aggravation and have not produced any permanent 
 
            physical impairment.  He found that there was a definite 
 

 
            
 
            Page   2
 
            
 
            
 
            causal relationship between the exposure and the 
 
            aggravations but no relationship between the exposure and 
 
            the underlying disease condition.  When asked to provide an 
 
            assessment of claimant's disability on the basis of her age, 
 
            work experience, qualifications, and other matters which are 
 
            commonly considered when assessing industrial disability, he 
 
            assessed no part to any physical disability.  In accordance 
 
            with his statement that she would feel better if she did not 
 
            work where she was exposed to those chemicals and his advise 
 
            that she should avoid such exposure.  Dr. Romano stated that 
 
            claimant's underlying problem will not improve but that she 
 
            will feel better if she avoids exposure to the irritants.  
 
            Dr. Romano felt that claimant's problem was clear-cut and he 
 
            found no need to send her to an allergist.  
 
            
 
                 Claimant was sent to an allergist, Stanley L. Davis, 
 
            M.D., in late 1990.  Dr. Davis concluded that claimant did 
 
            not have allergies in the classical sense, as shown by skin 
 
            antibody testing.  He found that she had a significant 
 
            vasomotor rhinitis which was similar to allergy but which 
 
            was triggered by nonspecific irritants rather than organic 
 
            antigens.  Dr. Davis did not consider claimant to be 
 
            disabled because of her job as a beautician.  (defendants' 
 
            exhibit A).
 
            
 
                 Claimant was evaluated by Paul From, M.D., who 
 
            concluded that it did not appear to him that claimant would 
 
            be more sensitive to agents to which she would be exposed at 
 
            work than she would in normal life because of her extensive 
 
            list of sensitivities.  (def. ex. B, page 5).  Use of 
 
            records from claimant's brother detracts greatly from the 
 
            probative value of Dr. From's report.
 
            
 
                 The record of this case fails to contain any expert 
 
            medical opinion which finds that any disability which 
 
            currently afflicts Patricia Marlenee resulted in any 
 
            significant part from her exposure to chemicals in her 
 
            workplace.  To the contrary, claimant appears to be 
 
            sensitive to a number or irritants, many of which are not 
 
            found in the workplace.  There is some indication in the 
 
            record that her degree of sensitivity may have increased 
 
            over the years but there is nothing in the record which 
 
            shows that any such increased sensitivity resulted in any 
 
            significant part from exposures at the workplace rather than 
 
            from exposures of everyday life to other irritants or from 
 
            some naturally occurring change in her body.  
 
            
 
                 In short, while the evidence in this case shows that 
 
            the exposures from claimant's workplace aggravated her 
 
            underlying condition, the evidence fails to show that it is 
 
            probable that those exposures caused any permanent change in 
 
            claimant's underlying condition or any permanent disability 
 
            of any type or nature.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 

 
            
 
            Page   3
 
            
 
            
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Aggravation of a preexisting condition is one manner of 
 
            sustaining a compensable injury.  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).
 
            
 
                 Iowa workers' compensation law distinguishes 
 
            occupational diseases from work injuries.  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 
 
            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 all of 
 

 
            
 
            Page   4
 
            
 
            
 
            the 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).
 
            
 
                 In this case claimant seeks a recovery under chapter 85 
 
            and, alternatively, under chapter 85A.  Since section 
 
            85.61(4) provides that, by definition, injury excludes any 
 
            condition which is an occupational disease, it is necessary 
 
            to first consider this case as an occupational disease 
 
            claim.  
 
            
 
                 Claimant's underlying diseases of rhinitis and 
 
            sinusitis have not been shown to have been causally related 
 
            to exposures in her workplace.  The evidence clearly shows 
 
            that exposures in the workplace aggravate her underlying 
 
            condition and cause it to become symptomatic.  The exposures 
 
            are not shown, however, to have caused its onset.  On the 
 
            second test, there is some reason to believe, though no 
 
            definite evidence, that the exposure to hairsprays and hair 
 
            care chemicals is more prevalent in a beauty salon then in 
 
            everyday life or occupations.  Anyone who has walked into a 
 
            beauty salon should realize that that is probably the case.  
 
            There is, however, no evidence in the record of this case 
 
            that there is any peculiar relationship between exposure to 
 
            hairspray chemicals and contraction of the disease which 
 
            afflicts claimant.  In view of the lack of that peculiar 
 
            relationship and the lack of a causal relationship between 
 
            the exposure and the condition itself, this case does not 
 
            provide any recovery to the claimant under chapter 85A of 
 
            the Code because the condition has not been shown to be an 
 
            occupational disease.
 
            
 
                 When viewed as an injury, it is clear that claimant has 
 
            had a number of temporary injuries whenever the exposure 
 
            aggravated her underlying condition and caused it to be 
 
            sufficiently symptomatic to be disabling.  At the 
 
            commencement of the hearing it was expressly stated that no 
 
            claim was being made for any temporary total disability or 
 
            healing period.  The only claim made was for permanent 
 
            disability.  The physicians are all in agreement in that 
 
            there is no evidence that the exposures have produced any 
 
            permanent disability.  There is no showing in the record 
 
            that the exposures have produced any permanent change in the 
 
            claimant's health or body.  Simply stated, she is sensitive 
 
            to the hair care chemicals as well as numerous other 
 
            chemicals and irritants.  When she is exposed to any of 
 
            those irritants her symptoms become pronounced.  When the 
 
            exposure ends, the symptoms subside.  The fact that medical 
 
            care is sometimes necessary to cause the symptoms to resolve 
 
            does not change the character of the aggravation from 
 
            temporary into permanent.
 
            
 
                 It is therefore concluded that Patricia Marlenee has 
 
            failed to prove that she is entitled to any recovery for 
 
            permanent partial disability under chapter 85 of the Code.
 

 
            
 
            Page   5
 
            
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that claimant take nothing from 
 
            this proceeding.
 
            
 
                 It is further ordered that each party is responsible 
 
            for their own costs incurred in participating in this 
 
            action.
 
            
 
                 Signed and filed this ____ day of January, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Drew H. Kouris
 
            Attorney at Law
 
            501 S Main #2C
 
            Council Bluffs, Iowa  51503
 
            
 
            Mr. Harry Dahl
 
            Attorney at Law
 
            974 - 73rd St, STE 16
 
            Des Moines, Iowa  50312
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
                                          1108.30 1108.40 1402.30 
 
                                          1402.40 2203 2205 2206
 
                                          Filed January 14, 1994
 
                                          Michael G. Trier
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            PATRICIA M MARLENEE,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 947156
 
            STEWART'S, INC.,    
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            CRUM AND FORSTER,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1108.30 1108.40 1402.30 1402.40 2203 2205 2206
 
            Claimant had underlying sinusitis and rhinitis and 
 
            sensitivity to a number of nonspecific irritants.  Her work 
 
            as a cosmetologist may have caused a number of recurrent 
 
            aggravations which required medical care.  All the medical 
 
            evidence indicated that those were simply temporary 
 
            aggravations.  Claimant held entitled to no recovery for 
 
            permanent disability.
 
            Claimant's case analyzed as occupational disease.  In view 
 
            of the lack of showing of the required causal connection and 
 
            lack of the peculiar relationship between the exposure and 
 
            the condition that the condition claimant is afflicted with 
 
            it is not an occupational disease.
 
            
 
 
            
 
      
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            ALMA SLAUTER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 947359
 
            GREEN THUMB, INC.,            :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            HOME INSURANCE COMPANY,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Alma Slauter, against her former employer, 
 
            Green Thumb, Inc., and its insurance carrier, Home Insurance 
 
            Company, defendants.  The case was heard on July 15, 1993 at 
 
            the office of the Industrial Commissioner in Des Moines, 
 
            Iowa.  The record consists of the testimony of claimant.  
 
            The record also consists of the testimony of claimant's 
 
            spouse, John Slauter; the Lamoni Public Librarian, Barb 
 
            Huston; and the testimony of a rehabilitation counselor, 
 
            retained by defendants, Patricia Conway.  Additionally, the 
 
            record is comprised of claimant's exhibits 1 and 2, and 
 
            defendants' exhibits A through J.
 
            
 
                                      ISSUES
 
            
 
                 The issues to be determined are:  1) whether there is a 
 
            causal relationship between the work injury and any 
 
            permanent disability; 2) whether claimant is entitled to any 
 
            healing period or to any permanent partial disability 
 
            benefits; 3) whether claimant is entitled to reimbursement 
 
            for certain expenses incurred as a result of an independent 
 
            medical examination pursuant to section 85.39 of the Iowa 
 
            Code, as amended; and 4) whether claimant served timely 
 
            notice pursuant to section 85.23 of the Iowa Code, as 
 
            amended.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Claimant is 66 years old.  She is married with three 
 
            adult children.  Claimant completed the ninth grade.  She 
 
            terminated her formal education after the ninth grade 
 
            because of poor health.  At the time of her termination, 
 
            claimant was in the tenth grade.  Claimant never attempted 
 
            to obtain her GED.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 For most of her life claimant has worked long and hard  
 
            hours.  She is a typical example of the Iowa farm wife who 
 
            is expected to run the home, raise the children and assist 
 
            on the family farm.  
 
            
 
                 In 1958 claimant took on the added responsibility of 
 
            working outside of the home.  She commenced employment with 
 
            Graceland College in the food service division.  There she 
 
            progressed to the positions of head cook and production 
 
            manager of the food service.  Her employment involved 
 
            strenuous physical labor.  She was required to lift heavy 
 
            kettles and pans in preparation of the upcoming meal.  
 
            Claimant testified she served about one thousand people per 
 
            meal.  Her duties included managing the production of food, 
 
            managing the amounts to serve and managing the necessary 
 
            personnel who handled the tasks.  Claimant terminated her 
 
            position at the college in 1975.  At the time of her 
 
            termination, claimant was paid the paltry sum of $2.55 per 
 
            hour.
 
            
 
                 Claimant next owned and operated her own fabric store, 
 
            Sue's Golden Thimble.  She maintained the shop from 1976 
 
            through 1982.  She sold fabrics, ready to wear clothing and 
 
            jewelry.  Her duties reflected those of every other 
 
            shopkeeper.  She stocked shelves, performed bookkeeping, 
 
            waited on customers, hired and fired personnel and ordered 
 
            goods.  Claimant sold the store in 1982.
 
            
 
                 Claimant returned to the family farm where she assisted 
 
            her husband in the daily operation of the business.  Her 
 
            duties included operating farm machinery, plowing, disking, 
 
            feeding cattle and mending fences.  She remained employed on 
 
            the farm for two years.
 
            
 
                 Next claimant and her husband purchased a grocery store 
 
            in Blythedale, Missouri.  The every day operation of the 
 
            business was primarily the responsibility of claimant.  She 
 
            had three part-time employees to assist her.  However, most 
 
            of the employment responsibilities fell upon claimant's 
 
            shoulders.  After one year claimant sold the business.  The 
 
            work, claimant testified, "was too hard, and not feasible."
 
            
 
                 On November 17, 1986, claimant commenced employment 
 
            with Green Thumb, Inc., a non-profit organization which was 
 
            initiated by the National Farmers Union.  The organization 
 
            was established as a vehicle for retraining senior citizens, 
 
            especially farmers, who had been displaced from the farm.  
 
            Only certain individuals qualify as employees.
 
            
 
                 The employees are paid the minimum wage and they 
 
            generally work part-time hours.  They are placed with 
 
            non-profit entities.  Applicants are eligible if they meet 
 
            certain financial criteria.
 
            
 
                 Claimant qualified for employment with defendant.  She 
 
            started her position on the day after her sixtieth birthday.  
 
            Claimant was hired to work 20 hours per week.  She received 
 
            on-the-job training.  Her first assignment was at the 
 
            Central DeCatur School System.  She was employed as an 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            elementary school library clerk.  She processed books, typed 
 
            book cards, mended books, did occasional typing, shelved 
 
            books and assisted students with checking out books from the 
 
            school library.  Claimant testified she enjoyed the 
 
            position.  She worked Monday through Thursday for five hours 
 
            per day.  Claimant worked at the school for one year and one 
 
            summer.
 
            
 
                 After her tour of duty at the school, claimant was 
 
            transferred to the Department of Employment Services, 
 
            Division of Job Service in Lamoni, Iowa.  She was required 
 
            to file, type, and administer tests to customers.  Claimant 
 
            worked at the office from September of 1987 through December 
 
            of 1987.  The office was closed for financial reasons and 
 
            claimant was transferred to the Lamoni City Library.
 
            
 
                 Claimant commenced her duties at the Lamoni Public 
 
            Library on December 8, 1987.  She was assigned the position 
 
            of part-time Library Clerk.  Again, she was compensated at 
 
            the then minimum wage rate.  She worked four days per week 
 
            and five hours per day.  
 
            
 
                 Claimant reported to the head librarian or else to her 
 
            assistant.  Claimant's duties were similar to the ones she 
 
            had at the elementary school.  Claimant checked books back 
 
            into the library, shelved books, mended books, assisted 
 
            customers, provided information, checked books out of the 
 
            library, collected fines, prepared new books for shelving 
 
            and performed other tasks as assigned.
 
            
 
                 Claimant remained employed through Green Thumb, Inc., 
 
            until April 3, 1990.  Since that time, claimant has only 
 
            been employed by Decatur County as an election official on 
 
            two separate occasions.  She has not looked for any other 
 
            employment.  
 
            
 
                 While claimant was working at the city library, she 
 
            began to experience difficulties with her upper extremities.  
 
            She testified that she encountered gradual pain in her 
 
            wrists and hands.  She also experienced pain in the regions 
 
            of her elbows.  Claimant provided verbal notice of the 
 
            difficulties to both the then head librarian, Laura 
 
            Williams, and to the assistant librarian, Paula Sandelson.  
 
            Claimant also provided verbal notice to her supervisor at 
 
            Green Thumb, Inc., Ernestine Judkins. 
 
            
 
                 Paula Sandelson, the assistant librarian referred 
 
            claimant to Charles Manuel, D.C.  He treated claimant on 
 
            several occasions.  Because his notes were nearly impossible 
 
            to read, this deputy was unable to determine the diagnosis 
 
            he had rendered.
 
            
 
                 Claimant sought chiropractic care for her upper 
 
            extremities from C. E. Tindel, D.C.  Dr. Tindel engaged in 
 
            cervical manipulation.  (Cl. Ex., p. 12)  He treated 
 
            claimant for "headaches, pain in neck, shoulders & hands."  
 
            (Cl. Ex., p. 13)  Claimant experienced little relief from 
 
            the chiropractic manipulation.  
 
            
 
                 Since claimant received little relief from the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            chiropractic treatment, the supervisor sent claimant to the 
 
            Patel Medical Clinic in Mt. Ayr, Iowa.  In his report of 
 
            November 20, 1990, Bhalchandra R. Patel, M.D., opined:
 
               Mrs. Slauter has been seen by us at Patel Medical Clinic 
 
            in April 1990.  She presented with pain in both hands and 
 
            our impression was that she had bilateral carpal tunnel 
 
            syndrome.  And therefore, she was sent to Neurologist, Dr. 
 
            Joseph Doro.  Please find enclosed letter of Dr. Doro's 
 
            consultation.
 
               
 
               Dr. Doro's assessment was of bilateral ulnar nerve 
 
            entrapment at elbow.  And electrophysiologically, Dr. Doro 
 
            couldn't demonstrate evidence of bilateral carpal tunnel 
 
            syndrome, though there was strong clinical possibility of 
 
            bilateral carpal tunnel syndrome.
 
               
 
               We had discussed these findings with Mrs. Slauter and had 
 
            suggested that she have release of ulnar nerves first, and 
 
            if there are no improvements, then bilateral carpal tunnel 
 
            release.  But, the patient had said that she had more pain 
 
            over wrists and she wanted to have carpal tunnel release 
 
            first.
 
               
 
               This was discussed in June 1990, and we had decided to 
 
            give a trial with anti-inflammatory medications for 
 
            reasonable time.  Her symptoms did not improve with 
 
            conservative management, and as her symptoms were worse on 
 
            right side, we decided to operate on right side first.  
 
            Surgery was performed on September 11, 1990.
 
               
 
               There is definite relationship between her work leading 
 
            to carpal tunnel syndrome, which was evident clinically.
 
               
 
               Normal recuperation time after surgery is 4 to 6 weeks.  
 
            And after surgery Mrs. Slauter developed other symptoms like 
 
            pain in legs, dyspnea and chest pain, which is not related 
 
            to her surgery.  She has been sent to Cardiologist, and 
 
            Cardiologist so far has not found any substantial cardiac 
 
            problem.
 
            
 
            As Mrs. Slauter continues to have above symptoms, I have 
 
            advised her to see Rheumatologist.  She has an appointment 
 
            to see Dr. Finan on December 4, 1990.
 
               
 
               At this point in time, I do not think Mrs. Slauter has 
 
            any permanent impairment as a result of injury.  In my 
 
            opinion, her present symptoms are not related to carpal 
 
            tunnel syndrome.
 
            
 
            (Cl. Ex., pp. 20 & 21)
 
            
 
                 Dr. Patel performed the right carpal tunnel surgery in 
 
            September of 1990.  Subsequent to the surgery, claimant 
 
            experienced difficulties with both her upper and her lower 
 
            extremities.  Her surgeon referred claimant to the Mercy 
 
            Arthritis Center in Des Moines.  Michael J. Finan, M.D., 
 
            conducted an examination of claimant in December of 1990.  
 
            Among other findings, Dr. Finan opined the following 
 
            relative to claimant's wrists:
 
            
 
                 Neck had fair range of motion.  Both shoulders had 
 
                 good, comfortable range of motion.  No synovitis 
 
                 of the elbows or wrists.  There is a well-healed 
 
                 scar over the volar aspect of the right wrist from 
 
                 prior carpal tunnel surgery.  No evidence of 
 
                 infection.  Both wrists had good range of motion.  
 
                 There was minimal degenerative changes in the DIP 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 joints.  The other small joints of the hands were 
 
                 normal.  No active synovitis....  Pinprick exam 
 
                 was normal, including both hands.  Both toes were 
 
                 downgoing.  With the Phalen's maneuver, she 
 
                 complained of a little numbness in both thumbs.  
 
                 Tinel's was negative on the right and equivocal on 
 
                 the left.
 
            
 
                     ...
 
            
 
                 3. Bilateral hand pain.  It is not clear that this 
 
                    is entirely explained by carpal tunnel syndrome 
 
                    or even possible ulnar nerve entrapment 
 
                    syndrome.
 
            
 
                 4. Positive rheumatoid factor....
 
            
 
                     ...
 
            
 
                 3. Because of her complaints of upper extremity 
 
                    symptoms, one might want to proceed with repeat 
 
                    EMG/NCV's and even have the situation reviewed 
 
                    by a neurosurgeon or orthopaedic surgeon to see 
 
                    if he feels her symptoms are secondary to nerve 
 
                    entrapment syndrome.  I do not find 
 
                    inflammatory arthritis as an explanation for 
 
                    her hand pain.
 
            
 
            (Cl. Ex., p. 57-59)
 
            
 
                 Joseph M. Doro, D.O., conducted an EMG with respect to 
 
            claimant's problems with the upper extremities.  In his 
 
            report of April 26, 1990, Dr. Doro opined:
 
            
 
                 Essentially, she does have slowing across the 
 
                 elbow of both ulnar velocities, which would be 
 
                 consistent with an ulnar neuropathy at that point.  
 
                 She does have some evidence of minor chronic 
 
                 denervation int [sic] he ulnar innervated muscles 
 
                 of the hand.
 
            
 
                 Clinically, the description I get of her pain is 
 
                 one of both ulnar involvement, and also what 
 
                 sounds like median involvement, with carpal 
 
                 tunnel, however, I was not able to demonstrate, 
 
                 electrophysiologically, evidence of a carpal 
 
                 tunnel, although clinically that still is a strong 
 
                 consideration.
 
            
 
            (Cl. Ex., p. 25)
 
            
 
                 As aforementioned, claimant had a right carpal tunnel 
 
            release.  Because claimant did not believe that she had 
 
            achieved a good result, she refused to have any more 
 
            surgeries on her upper extremities.  Nevertheless, claimant 
 
            experienced continued pain in both of her upper extremities.
 
            
 
                 Martin S. Rosenfeld, D.O., performed an independent 
 
            medical examination of claimant in October of 1991.  He 
 
            authored a report dated October 22, 1991.  In his report he 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            opined:
 
            
 
                 At this time she has negative Tinel and Phalen 
 
                 signs over the carpal tunnels bilaterally.  She 
 
                 does have tingling when pressing on the ulnar 
 
                 nerves at the elbows bilaterally.  She does have 
 
                 positive Grind tests bilaterally.
 
            
 
                 X-rays of both hands are taken showing moderate to 
 
                 moderately severe basal thumb arthritis 
 
                 bilaterally.
 
            
 
                 Impression:  1) Bilateral basal thumb arthritis.                    
 
                    2) Bilateral ulnar nerve entrapment                       
 
                    neuropathy.
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                       3) Status post-right carpal tunnel                          
 
            release.
 
            
 
                 Patient denies any symptoms prior to starting the 
 
                 job as a librarian and I would feel that her 
 
                 symptoms are most probably due to cumulative 
 
                 effect from over use of her elbows, wrists, and 
 
                 thumbs.  I would feel that the basal thumb 
 
                 arthritis probably was present but was aggravated 
 
                 by the working conditions.
 
            
 
                 My recommendations of treatment at this time would 
 
                 include bilateral ulnar nerve transpositions at 
 
                 the elbow and probably injections to the basal 
 
                 thumb joints with some Cortisone to see if this 
 
                 will not get rid of her pain.
 
            
 
                 At the present time I do, indeed, feel that the 
 
                 patient has a permanent physical impairment to 
 
                 each upper extremity.  I believe that the basal 
 
                 thumb arthritis and aggravation of same would 
 
                 cause a five ( 5%) percent impairment to each 
 
                 upper extremity and that the persistent ulnar 
 
                 neuropathy would cause a ten (10%) percent 
 
                 impairment to each upper extremity.  I feel that 
 
                 this means that she has fifteen (15%) percent 
 
                 impairment to the right upper extremity and 
 
                 fifteen (15%) percent to the left upper extremity.  
 
                 I would feel that corrective surgery on the ulnar 
 
                 nerves and treatment to the basal thumb joints 
 
                 should diminish this impairment if it were to be 
 
                 carried out.
 
            
 
            (Cl. Ex., p. 69-70)
 
            
 
                 In April of 1992 Tom Bower, LPT, conducted a functional 
 
            capacity evaluation.  He summarized his findings in his 
 
            report of April 29, 1992.  He determined that:
 
            
 
                 SUMMARY
 
            
 
                 This patient, in my opinion, is perceiving herself 
 
                 as being unable to do virtually anything.  We find 
 
                 inconsistencies in all the grip measurements that 
 
                 have been taken today, using the various pieces of 
 
                 equipment.  The 0 grip strength display with the 
 
                 Preston hand dynamometer in all positions of 
 
                 spread, is generally considered to be one of the 
 
                 criteria used in identifying symptom magnifiers.  
 
                 I feel very strongly that in fact is occurring.  
 
                 Heart rates certainly do not appear to be 
 
                 proportionate to the pain levels described by this 
 
                 patient.
 
            
 
                 I am somewhat concerned, based on the tingling 
 
                 that the patient is experiencing in her little and 
 
                 ring fingers, specifically the ulnar distribution, 
 
                 that we could have some ulnar nerve involvement 
 
                 either proximal or distally.  Since no EMG studies 
 
                 have been done following the surgery, it might be 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 wise to repeat those studies, not only to assess 
 
                 the ulnar nerve, but to assess the status of the 
 
                 median nerve to see if there is any residual 
 
                 changes that have occurred from the surgery.
 
            
 
                 I am not quite certain as to what to make of the 
 
                 Roo's maneuver today since these clinical findings 
 
                 are certainly not totally consistent with thoracic 
 
                 outlet, but may well be mildly suggestive of that 
 
                 diagnosis.
 
            
 
                 I find it extremely unusual the patient is able to 
 
                 lift 20 pounds from a floor to waist position when 
 
                 she is unable to generate any grip on the hand 
 
                 dynamometer or certainly minimal grip on the BTE 
 
                 work simulator.  All these findings appear to be 
 
                 completely inconsistent from test to test.
 
            
 
                 I believe that there is a high propensity for 
 
                 symptom magnification being present here, and 
 
                 certainly exclusion of that can be made perhaps in 
 
                 repeating the EMG studies to rule out any old or 
 
                 new pathology.
 
            
 
            (Cl. Ex., p. 75-76)
 
            
 
                 Several days later, Jack E. Reynolds, M.S., C.R.C., a 
 
            vocational expert retained by claimant prepared a vocational 
 
            assessment.  He drafted a report dated May 4, 1992.  His 
 
            opinions were summarized as follows:
 
            
 
                 Alma Dean Slauter A (sic) 65 year old Librarian 
 
                 for Green Thumb, Inc., suffered a work related 
 
                 injury resulting from the repetitive nature of her 
 
                 work.  Ms. Slauter began noticing pain in both 
 
                 hands on December 1, 1989.  This pain progressed 
 
                 until she left work on April 13, 1990, when she 
 
                 could no longer perform her job requirements.
 
            
 
                 Ms. Slauter underwent right Carpal Tunnel surgery 
 
                 on September 9, 1990, however, her condition has 
 
                 not improved.  Both Dr. Doro and Dr. Rosenfeld 
 
                 have diagnosed her condition as Bilateral Ulnar 
 
                 Nerve Entrapment.
 
            
 
                 Ms Slauter continues to have pain and weakness in 
 
                 both hands.  She is unable to sustain any gripping 
 
                 activity or more than an occasional use of her 
 
                 hand without experiencing considerable pain.  She 
 
                 is precluded from such activities as sewing, 
 
                 quilting, painting, canning, opening jars, 
 
                 vacuuming or using a keyboard.
 
            
 
                 Ms. Slauter had hoped to keep working until she 
 
                 was 70 years of age.  She has not attempted to 
 
                 find work because she is unable to sustain any use 
 
                 of her hands without having severe pain.
 
            
 
                 Ms. Slauter is unable to do her old job as a 
 
                 Librarian due to the job requirements of handling 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 books, reshelving books, rebinding books, and 
 
                 using a keyboard.  She could not perform any of 
 
                 her previous work due to these jobs requiring more 
 
                 than an occasional use of her hands with such 
 
                 activities as handling pots and pans, supplies, 
 
                 fabric, groceries, and operating cash registers.  
 
                 While much of Ms. Slauter's past work was in 
 
                 supervision, these jobs were primarily hands-on 
 
                 supervisory responsibilities requiring her to 
 
                 participate in caring (sic) out physical 
 
                 activities.
 
            
 
                 With Ms. Slauter's inability to sustain activity 
 
                 with her hands, considering her age, education and 
 
                 work experiences; she is not capable of performing 
 
                 any of her past work or transfer skills to other 
 
                 jobs in a competitive job market.  These factors 
 
                 would also severely limit any capacity for 
 
                 retraining.  Thus Ms. Slauter presents a poor 
 
                 candidate for either successful job placement or 
 
                 retraining.  She could be considered totally 
 
                 disabled from a vocational rehabilitation 
 
                 standpoint.
 
            
 
            (Cl. Ex., p. 79-80)
 
            
 
                 In June of 1992, claimant was evaluated by Dr. Doro.  
 
            In his report of June 10, 1992, Dr. Doro wrote:
 
            
 
                 The patient continues to have difficulties with 
 
                 pain and it is mainly in her hands.  It is in a 
 
                 diffuse fashion surrounding the whole areas, 
 
                 although, occasionally the small and ring finger 
 
                 will be more affected that other fingers, and 
 
                 other times there is no difference between the two 
 
                 sides and they are both equally symptomatic.
 
            
 
                 She feels that the pain is worse whenever she does 
 
                 any type of activity.  At night, it bothers her 
 
                 considerably and will prevent her from sleeping.
 
            
 
                 In speaking with her about further evaluation and 
 
                 treatment, as you know, she is quite reluctant to 
 
                 undergo anything further.  She did not want to 
 
                 have another EMG done today.  She was quite 
 
                 insistent upon that.
 
            
 
                 She also is not in favor of having further surgery 
 
                 in view of the problems that she had after the 
 
                 original one.
 
            
 
                 On her examination at this time, her general 
 
                 neurologic examination is normal.
 
            
 
                 Concentrating on her arms and hands, she has 
 
                 diffuse weakness of the distal muscles of her 
 
                 hands.  This is both the ulnar, median and radial 
 
                 distribution.  The weakness that she has seems to 
 
                 be more of a break away type of weakness secondary 
 
                 to pain which is generated whenever she tries to 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 do anything with her hands as opposed to true loss 
 
                 of muscle power.  For example, I was able to 
 
                 increase her grip by having her try to overcome 
 
                 the pain, even just for a few seconds.
 
            
 
                 Sensation shows areas of hypesthesia.  There were 
 
                 also areas of almost dysesthesia in the hands as 
 
                 well.
 
            
 
                 The muscle stretch reflexes are equal and 
 
                 symmetric.  There were no pathologic reflexes.  
 
                 There were food finger flexor reflexes 
 
                 bilaterally.
 
            
 
                 Phalen's maneuver does reproduce the patient's 
 
                 symptoms.  She is also diffusely tender to 
 
                 percussion over the wrists, both anteriorly and 
 
                 posteriorly.
 
            
 
                 In watching her use her hands spontaneously, she 
 
                 did have difficulty with performing fine finger 
 
                 movements.
 
            
 
                 In reviewing the patient's history and her exam, I 
 
                 would concur with Dr. Rosenfeld's feeling of 15 
 
                 percent physical impairment rating due to the 
 
                 patient's difficulties with her ulnar neuropathies 
 
                 as well as her prior surgery and her present 
 
                 symptoms.
 
            
 
                 I did raise with her the question of having 
 
                 further evaluation and potential treatment, 
 
                 however, she is quite frustrated by everything 
 
                 that she has gone through and does not want to 
 
                 proceed with more of an evaluation or treatment at 
 
                 this time.
 
            
 
            (Cl. Ex., p. 29-30)
 
            
 
                 Defendants referred claimant to Excel Work Performance 
 
            Center for a second functional capacity evaluation.  The 
 
            evaluation took place on February 24, 1993.  Randy Pressler, 
 
            P.T., conducted the evaluation.  He opined that his test 
 
            results were invalid because, in his opinion, claimant did 
 
            not exert maximus effort.   The evaluator opined that 
 
            claimant was functioning in the sedentary physical demand 
 
            level.  (Cl. Ex., p. 117)
 
            
 
                 Defendants also retained the services of Patricia 
 
            Conway of Rehabilitation Professionals, Inc., to evaluate 
 
            claimant for possible employment.  She was not retained to 
 
            engage in job placement.  Ms. Conway testified that claimant 
 
            had transferable skills.  She also testified that claimant, 
 
            per the functional capacity evaluation was capable of 
 
            engaging in sedentary type jobs, and that claimant could 
 
            carry up to 12 pounds.  Ms Conway testified that claimant 
 
            had transferable skills and that she could engage in the 
 
            following fields of employment:  customer  service work, 
 
            telephone solicitation, so long as claimant uses a headset, 
 
            library clerk, restaurant hostess, and cashier, in a 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            convenience store provided that claimant did not exceed her 
 
            lifting restrictions.  The expert testified that claimant 
 
            had told her she was moving to Missouri, and that she did 
 
            not want to find employment until she had moved out of 
 
            state.  Ms. Conway also testified there were part-time 
 
            positions available to claimant at the minimum wage rate up 
 
            to $5.50 per hour.  Ms. Conway opined that claimant could 
 
            still perform the duties of a library clerk provided 
 
            claimant limited the number of books she would carry at one 
 
            time.
 
            
 
                 As of April 27, 1990, claimant was notified that she no 
 
            longer qualified for a position with defendant-employer.  
 
            The basis for the termination was not due to claimant's 
 
            physical condition.  Rather, she earned more income than 
 
            what the federal government would allow an individual to 
 
            earn in order to qualify for the program. 
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 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. Procedure 
 
            14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 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).
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
     
 
            
 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            Apportionment of disability between a preexisting condition 
 
            and an injury is proper only when some ascertainable portion 
 
            of the ultimate industrial disability existed independently 
 
            before an employment-related aggravation of disability 
 
            occurred.  Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); 
 
            Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 
 
            1984).  Hence, where employment is maintained and earnings 
 
            are not reduced on account of a preexisting condition, that 
 
            condition may not have produced any apportionable loss of 
 
            earning capacity.  Bearce, 465 N.W.2d at 531.  Likewise, to 
 
            be apportionable, the preexisting disability must not be the 
 
            result of another injury with the same employer for which 
 
            compensation was not paid.  Tussing v. George A. Hormel & 
 
            Co., 461 N.W.2d 450 (Iowa 1990).
 
            
 
                 The burden of showing that disability is attributable 
 
            to a preexisting condition is placed upon the defendant.  
 
            Where evidence to establish a proper apportionment is 
 
            absent, the defendant is responsible for the entire 
 
            disability that exists.  Bearce, 465 N.W.2d at 536-37; 
 
            Sumner, 353 N.W.2d at 410-11.
 
            
 
                 The first issue to address is the issue of notice 
 
            pursuant to section 85.23 of the Iowa Code, as amended.  The 
 
            relevant portion of the section provides that:
 
            
 
                 Unless the employer or the employer's representative 
 
            shall have actual knowledge of the occurrence of an injury 
 
            received within ninety days from the date of the occurrence 
 
            of the injury, or unless the employee or someone on the 
 
            employee's behalf or a dependent or someone on the 
 
            dependent's behalf shall give notice thereof to the employer 
 
            within ninety days from the date of the occurrence of the 
 
            injury, no compensation shall be allowed.
 
            
 
                 Failure to give notice is an affirmative defense which 
 
            the employer must prove by a preponderance of the evidence.  
 
            DeLong v. Highway Commission, 229 Iowa 700, 295 N.W. 91 
 
            (1940).  Mefferd v. Ed Miller & Sons, Inc., Thirty-third 
 
            Biennial Report of the Industrial Commissioner 191 (Appeal 
 
            Decision 1977).
 
            
 
                 The time period contemplated in Iowa Code section 85.23 
 
            does not begin to run until the claimant has knowledge of 
 
            the nature of his disability.  Jacques v. Farmers Lbr. & 
 
            Sup. Co., 242 Iowa 548, 47 N.W.2d 236, 239 (1951).
 
            
 
                 An employer's actual knowledge of occurrence of injury 
 
            must include some information that the injury is 
 
            work-connected in order to satisfy the alternative notice of 
 
            claim requirement.  Robinson v. Department of Transp., 296 
 
            N.W.2d 809,812 (Iowa 1980).  The interpretation in Robinson 
 
            was confirmed in Doerfer Division of CCA v. Nichol, 359 
 
            N.W.2d 4218, 435 (Iowa 1984).
 
            
 
                 A claimant's duty to give notice of injury arises when 
 
            the claimant should recognize the nature, seriousness and 
 
            probable compensable character of his injury or disease.  
 
            The reasonableness of claimant's conduct is to be judged in 
 
            light of his education and intelligence.  Claimant must know 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            enough about the injury or disease to realize that it is 
 
            booth serious and work connected, but positive medical 
 
            information is unnecessary if he has information from any 
 
            source which puts him on notice of its probable 
 
            compensability.  Robinson, supra.
 
            
 
                 The purpose of the 90 day notice or actual knowledge 
 
            requirement is to give the employer an opportunity to timely 
 
            investigate the facts of the injury.  Knipe v. Skelgas Co., 
 
            229 Iowa 740, 748, 294 N.W. 880, 994 (1940); Hobbs v. Sioux 
 
            City, 368 N.W.2d 176 (Iowa 1985).  Koopsman v. Iowa Electric 
 
            Light and Power Company, (Appeal Decision dated, December 
 
            30, 1981).
 
            
 
                 The word "compensable" in the workers' compensation 
 
            notice context is not used to connote legal knowledge that a 
 
            claim is within the workers' compensation act.  Rather, 
 
            "compensable" means that the disability or injury was work 
 
            related.  Quaker Oats Co. v. Miller, 370 So. 2d 1363, 1366 
 
            (Miss. 1979).
 
            
 
                 Unless a statute that imposes a period of limitations 
 
            expressly authorizes exceptions for extenuating 
 
            circumstances, it must be applied uniformly even though the 
 
            result may seem harsh.  Burgess v. Great Plains Bag 
 
            Corporation, 409 N.W.2d 676, 679 (Iowa 1987).
 
            
 
                 A mistake of law is no more an excuse in connection 
 
            with a late compensation claim than anywhere else, unless 
 
            expressly made so by statute.  3 Larson, Workmen's 
 
            Compensation Law, Section 78.47 at 15-334.
 
            
 
                 In the instant case, defendants assert the affirmative 
 
            defense of lack of notice under section 85.23 of the Iowa 
 
            Code, as amended.  Defendants bear the burden of proving 
 
            there was not proper notice.  Claimant testified that she 
 
            tendered verbal notice to the librarian at the Lamoni City 
 
            Library as well as to the assistant librarian, Paula 
 
            Sandelson.  Moreover, claimant testified it was Ms. 
 
            Sandelson who initially referred claimant to Dr. Mandel for 
 
            claimant's hand pain.   The progress notes of Dr. Mandel, 
 
            indicate claimant first visited his office on December 1, 
 
            1989.   Claimant also testified that in December of 1989, 
 
            she showed her hand condition to Ernestine Judkins, Green 
 
            Thumb supervisor, and that Ms. Judkins replied, "You just 
 
            can't do the work."  No one refuted claimant's testimony 
 
            regarding the notice issue.  Her testimony was 
 
            uncontroverted.  It is the determination of the undersigned 
 
            that claimant supplied the requisite notice to her employer, 
 
            as required by section 85.23.
 
            
 
                 Claimant alleges that she has sustained a permanent 
 
            disability as a result of her simultaneous  cumulative 
 
            injury to her upper extremities.  The medical opinions 
 
            substantiate this allegation.  Dr. Patel opines the 
 
            condition is work related.  Dr. Doro opines that claimant 
 
            has sustained a permanent disability and he has provided 
 
            claimant with an impairment rating.  Likewise, the 
 
            evaluating physician, Dr. Rosenfeld has also opined that 
 
            claimant's condition is causally connected to her work 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            injury and that her condition is a permanent one .  Claimant 
 
            has established the requisite causal connection.  Claimant 
 
            has a permanent disability.
 
            
 
                 The next issue to address is the issue dealing with the 
 
            nature and extent of claimant's permanent disability.  
 
            Benefits for permanent partial disability of two members 
 
            caused by a single accident is a scheduled benefit under 
 
            section 85.34(2)(s).  The degree of disability must be 
 
            computed on a functional basis with a maximum benefit 
 
            entitlement of 500 weeks.  Simbro v. Delong's Sportswear, 
 
            332 N.W.2d 886 (Iowa 1983).
 
            
 
                 Bilateral carpal tunnel syndrome which results from one 
 
            gradual injury process and which constitutes the loss of two 
 
            members from one accident is evaluated on a functional basis 
 
            under Iowa Code section 85.34(2)(s).  Himschoot v. Montezuma 
 
            Mfg., File numbers 6722778 and 738235 (App. Dec. April 15, 
 
            1988), (affirmed and appealed to Court of Appeals, February 
 
            22, 1990).  
 
            
 
                 In the case of Johnson v. George A. Hormel & Co., 
 
            (Appeal Dec. June 21, 1988), the industrial commissioner 
 
            held that claimant's bilateral carpal tunnel syndrome was 
 
            found to be the loss of two scheduled members as the result 
 
            of a single gradual injury process, and the disability was 
 
            compensated under section 85.34(2)(s).  
 
            
 
                  Section 85.34(2)(s) as well as the Simbro case, supra, 
 
            are discussed at length in Lawyer and Higgs Iowa Workers' 
 
            Compensation 2d Section 13-4 at p. 124.  The authors write:
 
            
 
                 Special mention needs to be made of the cases 
 
                 arising under Iowa Code section 85.34(2)(s), the 
 
                 provision covering loss of both arms, hands, feet, 
 
                 legs, or eyes or any two thereof in a single 
 
                 accident.  Simbro v. DeLong's Sportswear makes it 
 
                 clear that impairment in such cases must be 
 
                 computed as functional impairment rather than as 
 
                 industrial disability.  Simbro's impairment was 
 
                 three percent of each upper extremity.  Although 
 
                 testimony of industrial disability was presented, 
 
                 the commissioner awarded the combined value of a 
 
                 three percent loss to each extremity or four 
 
                 percent of the 500 weeks scheduled benefit.  The 
 
                 supreme court approved the commissioner's award 
 
                 based on functional impairment.  However, an 
 
                 employee who is permanently and totally disabled 
 
                 by a single accident under subsection (s) may be 
 
                 entitled to permanent total disability benefits.  
 
                 (footnote omitted)
 
            
 
                 In Simbro, supra, the Iowa Supreme Court specifically 
 
            discusses the 1974 amendment to section 85.34(2)(s).  The 
 
            Court concludes at page 889:
 
            
 
                 We conclude that the amendment to paragraph (s) 
 
                 clearly makes the paragraph a scheduled disability 
 
                 subject to functional evaluation.  The plain and 
 
                 unambiguous language in the amendment of paragraph 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
                 (s) which sets out a definite schedule of benefits 
 
                 shows a clear intent by the legislature to make 
 
                 the loss of two members a scheduled loss.  We 
 
                 assume that at the time the legislature amended 
 
                 paragraph (s) it was familiar with the existing 
 
                 case law that evaluated scheduled disability on a 
 
                 functional basis.  See Peffers v. City of Des 
 
                 Moines, 299 N.W.2d 675, 678 (Iowa 1980).  Thus, if 
 
                 it had wished us to apply a different method of 
 
                 evaluation to paragraph (s) losses than we apply 
 
                 to other scheduled losses, it would have so 
 
                 indicated.
 
            
 
                 Later in the decision, at page 889, the Court 
 
            concludes:
 
            
 
                 In conclusion we agree with the ruling of the 
 
                 commissioner that a partial loss under paragraph 
 
                 (s) must be determined by evidence of the 
 
                 functional loss rather than the industrial loss...
 
            
 
                 The instant case clearly deals with the same situation 
 
            as is found in the Simbro case.   Claimant has not sustained 
 
            a permanent and total disability.   Her injury is to be 
 
            evaluated by the functional method for determining the 
 
            nature and extent of her permanent disability.  Section 
 
            85.34(2)(s) is the appropriate section to use in figuring 
 
            the weekly benefits.    
 
            
 
                 Dr. Rosenfeld opines that claimant has a fifteen 
 
            percent impairment to each upper extremity.  He writes that 
 
            claimant's condition is related to her work situation and 
 
            that her pre-existing arthritis is aggravated by her 
 
            employment duties.  Dr. Doro concurs with his opinion.  Dr. 
 
            Patel opines there is no impairment.  When the fifteen 
 
            percent impairment rating to each upper extremity is 
 
            converted to the whole body rating, the figure equals 9 
 
            percent to the whole body.  In order to calculate the number 
 
            of weeks of benefits to which claimant is entitled, the 
 
            Combined Values Chart on page 246  of The AMA Guides to the 
 
            Evaluation of Permanent Impairment 3d edition must be 
 
            consulted.  According to The Guides, the combined values of 
 
            9 percent is 17 percent.  Using section 85.34(2)(s), the 
 
            weeks are calculated as:  500 weeks x 17% =85 weeks .  
 
            Claimant is therefore entitled to 85 weeks of permanent 
 
            partial disability benefits at the stipulated weekly benefit 
 
            rate of $63.82 per week.  
 
            
 
                 The next issue to address is the issue of healing 
 
            period benefits.  Section 85.34(1) provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered a permanent partial disability until ( 1) the 
 
            worker has returned to work; (2) the worker is medically 
 
            capable of returning to substantially similar employment; or 
 
            (3) the worker has achieved maximum medical recovery.  The 
 
            healing period can be considered the period during which 
 
            there is a reasonable expectation of improvement of the 
 
            disabling condition.  See Armstrong Tire & Rubber Co. v. 
 
            Kubli, 312 N.W.2d 60 (Iowa Ct. App 1981).  Healing period 
 
            benefits can be interrupted or intermittent.  Teel v. 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            McCord, 394 N.W.2d 405 (Iowa 1986).
 
            
 
                 Healing period may be ended at the time a physician 
 
            states the condition has remained unchanged and he provides 
 
            an impairment rating.  Hungate v. Lear Sigler, Vol. II-1 
 
            State of Iowa Industrial Commissioner Decisions 196 (Appeal 
 
            Decision 1985).
 
            
 
                 Generally, healing period benefits accrue from the date 
 
            of the injury.  Compensation payments are to be made 
 
            beginning on the eleventh day after injury.  Interest is to 
 
            be paid on benefits which are due but not paid.  Iowa Code 
 
            section 85.30.  Teel, Supra.
 
            
 
                 With respect to the present case, claimant is entitled 
 
            to healing period benefits.  Claimant has failed to 
 
            establish whether she is owed healing period benefits prior 
 
            to April 3, 1990.  However, since April 3, 1990, claimant 
 
            has been unable to work because of the conditions of both of 
 
            her upper extremities.  She remained in the healing period 
 
            through October 22, 1991.   On October 22, 1991, Dr. 
 
            Rosenfeld conducted his examination of claimant and he 
 
            provided an impairment rating to claimant.  Claimant is 
 
            entitled to benefits for ________ weeks at the stipulated 
 
            rate of $63.82 per week.  
 
            
 
                 The final issue to address is whether the $640.00 cost 
 
            of Dr. Rosenfeld's independent medical examination is 
 
            reasonable.
 
            
 
                 Iowa Code section 85.39 provides in pertinent part:
 
            
 
                 If an evaluation of permanent disability has been 
 
                 made by a physician retained by the employer and 
 
                 the employee believes this evaluation to be too 
 
                 low, the employee, shall, upon application to the 
 
                 commissioner and upon delivery of a copy of the 
 
                 application to the employer and its insurance 
 
                 carrier, be reimbursed by the employer the 
 
                 reasonable fee for a subsequent examination by a 
 
                 physician of the employee's own choice, and 
 
                 reasonably necessary transportation expenses 
 
                 incurred for the examination.  The physician 
 
                 chosen by the employee has the right to confer 
 
                 with and obtain from the employer-retained 
 
                 physician sufficient history of the injury to make 
 
                 a proper examination.
 
            
 
                 Section 85.39 permits an employee to be reimbursed for 
 
            a subsequent examination by a physician of the employee's 
 
            choice where an employer-retained physician has previously 
 
            evaluated "permanent disability" and the employee believes 
 
            that the initial evaluation is too low.  The section also 
 
            permits reimbursement for reasonably necessary 
 
            transportation expenses incurred and for any wage loss 
 
            occasioned by the employee's attending the subsequent 
 
            examination.
 
            
 
                 Defendants are only responsible for reasonable fees 
 
            associated with claimant's independent medical examination.  
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            Claimant has the burden of proof with respect to the issue 
 
            of the reasonableness of a fee.  See Schintgen v. Economy 
 
            Fire and Casualty Co., File No. 855298 (Appeal Decision, 
 
            April 26, 1991).
 
            
 
                 An inference of reasonableness can be created when a 
 
            claimant pays a medical bill.  Schneider v. Prairie 
 
            Contractors, Inc., (Appeal Decision, 1992).
 
            
 
                 It is not necessary for claimant to obtain prior 
 
            approval of defendants or that claimant file an application 
 
            for approval from the industrial commissioner's office prior 
 
            to visiting with the medical examiner.  Vaughn v. Iowa 
 
            Power, Inc., File No. 925283 (Arbitration Decision, August 
 
            5, 1992).  Nor is it necessary for claimant to apply for 
 
            reimbursement for an independent medical examination by a 
 
            physician who is retained by claimant prior to the 
 
            examination or prior to a hearing.  Pirozek v. Swift 
 
            Independent Packing and Second Injury Fund of Iowa, File 
 
            Nos. 753643, 753642, 724893 (Appeal Decision 1987).
 
            
 
                 Recently, the Iowa Industrial Commissioner addressed 
 
            the reasonableness of the charge for an independent medical 
 
            examination.  See Wright v. Bridgestone/Firestone, File No. 
 
            1023144 (Appeal Decision April 29, 1993).  In Wright, supra, 
 
            defendants challenged the charges of Dr. Rosenfeld for 
 
            making an independent medical examination.  In that 
 
            situation, Dr. Rosenfeld charged $600.00 as his fee.  This 
 
            deputy wrote the following:
 
            
 
                 Claimant has met his burden of proof.  Dr. Rosenfeld's 
 
            fee of $600.00 is reasonable.  Claimant has paid the bill.  
 
            The fee does not appear outrageous or excessive.  The 
 
            sensibilities of this deputy are not shocked.
 
            
 
                 On appeal, the industrial commissioner affirmed the 
 
            deputy's decision.  The defendants failed to overcome 
 
            claimant's prima facie case of reasonableness and they were 
 
            held liable for $600 for an independent medical examination 
 
            of an upper extremity.
 
            
 
                 In the instant case, the facts are quite similar to the 
 
            facts in the Wright case.  Defendants are disputing the 
 
            reasonableness of an independent medical examination which 
 
            was performed by Dr. Rosenfeld.  The medical examination was 
 
            for conditions of the upper extremities.  The fee in this 
 
            case is $640.00.  Defendants have paid $400.00 of the 
 
            charges.  Defendants have not paid $240.00 for x-rays of the 
 
            hands.  Claimant is requesting reimbursement for the 
 
            $240.00.  She testified the x-rays were new ones and they 
 
            were not duplicate tests.  Defendants provided no testimony 
 
            to the contrary.  
 
            
 
                 It is the determination of the undersigned that 
 
            claimant has made a prima facie case with respect to the 
 
            reasonableness of the medical bill for the independent 
 
            medical examination.  Defendants have failed to overcome 
 
            claimant's prima facie case of reasonableness.  Defendants 
 
            are liable for the $640.00 fee.  The $240.00 balance is to 
 
            be reimbursed to claimant.
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered that:
 
            
 
                 Defendants shall pay unto claimant eighty-five (85) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of sixty-three and 82/l00 dollars ($63.82) 
 
            per week and commencing on October 23, 1991.
 
            
 
                 Defendants  shall pay unto claimant _____ weeks of 
 
            healing period benefits from April 3, 1990 through October 
 
            22, 1991 at the stipulated rate of sixty-three and 82/l00 
 
            dollars ($63.82) per week.
 
            
 
                 Defendants shall reimburse claimant for two hundred 
 
            forty and no/l00 dollars ($240.00) in reasonable expenses 
 
            incurred for an independent medical examination.
 
            
 
                 Defendants shall take credit for all benefits 
 
            previously paid to claimant.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year.
 
            
 
                 Costs are taxed to defendants pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 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 September, 1993.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Avenue
 
            Des Moines, Iowa 50311-1540
 
            
 
            Ms. Dorothy L. Kelley
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
        
 
 
 
                                             1803; 1803.1; 2505; 2601
 
                                             Filed September 14, 1993
 
                                             MICHELLE A. McGOVERN
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ALMA SLAUTER,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 947359
 
            GREEN THUMB, INC.,  
 
                                          A R B I T R A T I O N
 
                 Employer, 
 
                                            D E C I S I O N
 
            and       
 
                      
 
            HOME INSURANCE COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                    
 
            1803; 1803.1
 
            Claimant sustained simultaneous bilateral injuries to her 
 
            upper extremities.  The benefits owed were calculated on a 
 
            functional basis using section 85.34(2)(s).  The line of 
 
            cases in Simbro was followed.
 
            
 
            2505; 2601
 
            Claimant had an independent medical examination.  Dr. 
 
            Rosenfeld performed the examination and he charged $640.00 
 
            as his fee.  Defendants paid $400.00 of the fee but they 
 
            disputed the balance.  Claimant paid the balance and 
 
            requested reimbursement for the $240.00.   Claimant made a 
 
            prima facie showing of reasonableness of the fee.  
 
            Defendants failed to overcome claimant's prima facie case of 
 
            reasonableness.  Defendants were held liable for the balance 
 
            and they were ordered to reimburse claimant for the sum.
 
            
 
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            JASON A. MEHMEN,      
 
                        
 
                 Claimant,                 File Nos. 947408/970240
 
                        
 
            vs.                                    A P P E A L
 
                                   
 
            DAYCO PRODUCTS, INC.,               D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
            
 
                                      ISSUES
 
            
 
            The issue on appeal is:  The extent of claimant's industrial 
 
            disability resulting from his April 16, 1990 or his December 
 
            11, 1990 injury.
 
            
 
                                 FINDINGS OF FACT
 
            
 
            The findings of fact contained in the proposed agency 
 
            decision filed June 28, 1993 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.  Segments designated by brackets ([ 
 
            ]) indicate language that is in addition to the language of 
 
            the proposed agency decision.
 
            [Claimant was born on September 8, 1968.]  Claimant worked 
 
            for Dayco from January 1989 until February 1991.  Claimant 
 
            started operating a deburring machine and later moved to CNC 
 
            lathe operation.  All of this work required heavy manual 
 
            labor at times.  Claimant quit in February 1991 as he felt 
 
            that he could no longer perform this work and started 
 
            attending a vocational school in aviation mechanics.  
 
            Although he is not currently attending school, he is 
 
            planning on returning to complete his certification as an 
 
            aviation mechanic.  Claimant has been working
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            summers as a carpenter performing normal carpentry duties 
 
            including heavy labor and heavy lifting from time to time.
 
            The injury on April 16, 1990 occurred while lifting a barrel 
 
            of metal chips.  Claimant felt a pop and the onset of pain 
 
            in the right shoulder.  When conservative initial treatment 
 
            from Raul Ruiz, M.D., failed to alleviate symptoms of pain 
 
            and numbness, claimant received surgery from Scott Neff, 
 
            D.O., an orthopedic surgeon, in July 1990 upon a diagnosis 
 
            of impingement syndrome, subsacromial bursitis,  
 
            subclavicular spurring and rotator cuff tendonitis.  [On 
 
            July 5, 1990 Dr. Neff performed excision of coracoacromial 
 
            ligament with subacromial bursectomy, anterior and inferior 
 
            acromioplasty, exploration of rotator cuff, and Mumford 
 
            excision of the distal clavicle.  (Ex. 15, page 16)]  
 
            Claimant returned to work on November 18, 1990 performing 
 
            his lathe job with temporary restrictions on lifting at or 
 
            above shoulder level.  Claimant reinjured the right shoulder 
 
            in December 1990 when he was tightening a part on a lathe.  
 
            Although his pain increased briefly for a while after this 
 
            injury, he returned to the same condition as before the 
 
            December 1990 injury within a week or two.
 
            *****
 
            [On November 12, 1990 Dr. Neff wrote that he did not believe 
 
            claimant had any significant impairment in the right upper 
 
            extremity.  At that time Dr. Neff recommended a restriction 
 
            from repetitious work at and above shoulder height for a 
 
            period of one month following resumption of work.  (Ex. 19, 
 
            page 21)  On January 25, 1991 Dr. Neff recommended a 
 
            restriction of not more than twenty pounds at or above 
 
            shoulder height for a period of time.  (Ex. 21, p. 23)  On 
 
            February 4, 1991 Dr. Neff wrote that claimant had done very 
 
            well and "based on essentially almost normal motion, he will 
 
            have a 5 percent impairment to his upper extremity."  (Ex. 
 
            22, p. 24)
 
            
 
            On August 3, 1992 claimant was evaluated by Martin S. 
 
            Rosenfeld, D.O.  On that same date Dr. Rosenfeld wrote:
 
               On examination he has essentially full motion of the 
 
            shoulder.  He does have some perceptible abductor power 
 
            weakness at the right shoulder vs. the left.  He does have a 
 
            small defect where the distal clavicle was excised as 
 
            expected.
 
               
 
               No films are available at this time, but due to his 
 
            satisfactory result, I feel that he has a five (5%) percent 
 
            permanent physical impairment to the right upper extremity 
 
            as a result of his injury.  This could be construed to be 
 
            five (5%) percent to the body as a whole since the surgery 
 
            was carried out medial to the distal end of the clavicle. 
 
            ... He is working without restrictions and I doubt that 
 
            there would be any reason to put restrictions on him.
 
            
 
            (Ex. 24, page 26)]
 
            
 
            ***** Claimant stated that he could not continue in his 
 
            machinist work at Dayco because of his shoulder problems but 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            he should be able to perform the aircraft maintenance work.  
 
            He was able to perform heavy work as a carpenter during 
 
            summer work but he stated that he did experience pain in 
 
            doing so.  
 
            *****
 
            [Claimant was earning approximately $9.00 per hour at the 
 
            time of his December 1990 injury.  (Tr., p. 43)  Claimant's 
 
            subsequent earnings are approximately $5.50 per hour during 
 
            the summers when he was not attending school.  (Tr., p. 39)]
 
            
 
                              CONCLUSIONS OF LAW
 
            
 
            The issue to be resolved is the extent of claimant's 
 
            industrial disability.  Claimant has had two injuries, one 
 
            on April 16, 1990 and one on December 11, 1090.  The injury 
 
            on April 16, 1990 did not resolve after conservative 
 
            treatment and eventually required surgery.  It is clear from 
 
            the opinions of both Dr. Neff and Dr. Rosenfeld that 
 
            claimant's permanent disability resulted from claimant's 
 
            April 16, 1990 injury and resulting surgery.  Claimant was 
 
            able to return to work shortly after his December 11, 1990 
 
            injury and has not had medical treatment for the December 
 
            11, 1990 injury.  The December 11, 1990 injury was a 
 
            temporary aggravation of his shoulder condition.  Claimant's 
 
            permanent disability is a result of his April 16, 1990 
 
            injury. 
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            the employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            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 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Iowa Code section 
 
            85.34.
 
            Claimant was 21 years old at the time of his April 19, 1990 
 
            injury.  That injury has resulted in a five percent 
 
            impairment of the right upper extremity.  Claimant had 
 
            surgery as a result of the injury.  That surgery has proved 
 
            to be successful.  Claimant has no permanent work 
 
            restrictions.  He has nearly normal range of motion in his 
 
            shoulder.  Claimant has shown an aptitude and ability for 
 
            retraining as evidenced by his post-high school study and 
 
            aircraft maintenance training school.  Claimant's past 
 
            employment primarily consists of heavy manual labor in 
 
            manufacturing.  Claimant has had a loss of earnings but his 
 
            subsequent employment has been limited to summer jobs while 
 
            attending school.  When all relevant factors are considered 
 
            claimant has suffered a ten percent loss of earnings 
 
            capacity (industrial disability) as a result of the April 
 
            19, 1990 work injury.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      ORDER
 
            
 
            THEREFORE, it is ordered:
 
            That defendant is to pay unto claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the rate of one 
 
            hundred sixty-eight and 97/100 dollars ($168.97) per week 
 
            from November 18, 1990.
 
            That defendant shall pay accrued weekly benefits in a lump 
 
            sum.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            That defendant is to be given credit for benefits previously 
 
            paid.
 
            That defendant shall pay interest on unpaid weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this matter 
 
            including transcription of the hearing and shall reimburse 
 
            claimant for the filing fee if previously paid by claimant.
 
            
 
                 That defendant shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            Signed and filed this ____ day of December, 1993.
 
            
 
            
 
            
 
            
 
                                  ________________________________
 
                                          BYRON K. ORTON
 
                                     INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Avenue
 
            Des Moines, Iowa 50311
 
            
 
            Mr. Stephen W. Spencer
 
            Mr. Timothy W. Wegman
 
            Attorneys at Law
 
            P.O. Box 9130
 
            Des Moines, Iowa 50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed December 20, 1993
 
                                          Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            JASON A. MEHMEN,      
 
                        
 
                 Claimant,                  File Nos. 947408/970240
 
                        
 
            vs.                                    A P P E A L
 
                        
 
            DAYCO PRODUCTS, INC.,                D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
           
 
            
 
            5-1803
 
            Claimant was 21 years old at time of injury.  As a result of 
 
            the injury claimant had surgery and a five percent 
 
            impairment of the upper extremity.  Claimant had no work 
 
            restrictions.  Claimant had shown an ability for post high 
 
            school education.  Claimant had an industrial disability of 
 
            ten percent.
 
            
 
 
            
 
           
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JASON A. MEHMEN,              :
 
                                          :      File Nos. 947408
 
                 Claimant,                :                970240
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            DAYCO PRODUCTS, INC.,         :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                               STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Jason A. 
 
            Mehmen, claimant, against Dayco Products, Inc., employer, 
 
            hereinafter referred to as Dayco, a self-insured defendant, 
 
            for workers' compensation benefits as a result of alleged 
 
            injuries on April 16, 1990 and December 11, 1990.  On May 4, 
 
            1993, a hearing was held on claimant's petition and the 
 
            matter was considered fully submitted at the close of this 
 
            hearing.
 
            
 
                 The parties have submitted a hearing report of 
 
            contested issues and stipulations which were approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.      
 
                 According to the hearing report, the parties have 
 
            stipulated  to the following matters:
 
            
 
                 1.  Claimant received the injuries alleged in the 
 
            petitions herein both of which arose out of and in the 
 
            course of  employment with Dayco.
 
            
 
                 2. Claimant is not seeking additional temporary total 
 
            or healing period benefits. 
 
            
 
                 3.  At the time of both injuries herein,  claimant was 
 
            single and  entitled to one exemption.
 
            
 
                 4.   Medical benefits are not in dispute.
 
                 
 
                                       ISSUE
 
            
 
                 The only issue submitted by the parties for 
 
            determination in this proceeding is the extent of claimant's 
 
            entitlement to permanent disability benefits.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                               FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is unnecessary to this decision 
 
            as defendant did not place claimant's credibility at issue 
 
            during the hearing.
 
            
 
                 Claimant worked for Dayco from January 1989 until 
 
            February, 1991.  Claimant started operating a deburring 
 
            machine and later moved to CNC lathe operation.  All of this 
 
            work required heavy manual labor at times.  Claimant quit in 
 
            February 1991 as he felt that he could no longer perform 
 
            this work and started attending a vocational school in 
 
            aviation mechanics.  Although he is not currently attending 
 
            school, he is planning on returning to complete his 
 
            certification as an aviation mechanic.  Claimant has been 
 
            working summers as a carpenter performing normal carpentry 
 
            duties including heavy labor and heavy lifting from time to 
 
            time.
 
            
 
                 The injury on April 16, 1990 occurred while lifting a 
 
            barrel of metal chips.  Claimant felt a pop and the onset of 
 
            pain in the right shoulder. When conservative initial 
 
            treatment from Raul Ruiz, M.D., failed to alleviate symptoms 
 
            of pain and numbness, claimant received surgery from Scott 
 
            Neff, D.O., an orthopedic surgeon, in July 1990 upon a 
 
            diagnosis of impingement syndrome, subsacromial bursitis,  
 
            subclavicular spurring and rotator cuff tendonitis.  
 
            Claimant returned to work on November 18, 1990 performing 
 
            his lathe job with temporary restrictions on lifting at or 
 
            above shoulder level.  Claimant reinjured the right shoulder 
 
            in December 1990 when he was tightening a part on a lathe.  
 
            Although his pain increased briefly for a while after this 
 
            injury, he returned to the same condition as before the 
 
            December 1990 injury within a week or two.
 
            
 
                 Claimant previously injured his right shoulder in 
 
            October 1989 at Dayco while tightening a jaw on his CNA 
 
            lathe.  Claimant received treatment for this condition and 
 
            was off work for a week.  He had intermittent pain in the 
 
            shoulder after that time.  However, according to claimant, 
 
            the pain became worse and chronic only after the April 1990 
 
            injury.
 
            
 
                 The work injury of April 16, 1990 is found to be a 
 
            cause of a 5 percent permanent impairment to the body as a 
 
            whole.  The injury of December 1990 did not add to this 
 
            impairment.   Any apportionment based upon the prior to 
 
            subsequent injury would be improper as all injuries occurred 
 
            during employment at Dayco.  Claimant has no formal work 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            restrictions at present and is able to perform limited heavy 
 
            work.  However, claimant stated that he could not continue 
 
            in his machinist work at Dayco because of his shoulder 
 
            problems but he should be able to perform the aircraft 
 
            maintenance work.  He was able to perform heavy work as a 
 
            carpenter during summer work but he stated that he did 
 
            experience pain in doing so.  
 
            
 
                 Due to the work injury, claimant cannot return to 
 
            repetitive heavy factory work.  However, claimant is young 
 
            at age 24.  If he completes aircraft training school he 
 
            could earn substantial similar wages to the wages he 
 
            received at Dayco.  However, he had not as yet completed 
 
            this training.   Claimant has a high school education and 
 
            three semesters at Elsworth Community College studying 
 
            conservation. Claimant's past  employment primarily consists 
 
            of heavy manual labor in manufacturing.  
 
            
 
                 From examination of all of the factors of industrial 
 
            disability, it is found that the work injury of April 16, 
 
            1990 was a cause of a 20 percent loss of earning capacity.   
 
            The subsequent injury was not a cause of permanent 
 
            disability.
 
            
 
                 From exhibit 25, it is found that claimant's gross 
 
            weekly earnings during the 13 representative weeks prior to 
 
            the injury of April 16, 1990 was $273.41.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 As the claimant has shown that the work injury of April 
 
            16, 1990 was a cause of permanent physical impairment or 
 
            limitation upon activity involving the body as a whole,  the 
 
            degree of permanent disability must be measured pursuant to 
 
            Iowa Code section 85.34(2)(u).  However, unlike scheduled 
 
            member disabilities, the degree of disability under this 
 
            provision is not measured solely by the extent of a 
 
            functional impairment or loss of use of a body member. A 
 
            disability to the body as a whole or an "industrial 
 
            disability" is a loss of earning capacity resulting from the 
 
            work injury.  Diederich v Tri-City Railway Co., 219 Iowa 
 
            587, 593, 258 N.W. 899 (1935).  A physical impairment or  
 
            restriction on work activity may or may not result in such a 
 
            loss of earning capacity.  Examination of several factors 
 
            determines the extent to which a work injury and a resulting 
 
            medical condition caused an industrial disability. These 
 
            factors include the employee's medical condition prior to 
 
            the injury, immediately after the injury and presently;  the 
 
            situs of the injury, its severity and the length of healing 
 
            period;  the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation;  
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury;  
 
            age; education; motivation; functional impairment as a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            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.  See Peterson v Truck Haven 
 
            Cafe, Inc. (Appeal Decision, Feb. 28, 1985).
 
            
 
                 In the case sub judice,  it was found that claimant 
 
            suffered a 20 percent loss of his earning capacity as a 
 
            result of the work injury.  Such a finding entitles claimant 
 
            to 100 weeks of permanent partial disability benefits as a 
 
            matter of law under Iowa Code section 85.34(2)(u) which is 
 
            20 percent of 500 weeks, the maximum allowable number of 
 
            weeks for an injury to the body as a whole in that 
 
            subsection. 
 
            
 
                 Apportionment of disability between a preexisting 
 
            condition or injury  and the injury at bar is proper only in 
 
            those situations where a prior injury or illness "unrelated 
 
            to employment" independently produces some ascertainable 
 
            portion of the ultimate disability. Tussing v George A 
 
            Hormel & Co., 461 N.W.2d 450 (Iowa 1990), Varied 
 
            Enterprises, Inc. v Sumner, 353 N.W.2d 407 (Iowa 1984).  
 
            Prior existing impairment does not mandate a finding of loss 
 
            of earning capacity when there has been no lost earnings or 
 
            employment.  See  Bearce v FMC Corp, 465 N.W.2d 531 (Iowa 
 
            1991).
 
            
 
                 The parties dispute as to rate of compensation centers 
 
            around the calculation of her gross wages. As claimant's 
 
            hours varied greatly from week to week, the previous 13 
 
            weeks must be utilized to calculate the rate.  However, this 
 
            agency has consistently held that in weeks which contain 
 
            absences due to illness, vacation or other causes are not 
 
            representative weeks and should be excluded from the 
 
            calculation.  Lewis v Aalf's Mfg. Co. I Iowa Indus. Comm'r 
 
            Rep. 206 (Appeal Dec. 1980).  In this case, it was found 
 
            claimant's gross weekly earnings were $273.41 at the time of 
 
            the injury producing permanent disability. Given the 
 
            stipulation as to marital status and exemptions, claimant's 
 
            rate of weekly compensation according to the industrial 
 
            commissioner published rate booklet for an injury during FY 
 
            90 is $168.97.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendant shall pay to claimant  one hundred (100) 
 
            weeks of permanent partial disability benefits at a rate of 
 
            one hundred sixty-eight and 97/100 dollars ($168.9)7 per 
 
            week from November 18, 1990.
 
            
 
                 2.  Defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
                 3.  Defendant shall pay interest on weekly benefits 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 4.  Defendant shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 5.  Defendant shall file activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 
            to rule 343 IAC 3.1.
 
                 
 
            
 
                 Signed and filed this ___ day of June, 1993.
 
            
 
            
 
            
 
                                ______________________________________
 
                                LARRY P. WALSHIRE
 
                                DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Robert W Pratt
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines IA 50311-1540
 
            
 
            Mr Stephen W Spencer
 
            Mr Timothy W Wegman
 
            Attorneys at Law
 
            405 6th Ave  Ste 700
 
            P O Box 9130
 
            Des Moines IA 50306-9130
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  5-1803
 
                                                  Filed June 28, 1993
 
                                                  Larry P. Walshire
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JASON A. MEHMEN,              :
 
                                          :      File Nos. 947408
 
                 Claimant,                :                970240
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            DAYCO PRODUCTS, INC.,         :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            SHAWN T. WORTON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 947422
 
            RON BUYSEE DODGE,             :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            WEST BEND MUTUAL,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Shawn T. 
 
            Worton, against his former employer, Ron Buysee Dodge, and 
 
            its insurance carrier, based upon an injury that occurred on 
 
            April 16, 1990, when Worton slipped and fell at his place of 
 
            employment.  The primary issue in this case is determination 
 
            of whether that injury proximately caused Shawn's continuing 
 
            back problems, particularly those which commenced on or 
 
            about October 1, 1990.  Shawn seeks to recover weekly 
 
            compensation for healing period, permanent partial 
 
            disability, payment of medical expenses and costs.
 
            
 
                 The case was heard and fully submitted at Davenport, 
 
            Iowa, on March 25, 1992.  The evidence consists of testimony 
 
            from Shawn Worton and David Cozad.  The record also contains 
 
            exhibits 1 through 25 and 27 through 33.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having considered all of the evidence received, 
 
            together with the appearance and demeanor of the witnesses, 
 
            the following findings of fact are made:
 
            
 
                 Shawn Worton is a 28 year old married man with two 
 
            children who had traditionally worked in the auto body 
 
            repair field.  While employed at Ron Buysee Dodge on April 
 
            16, 1990, he slipped on a wet floor and fell, landing 
 
            primarily on his right buttock and injuring his low back and 
 
            neck.  Shawn sought treatment from J. Albert DeBlois, M.D.  
 
            Claimant was treated conservatively, remained off work 
 
            approximately two days and resumed his employment without 
 
            any particular medically imposed activity restrictions.  
 
            Shawn's symptoms improved notably following the injury.  He 
 
            was able to perform his work without any difficulty being 
 
            apparent to David Cozad, one of Shawn's supervisors.
 
            
 
                 In August of 1990, Shawn's back was bothering him and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            he sought treatment from Mary Jo Delsman, D.C.  He was 
 
            treated on August 18 and 25, 1990.  Shawn returned to Dr. 
 
            Delsman on October 1, 1990, with acute low back pain, 
 
            demonstrating antalgic posture.  Shawn reported that he had 
 
            bent over on September 30 and felt a pop in his back.  The 
 
            notes also indicate that Shawn reported to Dr. Delsman that 
 
            his back had not been completely right since he fell at work 
 
            on April 16, 1990 (Exhibit 14).
 
            
 
                 Shawn was taken off work by Dr. Delsman (Ex. 9) and 
 
            engaged in a course of treatment from Dr. Delsman running 
 
            through January 31, 1991 (Ex. 6).  Dr. Delsman reported that 
 
            the condition for which she treated Shawn was due to the 
 
            fall of April 16, 1990, an injury from which he did not 
 
            completely heal (Ex. 14).
 
            
 
                 On October 18, 1990, Shawn returned to Dr. DeBlois who 
 
            found his condition to be similar to that which had existed 
 
            in April.  Dr. DeBlois expressed the opinion that the back 
 
            problem was directly related to the April 16, 1990 work 
 
            injury (Ex. 19).
 
            
 
                 On October 10, 1990, Shawn was examined by neurologist 
 
            Michael H. Laws, M.D.  Dr. Laws formed the impression that 
 
            Shawn had a lumbar radiculopathy at the L5 level of his 
 
            spine and recommended treatment in the nature of therapy and 
 
            medication (Exs. 22 and 23).  A CT scan showed an osteophyte 
 
            at the L5 level on the right side of Shawn's spine which 
 
            provided an approximate 50 percent stenosis of the neural 
 
            foramina (Ex. 23; Ex. 28, pp. 3, 47 and 90).  A myelogram 
 
            was also conducted which showed a bulging disc of doubtful 
 
            significance and which also again showed the osteophyte 
 
            which the radiologist concluded might be the cause of a 
 
            right L5 radiculopathy (Ex. 28, pp. 25 and 89).  The report 
 
            goes on to indicate that the osteophyte is probably related 
 
            to degenerative changes of claimant's facet joints.  An EMG 
 
            test was conducted which was interpreted as being normal 
 
            (Ex. 28, pp. 48 and 49).  Despite the normal EMG report Dr. 
 
            Laws continued to feel that claimant had a radiculopathy 
 
            (Ex. 27, p. 9).  Dr. Laws was also of the opinion that the 
 
            October incident was related to the fall which Shawn had 
 
            experienced earlier in the month of April 1990 (Ex. 27, pp. 
 
            14 and 15).
 
            
 
                 Shawn was referred to neurosurgeon Richard A. Roski, 
 
            M.D.  Dr. Roski explained in his deposition that a normal 
 
            EMG test does not absolutely rule out the existence of a 
 
            radiculopathy (Ex. 31, pp. 8 and 9).  Dr. Roski also 
 
            explained that the October incident evoked most of 
 
            claimant's symptoms and could exacerbate any type of 
 
            underlying back problem (Ex. 31, pp. 12 and 13).  Dr. Roski 
 
            was unable to state whether or not claimant's degenerative 
 
            condition which had been observed by the diagnostic tests 
 
            had preexisted the April 1990 fall or whether it might have 
 
            developed since that April 1990 fall (Ex. 31, p. 11).
 
            
 
                 Shawn was also evaluated by John S. Koch, M.D., a Cedar 
 
            Rapids orthopedic surgeon.  Dr. Koch in his report stated:  
 
            "I do not feel the injury of April, 1990 was the basis for 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            this as the immediate following difficulty course of 
 
            activity was not consistent with any significant injury 
 
            having occurred in April."
 
            
 
                 The various physicians have provided a number of 
 
            different impairment ratings.  Dr. Roski has recommended 
 
            activity restrictions which in general consist of avoiding 
 
            repetitive bending, awkward positions or lifting more than 
 
            20 pounds.
 
            
 
                 The only physiology abnormality shown by any of the 
 
            diagnostic tests which could provide an anatomical basis for 
 
            Shawn's complaints is the osteophyte on the right side at 
 
            the L5 level of his spine.  The only suggested origin or 
 
            cause of that osteophyte is found in a radiology report 
 
            where it is suggested that it is probably related to 
 
            degenerative changes of the facet joints (Ex. 28, pp. 25 and 
 
            89).  Dr. Roski agreed that the osteophyte was probably 
 
            related to degenerative changes of the facet joints (Ex. 31, 
 
            p. 9).
 
            
 
                 Dr. Roski indicated in his deposition that if 
 
            claimant's symptoms were the same in April as they were in 
 
            October, then the October incident was an exacerbation or 
 
            reinjury of the same problem (Ex. 30, p. 15).  It is clear 
 
            from the evidence and the course of Shawn's symptoms that 
 
            the October incident had a much greater immediate impact on 
 
            him than did the April incident.  The October symptoms were 
 
            much more severe.
 
            
 
                 Shawn denied having any notable prior back problems and 
 
            he appeared to be a credible witness, as did David Cozad.  
 
            The record provides nothing to contradict Shawn's denial of 
 
            back problems prior to April 16, 1990.
 
            
 
                 The greater weight of the evidence in this case is that 
 
            Shawn Worton has a degenerative condition in his spine which 
 
            has produced an osteophyte which encroaches the neural 
 
            foramina.  The evidence suggests that the radiculopathy 
 
            which Dr. Laws has diagnosed and which has not been 
 
            disproven by diagnostic tests is a result of the 
 
            degenerative condition.  There is nothing in the record of 
 
            the case which suggests a cause for that degenerative 
 
            condition.  If Shawn had the degenerative condition prior to 
 
            April 16, 1990, it is something which would be quite 
 
            susceptible to being aggravate or exacerbated by a fall.  It 
 
            is a condition which would likewise be susceptible to 
 
            exacerbation or aggravation by an activity such as bending 
 
            forward or any other activity which might place stress on 
 
            his low back.  Any such aggravation could be either 
 
            temporary or permanent.  There is no expert opinion 
 
            testimony in the record of this case which relates the 
 
            degenerative condition, or any part of it, to the April 16, 
 
            1990 fall.
 
            
 
                 It is found that Shawn's symptoms did not completely 
 
            resolve over the summer of 1990 but that he did experience a 
 
            great degree of recovery from the symptoms which were 
 
            initially present after he fell on April 16, 1990.  It is 
 
            also found that the residual symptoms during the summer of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            1990 were not sufficiently severe to prevent him from 
 
            performing his work in his customary fashion or to be 
 
            observed or noticed by a casual observer such as David 
 
            Cozad.  Those symptoms were not disabling and did not 
 
            prevent Shawn from performing his normal work in his 
 
            customary manner.
 
            
 
                 The record in this case certainly shows it to be 
 
            possible that the fall of April 16, 1990 produced some 
 
            permanent change in claimant's spine.  The evidence, 
 
            however, does not reach the level of showing that 
 
            possibility to be a probability.  It is equally possible 
 
            that the April incident was merely one of a series of three 
 
            incidents which aggravated an underlying degenerative 
 
            condition.  The first two, namely, April and August, 
 
            provided reasonably prompt recovery while the third, 
 
            September 30 or October 1, provided continuing symptoms.  It 
 
            was the third which led Shawn to seek aggressive medical 
 
            care.  The evidence which is present in the record of this 
 
            case, does not establish that the April 16, 1990 fall was 
 
            probably a substantial factor in producing the disability 
 
            which afflicted Shawn Worton commencing September 30 or 
 
            October 1, 1990, or of producing any residual permanent 
 
            impairment, permanent limitations on his physical abilities, 
 
            permanent disability or temporary disability beyond the 
 
            initial two days he was off work.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 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).
 
            
 
                 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 foril 16, 1990 fall in some way caused the disability which 
 
            followed the incident of September 30, 1990.  From the 
 
            record which has been made in this case, it is just as 
 
            likely that each of those events was an independent and 
 
            separate aggravation of a preexisting degenerative condition 
 
            as it is that the April 16, 1990 incident was a substantial 
 
            factor in producing the subsequent incident.  It is 
 
            therefore concluded that Shawn Worton has failed to carry 
 
            the burden the law imposes upon him of proving that the 
 
            April 16, 1990 fall was more likely than not a substantial 
 
            factor in producing the disability which has afflicted him 
 
            since October 1, 1990.  Claimant is therefore not entitled 
 
            to any recovery in this case.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 That claimant take nothing from this proceeding.
 
            
 
                 IT IS FURTHER ORDERED:
 
            
 
                 That each party pay the costs incurred by it in 
 
            participating in this proceeding.
 
            
 
                 Signed and filed this ____ day of August, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr John T Bribriesco
 
            Attorney at Law
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            2828 18th St  Ste 4A
 
            Bettendorf IA 52722
 
            
 
            Ms Vicki L Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            Davenport IA 52801
 
            
 
 
            
 
 
 
 
 
 
 
                                                5-1402.30
 
                                                Filed August 31, 1992
 
                                                Michael G. Trier
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            SHAWN T. WORTON,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 947822
 
            RON BUYSEE DODGE,   
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            WEST BEND MUTUAL,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1402.30
 
            Claimant's claim was denied where there was an admitted 
 
            injury that occurred in April of 1990, but the onset of 
 
            disability did not occur until October of 1990.  The record 
 
            indicated a very substantial recovery from the first injury.  
 
            The second injury or onset of disability occurred following 
 
            activities which did not occur at the employer's work place.  
 
            Diagnostic medical testing showed an osteophyte which 
 
            encroached the neural foramina and was likely responsible 
 
            for his radiculopathy complaints.  No medical evidence 
 
            attributed that osteophyte to any injury.  It was rather 
 
            attributed to degeneration.
 
            
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
MARY UNDERWOOD,    
 
 
 
     Claimant,                        File No. 947518
 
          
 
vs.       
 
                                   A R B I T R A T I O N
 
FARMLAND FOODS,    
 
                                      D E C I S I O N
 
     Employer, 
 
     Self-Insured,  
 
     Defendant.     
 
________________________________________________________________
 
                   STATEMENT OF THE CASE
 
 
 
Claimant, Mary Underwood, has filed a petition in arbitration and seeks 
 
workers' compensation benefits from Farmland Foods, Inc., defendant 
 
self-insured employer, for an injury of March 13, 1990.  The hearing 
 
was held before the undersigned on January 12, 1995 at Sioux City, 
 
Iowa.  The evidence in this case consists of the testimony of claimant; 
 
Nancy Wiese, company nurse for defendant employer; Mike Mann, 
 
supervisor for defendant employer; joint exhibits 1 through 45; 
 
Claimant's exhibits 46 through 48; and defendant's exhibits A 
 
through R.  The case was considered fully submitted at the close 
 
of the hearing.  Defendant filed a brief at the hearing.  
 
Claimant filed a post-hearing brief on February 21, 1995.
 
 
 
                              ISSUES
 
 
 
The parties presented the following issues for resolution:
 
 
 
1.  Whether claimant's injury of March 13, 1990 resulted in any 
 
permanent disability and, if so, whether her disability is causally 
 
connected to her work injury;
 
 
 
2.  Whether claimant is entitled to permanent partial disability 
 
benefits; and,
 
 
 
3.  Whether claimant is entitled to reimbursement for an independent 
 
medical examination pursuant to Iowa Code section 85.39.
 
 
 
                         FINDINGS OF FACT
 
 
 
The undersigned deputy industrial commissioner, having reviewed all of 
 
the evidence received, finds the following facts:
 
 
 
Claimant, Mary Underwood, was 39 years old on the date of the hearing, 
 
married and the mother of two children, one of whom was still living at 
 
home on the date of the hearing.   She obtained a high school diploma 
 
in 1973 and thereafter attended business school for one year.
 
 
 
Claimant's past work history includes work as a nurse's aid, for two 
 
different nursing homes, work in the U.S. Army as a rec specialist and 
 
work as a file clerk and in a grocery store. (Joint Exhibit 1, page 2)  
 
She has worked for defendant employer continuously since April of 1981.
 
For nine years claimant performed the job of "reel pack operator."  As 
 
a reel pack operator claimant was required to place boneless hams into 
 
an automatic stuffing machine.  She would first fold the hams in half 
 
then put them into the stuffing chamber and push the start cycle 
 
button.  Ham to be processed in the machine came down a chute toward 
 
claimant.  The ham wasn't always close enough for her to reach it so 
 
she used a rake to pull the ham pieces close enough to her so she could 
 
easily grab them.  Claimant estimated that she used a rake up 
 
to 30 percent of the time she 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
spent working on the machine.  Use of the rake required claimant to 
 
bend her elbows as the meat was pulled closer to her.  Occasionally, 
 
larger pieces of ham had to be cut up so they would fit in the machine. 
 
 
 
Before beginning work for defendant employer claimant had no disability 
 
of either arm.  (Jt. Ex. 1, p. 3)  In 1981 claimant's left index finger 
 
was amputated in a work-related accident.  Claimant is left handed.  
 
(Jt. Ex. 33)
 
 
 
In January of 1989 Claimant underwent carpal tunnel release on the 
 
right.  (Jt. Ex. 9)  In April of 1989 claimant underwent carpal tunnel 
 
release on the left.  (Jt. Ex. 10)  She settled her claim for benefits 
 
with regard her carpal tunnel problems and specifically reserved for 
 
this hearing the issue of her ulnar nerve complaints.  (Claimant's 
 
Exhibits 46 and 47)
 
 
 
Defendant stipulated that claimant sustained an injury that arose out 
 
of and in the course of her employment on March 13, 1990.  
 
 
 
On March 13, 1990, claimant saw Mary Franklin-Paulus, M.D., and voiced 
 
complaints of intermittent tingling, pain and numbness both hands up to 
 
her elbows as well as pressure sensation in the fingertips.  Dr. 
 
Franklin-Paulus' impression was tingling hands. (Jt. Ex. 13, p. 3)  
 
Nerve conduction studies showed mild carpal tunnel syndrome on the 
 
right in the sensory fiber only.  The EMG was normal.  (Jt. Ex. 14)  
 
 
 
Dr. Franklin-Paulus referred claimant to Thomas P. Ferlic, M.D. 
 
On April 4, 1990 claimant saw Dr. Ferlic and complained of aching in 
 
both hands that was different from her pre-carpal tunnel surgery 
 
symptoms.  He noted that she performed repetitive flexion of her elbows 
 
as part of her job.  She had tenderness over the ulnar grooves 
 
bilaterally.  She had point tenderness over the ulnar nerve as it 
 
entered the two heads of the flexor carpi ulnaris.  Dr. Ferlic 
 
suspected ulnar nerve symptoms from repetitive flexion.  He prescribed 
 
use of splints at night and the use of nonsterodial anti-
 
inflammatories.  (Jt. Ex. 24, p. 1, 2)  Claimant was placed on light 
 
duty work with the restriction that she do no repetitive bending or 
 
flexion of her elbows.  (Jt. Ex. 17)
 
 
 
On a follow-up visit of April 18, 1990, Dr. Ferlic noted that she 
 
continued to have tenderness over the two head of the flexor carpi 
 
ulnaris.  His impression was ulnar nerve neuritis bilaterally.  
 
Claimant was continued on nonsterodial anti-inflammatories and taken 
 
off work for two weeks.  (Jt. Ex. 24, p. 2; Jt. Ex. 18)
 
 
 
 
 
On May 2, 1990, Dr. Ferlic noted that claimant was tender in both ulnar 
 
grooves.  He continued Ansaid and allowed claimant to return to light 
 
duty work.  He also noted that he would speak to the employer about a 
 
job which did not involve repetitive flexion of claimant's elbows.  
 
(Jt. Ex. 24, p. 2; Jt. Ex. 19)
 
 
 
On May 23, 1990, Dr. Ferlic thought claimant's ulnar neuritis was 
 
resolving.  She was kept on light duty for another month.  (Jt. Ex. 24, 
 
p. 3)
 
 
 
On July 12, 1990, Dr. Ferlic continued claimant on light duty and noted 
 
that she had continued tenderness over the ulnar nerve.  A tennis elbow 
 
band relieved symptoms of medial epicondylitis but she indicated the 
 
tingling had grown stronger.  (Jt. Ex. 24, p. 3)
 
 
 
On August 8, 1990, claimant returned to Dr. Ferlic and requested that 
 
she be allowed to return to work at her regular job and at her regular 
 
hours.  Claimant continued to sporadically experience symptoms.  When 
 
she returned to work claimant attempted to avoid repetitive flexion of 
 
her elbows.  (Jt. Ex. 24, p.3)  Claimant credibly testified that she 
 
wanted to return to regular duty work because light duty work left her 
 
in limbo.  She explained that defendant employer does not have specific 
 
light duty jobs. 
 
 
 
 If there was an open job that no one else was doing, claimant was 
 
placed in that job as a light duty job.  The plant nurse did not have 
 
any input into work assignments.  She was allowed to return to work 
 
without restriction.
 
 
 
On August 27, 1990, claimant was able to bid into a different job 
 
packing carton on the HRI line.  (Jt. Ex. 7)  This job, which she still 
 
held on the day of the hearing, does not require that she perform the 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
extensive elbow flexion required in the reel pack job.  Claimant bid 
 
into this job because it was the first one that came up that did not 
 
require the extensive repetitive elbow flexions.  Mike Mann, an 
 
assistant supervisor, testified that he sees claimant on a daily basis 
 
and that she is a good worker.
 
  
 
  He has never had any trouble getting her to do her work.  He also 
 
agreed that her current job is less repetitive than the previous work 
 
she did on the reel pack line.  He also agreed with claimant's 
 
testimony when she explained how the bidding process worked.  The 
 
bidding process was the only way that claimant could move into a less 
 
repetitive job.
 
 
 
Claimant returned to Dr. Ferlic on May 8, 1991 and was still 
 
experiencing tingling in her fingers and problems with ulnar nerve 
 
numbness.  There was still some tenderness at her elbows in the cubital 
 
groove.  Dr. Ferlic recommended holding off on ulnar nerve surgery.  
 
(Jt. Ex. 24, p. 4)  
 
 
 
On May 13, 1991, Dr. Ferlic assigned claimant a 5 percent impairment 
 
rating for her carpal tunnel release.  He specifically stated that his 
 
"rating does not include her ulnar nerve symptomatology which she 
 
currently has and [which] has not reached its maximum medical 
 
improvement." (Jt. Ex. 25)
 
 
 
On April 24, 1992, Pat Luse, D.C., evaluated claimant and determined 
 
that claimant had reached maximum medical improvement and that she had 
 
(per the AMA Guides to The evaluation of Permanent Impairment, Third 
 
Edition) a 10 percent impairment rating for each upper extremity due to 
 
mild entrapment of both the right and left ulnar nerves at the elbow.  
 
(Jt. Ex. 32, p. 5)  He also determined that claimant would be subject 
 
to recurrent problems in the area of both upper extremities depending 
 
upon the environmental activities she performed.  In his opinion 
 
claimant would be restricted from repetitive motion work with either 
 
upper extremity.  (Jt. Ex. 32, p. 6)  Dr. Luse also determined 
 
that sometime in the future claimant may require surgery for both 
 
ulnar nerves.  (Jt. Ex. 32, p. 8)
 
 
 
Repeat nerve conduction studies and an EMG performed in August of 1992 
 
revealed that there was no EMG evidence for an ulnar neuropathy.  (Jt. 
 
Ex. 27, p. 2)
 
 
 
John C. Goldner, M.D., examined claimant and reviewed her medical 
 
records for the purpose of an evaluation and on August 20, 1992 opined 
 
that claimant did not have compression of her ulnar nerves and 
 
therefore did not have ulnar neuritis.  However, he did conclude that 
 
she had pain in the elbow and in the ulnar nerve distribution and it 
 
was  his opinion that the pain was related to tendinitis and the 
 
repetitive use of her arms.  (Jt. Ex. 28, p. 2, 3)  He further 
 
concluded that claimant did not have any impairment so long as 
 
she did not have to be involved in work that required active 
 
repetitive trauma over a long period of time.  (Jt. Ex. 28, p. 3)  
 
 
 
The very fact that Dr. Goldner determined that claimant 
 
would have no impairment if she limited her activity, is evidence of 
 
impairment.  Without limiting her normal behavior claimant would suffer 
 
from permanent impairment.  Dr. Goldner's opinion supports the 
 
conclusion that claimant has suffered permanent disability because she 
 
must limit her activities in order to avoid symptom flare-up.  
 
In his letter of December 21, 1994, Dr. Goldner again confirms 
 
that his diagnosis of tendinitis will have a decreased symptomatology 
 
if activity, or trauma, is decreased or ended. 
 
 
 
 This is evidence of permanent disability when claimant must refrain 
 
from engaging in conduct in order to avoid symptom flare-up.  (Jt. Ex. 
 
29)  Dr. Goldner confirmed in December of 1994 that claimant had 0 
 
percent impairment rating, the same rating he had determined in his 
 
report of August 1992.
 
 
 
On December 2, 1994, Frederick R. Entwistle, M.D., performed an 
 
independent medical examination of claimant.  He determined that the 
 
fact that there is not a block, as noted on the nerve conduction 
 
studies, does not mean that the ulnar nerves have not been irritated 
 
and inflamed.  The nerves clinically appeared to be irritated as Dr. 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
Ferlic and Dr. Luse pointed out.  Use of the elbows and forearms 
 
exacerbated claimant's problems.  On examination, the claimant did have 
 
symptoms and findings consistent with bilateral ulnar neuritis.  
 
He determined that the claimant had permanent impairment bilateral 
 
impairment.  Per the AMA Guides to Evaluation of Permanent Impairment, 
 
Fourth Edition, he determined that claimant had a 10 percent 
 
impairment to each upper extremity as a result of her bilateral 
 
ulnar neuritis.  He also determined that her repetitive production 
 
work for defendant employer from the time she began through March 
 
1990 caused her ulnar problems.  Claimant is going to have to be 
 
careful with repetitiveuse of her forearms, wrists and elbows in 
 
the future. (Jt. Ex. 30, p. 5)  Again, the fact that claimant will 
 
have to limit her activity in the future to control symptom flare-up 
 
indicates that she suffers from permanent disability.  
 
Dr. Entwistle's fee for performing the independent medical examination 
 
was $500.00 and has been paid by claimant.  (Jt. Ex. 48, p. 2)  
 
Claimant traveled 312 total miles to undergo the independent 
 
medical examination.  (Jt. Ex. 48, p. 1)
 
 
 
                  ANALYSIS AND CONCLUSIONS OF LAW
 
 
 
The first issue to be determined is whether claimant's work injury of 
 
March 13, 1990 resulted in any permanent disability and if so, whether 
 
the disability is causally connected to her work injury.
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the injury is a proximate cause of the disability on 
 
which the claim is based.  A cause is proximate if it is a substantial 
 
factor in bringing about the result; it need not be the only cause.  A 
 
preponderance of the evidence exists when the causal connection is 
 
probable rather than merely possible.  Blacksmith v. All-American, 
 
Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 
 
215 N.W.2d 296 (Iowa 1974).
 
 
 
The question of causal connection is essentially within the domain of 
 
expert testimony.  The expert medical evidence must be considered with 
 
all other evidence introduced bearing on the causal connection between 
 
the injury and the disability.  The weight to be given to any expert 
 
opinion is determined by the finder of fact and may be affected by the 
 
accuracy of the facts relied upon by the expert as well as other 
 
surrounding circumstances.  The expert opinion may be accepted or 
 
rejected, in whole or in part.  Sondag v. Ferris Hardware, 
 
220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 
 
217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 
 
133 N.W.2d 867 (1965).
 
 
 
Both Drs. Luse and Entwistle clearly have determined that claimant has 
 
permanent impairment and that claimant's permanent impairment is as a 
 
result of not only her work injury but also a result of her work for 
 
defendant employer.  Additional persuasive evidence of permanent 
 
impairment is found in the report of Dr. Goldner.  While Dr. Goldner 
 
has determined that claimant has no permanent impairment, he has also 
 
determined that to avoid future symptoms or problems claimant should 
 
limit or avoid repetitive work.  Dr. Goldner's determination 
 
that claimant should change her work activity indicates that she 
 
has suffered permanent impairment.  To avoid ongoing repetitive 
 
use of her elbows claimant has switched to a job that requires 
 
less use of her elbows.  It is determined that claimant has 
 
suffered permanent disability and that her permanent disability 
 
is causally connected to her work injury of March 13, 1990 and 
 
to her work for defendant employer.The next issue to be addressed 
 
is claimant's entitlement to permanent partial disability benefits.  
 
 
 
Benefits for permanent partial disability of two members caused by a 
 
single accident is a scheduled benefit under section 85.34(2)(s); the 
 
degree of disability must be computed on a functional basis with a 
 
maximum benefit entitlement of 500 weeks.  Simbro v. Delong's 
 
Sportswear, 332 N.W.2d 886 (Iowa 1983).
 
 
 
It is determined that Dr. Entwistle's evaluation of claimant's actual 
 
loss of use of her upper extremities is the most reliable.  Dr. 
 
Entwistle is more qualified by training and experience.  His report is 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
also the most recent which is indicative of claimant's situation at the 
 
time of the hearing.  It is determined based on Dr. Entwistle's report 
 
that claimant has sustained a 10 percent loss of use, due to ulnar 
 
neuritis, of both her left and her right arm.  Each 10 percent loss of 
 
the arm converts to 6 percent of the whole person based on 
 
Table 3 of the AMA Guides to the Evaluation of Permanent Impairment, 
 
Fourth Edition.  Per the Combined Values Chart of the Guides, page 
 
322, claimant's impairment to the body as a whole is 12 percent.   
 
Thus, claimant is entitled to 60 weeks of permanent partial disability.  
 
 
 
The final issue to be determined is whether claimant is entitled to 
 
reimbursement for an independent medical examination.  
 
 
 
Iowa Code section 85.39 permits an employee to be reimbursed for 
 
subsequent examination by a physician of the employee's choice where an 
 
employer-retained physician has previously evaluated "permanent 
 
disability" and the employee believes that the initial evaluation is 
 
too low.  The section also permits reimbursement for reasonably 
 
necessary transportation expenses incurred and for any wage loss 
 
occasioned by the employee's attending the subsequent examination.
 
 
 
Defendants are responsible only for reasonable fees associated with 
 
claimant's independent medical examination.  Claimant has the burden of 
 
proving the reasonableness of the expenses incurred for the 
 
examination.  See Schintgen v. Economy Fire & Casualty Co., File No. 
 
855298 (App. April 26, 1991).  Defendants' liability for claimant's 
 
injury must be established before defendants are obligated to reimburse 
 
claimant for independent medical examination.  McSpadden v. Big Ben 
 
Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
 
 
In August of 1992 Dr. Goldner, an employer retained physician, 
 
evaluated claimant and determined that she had no permanent impairment. 
 
 
 
 Clearly, claimant believed that Dr. Goldner's evaluation was too low, 
 
thus, she sought an independent medical examination by Dr. Entwistle.  
 
The examination by Dr. Luse was done for another file.  Claimant is not 
 
limited to one independent medical examination per employer.  The other 
 
file was a different injury with a different injury date.  Claimant is 
 
entitled to reimbursement for $500.00 for Dr. Entwistle's 
 
independent medical examination as well reimbursement for her 
 
mileage expense to attend the examination.
 
 
 
                              ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
That defendant shall pay claimant sixty (60) weeks of permanent partial 
 
disability at the rate of two hundred sixty_six and 62/100 dollars 
 
($266.62) per week commencing on April 28, 1992.
 
 
 
That defendant shall pay accrued benefits in a lump sum and shall 
 
receive credit for benefits previously paid as set out on the hearing 
 
report.
 
 
 
That defendant shall reimburse claimant five hundred dollars ($500.00) 
 
for the cost of the independent medical examination performed by Dr. 
 
Entwistle, plus the mileage expenses.
 
 
 
 
 
That defendant shall pay interest on the award, as governed by Iowa 
 
Code section 85.30.
 
 
 
That defendant shall pay the costs of this action.
 
 
 
That defendant shall file claim activity reports as requested by the 
 
agency.
 
 
 
Signed and filed this ____ day of April, 1995.         
 
                                 _______________________________
 
                                  TERESA K. HILLARY        
 
                                  DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
Copies To:
 
 
 
Mr Dennis M. McElwain
 
Mr Harry H. Smith
 
Attorneys at Law
 
632-640 Badgerow Bldg
 
P O Box 1194
 
Sioux City IA 51102
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
Ms Judith Ann Higgs
 
Attorney at Law
 
701 Pierce St  Ste 200
 
P O Box 3086
 
Sioux City IA 51102-3086
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                    5-1800; 5-1402.40
 
                                    Filed April 20, 1995
 
                                    Teresa K. Hillary
 
 
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
MARY UNDERWOOD,    
 
          
 
     Claimant,                        File No. 947518
 
          
 
vs.       
 
                                   A R B I T R A T I O N
 
FARMLAND FOODS,    
 
                                      D E C I S I O N
 
     Employer, 
 
     Self-Insured,  
 
     Defendant.     
 
          
 
________________________________________________________________
 
5-1808; 5-1402.40
 
Claimant was determined to have permanent disability based on the 
 
statement of treating and evaluating physicians, particularly because 
 
employer evaluating physician wanted claimant to limit her future 
 
activity.  Claimant determined to have 10 percent loss of use of each 
 
arm and awarded 12 percent body as a whole, or 60 weeks of permanent 
 
partial disability.  Claimant was allowed reimbursement for an IME, 
 
even though she had a previous IME on a different file for different 
 
injury.  The law does not restrict each claimant to only one IME 
 
per employer.