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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KATHY McBRIDE,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 947544
 
            MONFORT, 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 C/O    :
 
            GALLAGHER BASSETT, INC.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Kathy 
 
            McBride, claimant, against Monfort, Inc., employer, and Home 
 
            Insurance Company c/o Gallagher Bassett, Inc., insurance 
 
            carrier, defendants, for benefits as a result of an injury 
 
            which occurred on March 27, 1990.  A hearing was held in Des 
 
            Moines, Iowa, on February 26, 1992, and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Phillip F. Miller.  Defendants were 
 
            represented by Timothy J. Wegman.  The record consists of 
 
            the testimony of John E. Garfield, Ph.D, clinical 
 
            psychologist; Adela J. Niedermann, claimant's sister-in-law; 
 
            Kathy McBride, claimant; Susan D. Sears, vocational 
 
            rehabilitation consultant; Rod Cheney, certified prosthetics 
 
            specialist; Bary Carl, personnel manager; joint exhibits A 
 
            with sub-parts 1-7; claimant's exhibits 3, 4 and 5; and 
 
            defendants' exhibits B, C and E.
 
            
 
                                preliminary matter
 
            
 
                 Claimant objected to defendants' exhibit D.  The 
 
            objection was sustained and the document was not admitted 
 
            into evidence because it had not been timely served within 
 
            fifteen days prior to hearing, as required by paragraph 8 of 
 
            the hearing assignment order.  Exhibit D was accepted as an 
 
            offer of proof at the request of defendants' counsel, as 
 
            well as a portion of the testimony of Bary Carl relating to 
 
            the document.
 
            
 
                 Defendants objected to claimant's exhibits 1 and 2.  
 
            Claimant voluntarily withdrew claimant's exhibits 1 and 2.
 
            
 
                 Both parties voluntarily withdrew sub-part 8 of exhibit 
 
            A, a deposition of claimant, at the request of the deputy, 
 
            because claimant was available at the hearing for both 
 

 
            
 
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            direct and cross-examination.
 
            
 
                 Official notice was taken of the Guides to the 
 
            Evaluation of Permanent Impairment (3d ed. chapter 14 
 
            through 14.5), and Appendix of the glossary, Transcript, 
 
            page 16.
 
            
 
                 Claimant was permitted to amend the petition to request 
 
            an arbitration proceeding instead of a review-reopening 
 
            proceeding without objection by defendants.
 
            
 
                 Claimant withdrew a motion filed two days prior to 
 
            hearing to amend the petition to request additional 
 
            appropriate therapy for claimant for depression and mental 
 
            injury.
 
            
 
                 Claimant objected to defendants' assertion of a claim 
 
            pursuant to Iowa Code section 85.38(2) for credit for 
 
            nonoccupational group plan benefits paid to claimant prior 
 
            to hearing.  The objection was sustained for the reason that 
 
            this issue was not designated as a hearing issue on the 
 
            hearing assignment order and the notes of the prehearing 
 
            deputy do not indicate that this matter was discussed at the 
 
            prehearing conference.  Deputies determine only issues which 
 
            are designated as hearing issues on the hearing assignment 
 
            order.  Presswood v. Iowa Beef Processors, file number 
 
            735442 (Appeal Dec. 1986); Hall v. Larson d/b/a Hilltop 
 
            Pork, No. 846905 (Appeal Dec. April 22, 1991).  Similarly, 
 
            Deputy Industrial Commissioner Bernard J. O'Malley refused 
 
            to determine defendants' credit for nonoccupational group 
 
            health plans, pursuant to Iowa Code section 85.38(2) for the 
 
            reason that it was not designated as a hearing issue on the 
 
            hearing assignment order.  Burk v. Department of Human 
 
            Services, File No. 793416, filed May 18, 1989.
 
            
 
                 Claimant withdrew the issue of whether claimant had 
 
            sustained an occupational disease, pursuant to Iowa Code 
 
            section 85A which appears as a hearing issue on the hearing 
 
            assignment order.
 
            
 
                 The parties agreed that the issue shown as alternate 
 
            care on the hearing assignment order was an issue of whether 
 
            claimant is entitled to future occupational therapy as a 
 
            medical benefit under Iowa Code section 85.27 in order to 
 
            learn how to better use the prosthetic device which replaces 
 
            her amputated right hand and a portion of her right arm.
 
            
 
                 The deputy determined that the issue of whether 
 
            claimant had sustained a compensable psychological injury 
 
            would be determined in the decision because it was raised by 
 
            the discovery and both parties had ample opportunity to 
 
            prepare for this issue.  Formal rules of pleading are not 
 
            required in workers' compensation hearings that require a 
 
            psychological injury to be pleaded in the petition, raised 
 
            at the prehearing conference or designated as a hearing 
 
            issue on the hearing assignment order if it is raised by the 
 
            evidence obtained during prehearing discovery proceedings.  
 
            Shank v. Mercy Hospital Medical Center, File No. 719627 
 
            (Appeal Dec. August 28, 1989).
 
            
 

 
            
 
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                 Defendants presented a brief description of disputes at 
 
            the time of hearing.  The deputy ordered a transcript of the 
 
            hearing.  Both attorneys submitted excellent posthearing 
 
            briefs.
 
            
 
                                      issues
 
            
 
                 The parties presented the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 1.  Whether claimant is entitled to permanent 
 
            disability benefits and, if so, the nature and extent of 
 
            benefits to which she is entitled to include whether 
 
            claimant has sustained an injury to a scheduled member or to 
 
            the body as a whole, and whether claimant has sustained a 
 
            compensable psychological injury;
 
            
 
                 2.  Whether Iowa Code section 85.34(2), which provides 
 
            only for limited recovery for scheduled member injuries, is 
 
            constitutional; and,
 
            
 
                 3.  Whether claimant is entitled to future occupational 
 
            therapy treatments, pursuant to Iowa Code section 85.27, in 
 
            order to better use the prosthetic device which replaces her 
 
            amputated right hand and a portion of her right forearm.
 
            
 
                                 findings of fact
 
            
 
                       entitlement to permanent disability
 
            
 
                         scheduled member/body as a whole
 
            
 
                 It is determined that claimant has sustained a 
 
            scheduled member injury to the right arm which caused a 93 
 
            percent loss of use of the arm and that claimant is entitled 
 
            to 232.5 weeks of permanent partial disability benefits.
 
            
 
                 Claimant, born September 17, 1952, was 37 years old at 
 
            the time of the injury and 39 years old at the time of the 
 
            hearing.  She started to work for the employer on December 
 
            5, 1988, and continued to work for the employer until her 
 
            injury which occurred on March 27, 1990 (Defendants' Exhibit 
 
            C).  At the time of the injury, she was employed as a 
 
            quality control inspector at a salary of approximately 
 
            $18,200 per year (Transcript, pages 143, 144, 168 and 181).
 
            
 
                 Claimant described the injury as follows:
 
            
 
                    A.  I was trying to push some of the meat 
 
                 samples into the grinder.  Some had got stuck 
 
                 along the side and I wanted all of the meat to go 
 
                 through the sample to give accurate test results.  
 
                 I let my hand slip in too far.
 
            
 
                    The auger of the grinder caught my glove and 
 
                 fingers and pulled my hand down into the main part 
 
                 of the grinder.  There was intense pressure and 
 
                 squeezing and a great amount of pain.  I 
 
                 immediately braced my left hand against the side 
 
                 of the grinder and began to try to pull my hand 
 

 
            
 
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                 out.  I thought it would come out certainly 
 
                 injured, but when my arm came out, all I saw was a 
 
                 straight bone on the end of my arm and blood was 
 
                 everywhere.
 
            
 
            (Tr., p. 146)
 
            
 
                 In addition to relating the horrible tragedy which 
 
            occurred, claimant's testimony is the initial evidence that 
 
            the injury affected her right hand and arm.
 
            
 
                 Claimant was transported to Iowa Methodist Medical 
 
            Center where she was treated by Douglas S. Reagan, M.D., an 
 
            orthopedic surgeon (Joint Exhibit A(1), p. 2), who debrided 
 
            the right arm stump and packed the wound on March 27, 1990 
 
            (Jt. Ex. A(1), p. 3), and debrided and closed the amputation 
 
            on March 30, 1990 (Jt. Ex. 2, p. 4).  Post-operatively, the 
 
            patient progressed well with minimum or expected discomfort 
 
            and was discharged on April 2, 1990 (Jt. Ex. A1(1), p. 5).  
 
            On April 9, 1990, Dr. Reagan saw claimant for a follow-up of 
 
            the debridement and closure of the amputation of the right 
 
            arm.  He noted that she had done well (Jt. Ex. A(1), p. 6).
 
            
 
                 On April 23, 1990, he saw claimant again for follow-up 
 
            of the amputation of the right arm and noted that she had 
 
            done extremely well (Jt. Ex. A(1), p. 6).  On May 21, 1990, 
 
            he ordered a below elbow prosthesis for an amputation of the 
 
            arm below the elbow (Jt. Ex. A(1), p. 8).  On September 20, 
 
            1990, Dr. Reagan saw claimant for the final follow-up of the 
 
            amputation of her right arm through the forearm.  He noted 
 
            that the prosthesis which he described as a bio-electric arm 
 
            was working quite well and that claimant had good pinch and 
 
            good control.  He noted that claimant was having pain at the 
 
            mid portion of the distal arm which he suspected was a 
 
            neuroma which did not require treatment.  He noted that she 
 
            was also having a problem with continuous phantom pain.
 
            
 
                 Dr. Reagan determined that claimant had sustained a 
 
            "permanent partial impairment of 90% of the upper extremity 
 
            based on the AMA Guidelines." (Jt. Ex. A(1), p. 7)  In 
 
            addition, he restricted claimant from climbing ladders, 
 
            working with heavy machinery, and working with grinders.  He 
 
            said she would need a job where she would only use her right 
 
            hand as a helper hand and that much of the work would be 
 
            done with the left hand.  He imposed a weight restriction of 
 
            about five pounds to ten pounds for the right hand and said 
 
            she would not be able to do repetitive activity with her 
 
            right hand (Jt. Ex. A(1), p. 7).
 
            
 
                 On August 8, 1990, Dr. Reagan wrote:  The patient may 
 
            return to limited duty work activities without use of the 
 
            right upper extremity effective 8/13/90;...." (Jt. Ex. A(1), 
 
            p. 1)
 
            
 
                 Thus, in reviewing the notes of the treating orthopedic 
 
            surgeon, there is no evidence of injury or disability beyond 
 
            the right forearm and hand.
 
            
 
                 The hospital records show that claimant did not have 
 
            shoulder, neck or back pain but did have elbow pain (Jt. Ex. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            A(2), pp. 1 and 5).
 
            
 
                 Therefore, the hospital records demonstrate only an 
 
            injury to the right hand and forearm with some elbow pain 
 
            without any proof of physical injury to any other part of 
 
            the body.
 
            
 
                 On April 27, 1990, one month after the injury, 
 
            defendants provided claimant with a private rehabilitation 
 
            consultant, Susan D. Sears, R.N., BSN, who described herself 
 
            as a rehabilitation specialist (Tr., p. 196).  Sears worked 
 
            with claimant from April 27, 1990 until September 20, 1990, 
 
            when she received the final fitting on her right hand and 
 
            arm prosthesis (Tr., pp. 107 and 206).
 
            
 
                 A careful examination of the reports submitted by 
 
            Sears, joint exhibit A(6) and the testimony of Sears at 
 
            hearing (Tr. pp. 195-215) disclose no mention of physical 
 
            injury beyond the right arm.
 
            
 
                 Claimant was examined and evaluated on one occasion by 
 
            Karen Kienker, M.D., a physical medicine and rehabilitation 
 
            doctor, who reported on July 10, 1991.
 
            
 
                 Dr. Kienker reported that claimant suffered an 
 
            amputation of her right hand and four inches of her forearm 
 
            in an industrial meat grinder.  Sears reported that claimant 
 
            was right hand dominant (Jt. Ex. A(6), p. 1), but Dr. 
 
            Kienker reported that claimant uses her left hand as her 
 
            dominant hand now.  Dr. Kienker further reported that 
 
            claimant denies any other health problems.  This doctor's 
 
            impression was "[t]raumatic right below elbow amputation." 
 
            (Jt. Ex. A(7), p. 1)  Dr. Kienker related the following 
 
            evaluation:
 
            
 
                    Her percentage of impairment is rated using the 
 
                 American Medical Association Guidelines, Third 
 
                 Edition.  There is a diagram in which if the 
 
                 fingers are all gone there is a 90% impairment and 
 
                 if the arm is gone at the elbow there is a 95% 
 
                 impairment.  I rate hers as a 93% impairment of 
 
                 the right upper extremity.
 
            
 
            (Jt. Ex. A(7), p. 1)
 
            
 
                 Dr. Kienker imposed no restrictions on sitting, 
 
            standing or walking.  She did recommend sedentary work and 
 
            lifting only up to ten pounds occasionally.  She said 
 
            claimant should avoid work which involves fine coordination 
 
            of both hands or which requires heavy use of both hands 
 
            simultaneously.  Claimant should avoid climbing ladders.  
 
            She recommended against claimant's previous job at the meat 
 
            packing plant because it required heavy use of both hands.  
 
            The doctor added that claimant had reduced coordination 
 
            which put her at risk of reinjury (Jt. Ex. A(7), p. 2).
 
            
 
                 Thus, nothing in Dr. Kienker's report indicates any 
 
            physical injury beyond the right forearm.
 
            
 
                 Shoulder injuries have been determined to be injuries 
 

 
            
 
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            to the body as a whole. Alm v. Morris Barick Cattle Co., 240 
 
            Iowa 1174, 38 N.W.2d 161 (1949).  However, this is not a 
 
            shoulder injury.  Hip injuries have been determined to be 
 
            injuries to the body as a whole. Lauhoff Grain v. McIntosh, 
 
            395 N.W.2d 834 (Iowa 1986).  However, this is not an injury 
 
            to the hip.
 
            
 
                 None of the evidence in the case, medical or 
 
            nonmedical, describes a physical injury beyond the right 
 
            hand and forearm.
 
            
 
                 Wherefore, it is determined that claimant has not 
 
            sustained a physical injury to the body as a whole but on 
 
            the contrary claimant's physical injury is limited to the 
 
            right hand and arm.  Therefore, claimant has sustained a 
 
            scheduled member physical injury.
 
            
 
                               psychological injury
 
            
 
                 It is determined that claimant has not sustained a 
 
            psychological injury independent of the normal psychological 
 
            residual effects that normally accompany and are a part of a 
 
            traumatic amputation of a limb.
 
            
 
                 Furthermore, it is determined that psychological 
 
            impairments caused by a scheduled member injury are 
 
            contemplated by the statute and are not compensable 
 
            industrially.
 
            
 
                 Claimant was examined by the clinical psychology 
 
            department of Iowa Methodist Medical Center on the day 
 
            following the injury on March 28, 1990.  The report is 
 
            signed by what appears to be a psychologist and also a 
 
            medical doctor.  This report states that claimant appeared 
 
            oriented and communicative and voiced acceptance of the loss 
 
            of her hand.  However, it appeared that because of the acute 
 
            nature of the injury, she had not yet begun the actual 
 
            grieving process nor had she even been afforded the time to 
 
            herself needed to begin this process (Jt. Ex A(2), p. 6).
 
            
 
                 On April 27, 1990, on the first report of Sears, she 
 
            reported:  "The claimant does not feel she needs any further 
 
            psychological help at this time, as a physchologist [sic] 
 
            spoke with her at the hospital." (Jt. Ex. A(6), p. 3)  In 
 
            the same report, Sears found claimant pleasant and 
 
            cooperative and had a very good support system from her 
 
            family and friends (Jt. Ex. A(6), pp. 1 and 2).  On May 21, 
 
            1990, Sears reported: "I feel the claimant is handling the 
 
            loss of her limb quite well." (Jt. Ex. A(6), p.5).
 
            
 
                 Sears' report of June 22, 1990, demonstrates no 
 
            evidence of any psychological problems.  This report 
 
            discussed with optimism the choice of appropriate prosthesis 
 
            and a possible return to work in a management position (Jt. 
 
            Ex. A(6), pp. 8 and 9).  On July 25, 1990, there is no 
 
            evidence of psychological problems but on the contrary Sears 
 
            reported:  "Ms. McBride stated that this was great and was 
 
            quite excited about her new arm and pleased with the 
 
            appearance of it.  She practiced closing and opening the new 
 
            limb." (Jt. Ex. A(6), p. 11)  On October 24, 1990, Sears 
 

 
            
 
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            gives no evidence of psychological injury but on the 
 
            contrary reports:  "Ms. McBride has decided not to return to 
 
            Monfort.  Ms. McBride states that she began school at 
 
            Marshalltown Community College on August 21, taking a full 
 
            load of courses in business."  (Jt. Ex. A(6), p. 13).  On 
 
            October 15, 1990, in the final report of Sears, there is no 
 
            mention or indication of psychological difficulties (Jt. Ex. 
 
            A(6), p. 15).
 
            
 
                 At the hearing, Sears testified that in her opinion 
 
            claimant was dealing with the loss of her arm quite well.  
 
            Claimant indicated that somebody had visited her while she 
 
            was in the hospital concerning the loss of her arm and that 
 
            claimant was excited about obtaining a prosthesis and the 
 
            ability it would give her once she received it.  Sears 
 
            testified that claimant never asked for psychological 
 
            counseling for the loss of her arm (Tr., pp. 198 and 199).  
 
            Sears testified:  "Ms. McBride appeared as if she was 
 
            handling the loss of her arm quite well.  She had 
 
            appropriate conversation and was talking about everyday 
 
            activities and dealing with them."  (Tr., p. 205)  Sears 
 
            acknowledged that she did not observe claimant after 
 
            September 20, 1990 (Tr., p. 206).  Sears acknowledged that 
 
            claimant was upset about the loss of her arm but denied that 
 
            claimant was depressed (Tr., p. 209).  Sears admitted that 
 
            she did not know, interview or talk to any of the family 
 
            members to determine their observations, nor did she talk to 
 
            the person who interviewed claimant in the hospital in the 
 
            clinical psychology department (Tr., p. 213).
 
            
 
                 Rodney W. Cheney, a certified prosthetist-orthotist, 
 
            testified at hearing that he fitted claimant for the 
 
            prosthesis.  During those sessions, he found claimant to be 
 
            intelligent and responsive.  She did not cry and was not 
 
            upset.  She received an excellent fit on the prosthesis 
 
            (Tr., pp. 214-218).  In a letter dated May 9, 1990, which 
 
            recommended the myoelectric prosthesis over the conventional 
 
            body part prosthesis, there was no indication from Cheney 
 
            that claimant manifested any indications of psychological 
 
            injury (Jt. Ex. A(5).
 
            
 
                 Bary Carl, personnel manager, testified that he hired 
 
            claimant and promoted her to the management position in the 
 
            quality assurance department as a quality assurance 
 
            technician.  He saw claimant in the hospital and a couple of 
 
            times afterwards. With respect to claimant's appearance on 
 
            those occasions, Carl testified as follows: "Very good.  She 
 
            always appeared good to me.  One of the things that 
 
            impressed me, that she was of good Iowa stock and 
 
            levelheaded and dealt with reality and that was why we 
 
            promoted her.  After the accident I was very impressed with 
 
            the way she handled it." (Tr., p. 228)  Carl further 
 
            testified that when he received the letter from claimant 
 
            dated August 20, 1990, that she was not coming back to work 
 
            because she intended to go to school (Defendants' Exhibit B) 
 
            that he completed the separation and termination papers for 
 
            claimant on August 22, 1990 (Def. Ex. C).  On this form, 
 
            Carl testified that he rated claimant above average in all 
 
            categories - quality of work, productivity, ability to get 
 
            along with others, attendance and punctuality, and safety 
 

 
            
 
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            record.  In answer to the question, "would you rehire," Carl 
 
            marked, "yes." (Def. Ex. C).
 
            
 
                 John C. Garfield, Ph.D, a licensed clinical 
 
            psychologist, testified by report (Ex. A(4), pp. 1-9; Tr., 
 
            pp. 47-108).  He examined claimant for an hour and a half on 
 
            April 4, 1991, approximately one year after the date of 
 
            injury.  He supplemented his clinical impressions with a 
 
            Minnesota Multiphasic Personality Inventory (MMPI).  He did 
 
            not make a written report until October 28, 1991 (Tr., p. 
 
            49; Jt. Ex. A(4), p. 1).  No explanation was offered for the 
 
            delay between the date of his examination and the date of 
 
            his report.  He testified that claimant displayed symptoms 
 
            of post-traumatic stress disorder when confronted with 
 
            reminders of the accident such as the place of her 
 
            employment and the bloody clothing she was wearing at the 
 
            time of the injury (Tr., pp. 51 and 52).  This was further 
 
            manifested by nightmares, social withdrawal, her own 
 
            perception of loss of physical attractiveness and continuous 
 
            phantom limb pain, a phenomenon experienced by persons who 
 
            have lost a limb (Tr., pp. 51-54).  Dr. Garfield said these 
 
            symptoms were attributable to the traumatic injury claimant 
 
            suffered on March 27, 1990 (Tr., p. 58).
 
            
 
                 In his written report on October 28, 1991, Dr. Garfield 
 
            rated claimant as follows:  "In terms of the Guide to 
 
            Impairment of the American Medical Association I would rate 
 
            Kathy McBride as having suffered a 20-25% permanent 
 
            impairment based upon her psychological reactions to the 
 
            traumatic injury suffered at the Monfort plant on March 27, 
 
            1990." (Jt. Ex. A(4), p. 2)
 
            
 
                 Dr. Garfield admitted in his hearing testimony that in 
 
            the vernacular, he goofed.  Because he was not aware that 
 
            the second edition of the Guides which he used had been 
 
            superseded by the third edition (Tr. p. 59).  The Guides to 
 
            the Evaluation of Permanent Impairment (3d ed.), published 
 
            by the American Medical Association, shows that the first 
 
            printing of the third edition was in November 1988, 
 
            approximately three years prior to Dr. Garfield's letter of 
 
            October 28, 1991.
 
            
 
                 Dr. Garfield concluded by opining that claimant was not 
 
            the normal emotional person that she was before this 
 
            traumatic amputation; that she has sustained an emotional 
 
            injury; and, that emotional reactions are systemic and 
 
            involve the entire central autonomic nervous system 
 
            including the brain and the head (Tr., pp. 84 and 85).
 
            
 
                 Dr. Garfield acknowledged that he only saw claimant on 
 
            one occasion, that he did not examine the medical records of 
 
            Dr. Reagan or Dr. Kienker, nor had he examined the 
 
            vocational rehabilitation reports of Sears or the report of 
 
            Cheney.  He did not speak with claimant's family or friends 
 
            (Tr., pp. 87 and 88).  He did not talk with any 
 
            representatives of employer (Tr., p. 92).  Dr. Garfield 
 
            admitted that he had not treated claimant.  He said that 
 
            using the third edition, which no longer gives numerical 
 
            ratings of impairment, he would place claimant in Class 3, 
 
            table I, on page 233, which is worded:  "impairment levels 
 

 
            
 
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            compatible with some but not all useful function." (Tr., p. 
 
            105)
 
            
 
                 Claimant was examined by Raymond Moore, Ph.D, a 
 
            licensed clinical psychologist and neuropsychologist, on 
 
            February 11, 1992, and he reported on February 14, 1992 that 
 
            he performed the Mini Mental Status exam and she made a 
 
            perfect score of 24 out of 24 possible points indicating 
 
            that her mental capacities of registration, attention and 
 
            calculation, and language functioning are within normal 
 
            limits (Jt. Ex. A(3), pp. 1 and 2).
 
            
 
                 On the Pain Inventory, she did not rate the average 
 
            intensity of the pain very high, giving it a rating of 
 
            uncomfortable but she stated it was constant and continuous 
 
            (Jt. Ex. A(3), p. 3).  Dr. Moore concluded:
 
            
 
                    Summarizing the data which I collected directly 
 
                 from Mrs. McBride, I asked her about numerous 
 
                 symptoms of psychiatric disorders, but I can make 
 
                 no diagnosis based upon her responses, and I would 
 
                 say that while she is a somewhat shy and sensitive 
 
                 person who tends toward very mild depression, that 
 
                 basically she is a normal person.
 
            
 
            (Jt. Ex. A(3), p. 5)
 
            
 
                 Dr. Moore examined the report of Dr. Reagan, Dr. 
 
            Kienker, Dr. Garfield, Iowa Methodist Hospital Clinical 
 
            Psychology Department, and the reports of Rehabilitation 
 
            Specialist Sears.  Dr. Moore said that except for Dr. 
 
            Garfield's report, the others opinions which he read also 
 
            substantiated his own opinion that Mrs. McBride is a normal, 
 
            mostly healthy woman who has made a good adjustment to the 
 
            traumatic loss of part of her right arm (Jt. Ex. A(3), p. 
 
            6).
 
            
 
                 Dr. Moore also examined the MMPI performed by Dr. 
 
            Garfield and stated that he found the profile suggests a 
 
            normal person who is slightly introverted and slightly 
 
            depressed (Jt. Ex. A(3), p. 6).  Dr. Moore testified that 
 
            his interpretation is that a disability cannot be declared 
 
            permanent until treatment has failed to remedy it, however, 
 
            claimant has made no effort whatsoever to seek any kind of 
 
            treatment for her mild depression.  He said claimant is an 
 
            unimpaired person who puts in a long day as an effective 
 
            student who is earning a 3.0 grade average, parenting her 
 
            children, managing her finances, taking care of her own 
 
            personal needs and helping her mother (Jt. Ex. A(3), p. 7).  
 
            Dr. Moore's final opinion was as follows:  "In summary, I 
 
            find no evidence that Kathy McBride suffers from a 
 
            diagnosable mental disorder, I find that she is a normal 
 
            person, and I see no evidence that the traumatic experience 
 
            that she had on March 27, 1990, has had any significant 
 
            impact on her current mental functioning." (Jt. Ex. A(3), p. 
 
            8)
 
            
 
                 From the foregoing evidence, it is determined that the 
 
            opinion of Dr. Garfield is outweighed by the testimony of 
 
            Dr. Moore, Rehabilitation Specialist Sears, and Dr. Reagan.  
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Furthermore, as noted, Dr. Garfield's opinion is flawed in 
 
            several respects, (1) that he did not examine the reports of 
 
            the other medical practitioners; (2) he used an outdated 
 
            edition of the AMA Guides; (3) that claimant has not sought 
 
            any treatment for psychological injury, but on the contrary 
 
            the refused treatment when it was offered to her by Sears; 
 
            and, (4) the forward movement and success that claimant has 
 
            made of her life through family relationships, financially 
 
            and scholastically, do not give any evidence that claimant 
 
            is suffering from a psychological injury.  The psychological 
 
            symptoms that claimant has experienced are an integral part 
 
            of the grieving and recovery process for a person who has 
 
            suffered the sudden and unexpected, tragic and traumatic 
 
            loss of a limb.
 
            
 
                 Even if claimant had proven an independent 
 
            psychological injury which was the sequelae of the 
 
            amputation injury, claimant would not be entitled to recover 
 
            industrial disability benefits for an injury to the body as 
 
            a whole, because it has been determined by the industrial 
 
            commissioner that psychological impairments caused by a 
 
            scheduled member injury are contemplated in the schedule 
 
            itself and do unto constitute an extension of the injury to 
 
            the body as a whole
 
            
 
                 Cannon v. Keokuk Steel Casting, File No. 795331 (Appeal 
 
            Dec. January 27, 1988).  Mortimer v. Fruehauff Corporation, 
 
            File No. 506116, filed February 22, 1990.  Cannon was a 
 
            hearing loss case but the commissioner cited a decision made 
 
            by himself three months earlier where a claim was made for 
 
            psychological injuries where he held that benefits for a 
 
            scheduled member injury under Iowa Code section 85.34 
 
            contemplates compensation for any effect on claimant's 
 
            earning capacity caused by psychological problems stemming 
 
            from a scheduled member injury.  Pilcher v. Pennick & Ford, 
 
            File No. 618597 (Appeal Dec. October 21, 1987).
 
            
 
                 Mortimer was a psychological injury case.  The 
 
            commissioner's comments in Pilcher were dicta because 
 
            claimant failed to prove a change of condition in order to 
 
            be entitled to any benefits.  Cannon and Mortimer did decide 
 
            the issue, however, and are res judicata.  The 
 
            commissioner's decision in Cannon and the deputy 
 
            commissioner's decision in Mortimer follow an old and 
 
            established line of precedent that the amount payable for 
 
            specific injuries includes both payment for the impairment 
 
            and payment for the reduced capacity to labor.  Schell v. 
 
            Central Engineering Company, 232 Iowa 421, 424, 4 N.W.2d 
 
            399, 401 (1942).
 
            
 
                 The schedule which specifically fixes the amount to be 
 
            paid on account of disability resulting from a single 
 
            scheduled member injury must be construed as exclusive from 
 
            all other provisions of the act.  Moses v. National Union 
 
            Coal Mining Co., 194 Iowa 819, 824, 184 N.W. 746, 748 
 
            (1921).
 
            
 
                 The Supreme Court of Iowa has recognized the unfairness 
 
            in the situations, however, it has refused to judicially 
 
            legislate but has recognized that any change should come 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            from the legislature itself. Brugioni v. Saylor Coal Co., 
 
            198 Iowa 135, 138, 197 N.W. 470, 471 (1924); Graves v. Eagle 
 
            Iron Works, 331 N.W.2d 115 (Iowa 1983); Soukup v. Shores 
 
            Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                                   entitlement
 
            
 
                 It is determined that claimant is entitled to 232.5 
 
            weeks of permanent partial disability benefits based upon a 
 
            93 percent permanent physical and functional impairment to 
 
            the right arm.
 
            
 
                 In this case, Dr. Kienker's evaluation is preferred 
 
            over that of Dr. Reagan.  A treating physician's testimony 
 
            is not entitled to greater weight as a matter of law than 
 
            that of a physician who later examines claimant in 
 
            anticipation of litigation.  The weight to be given 
 
            testimony of a physician is a fact issue to be decided by 
 
            the industrial commissioner in light of the record the 
 
            parties develop.  Rockwell Graphics systems, Inc. v. Prince, 
 
            366 N.W.2d 187, 192 (Iowa 1985).
 
            
 
                 In this case it is determined that Dr, Kienker has 
 
            arrived at the most accurate determination.  An examination 
 
            of Figure 2 on page 17 of the Guides to the Evaluation of 
 
            Permanent Impairment (3d ed.), published by the American 
 
            Medical Association, shows that an amputation of all digits 
 
            at the metacarpophalangel joint level is considered to be 90 
 
            percent of the upper extremity and that an amputation 
 
            immediately distal to the elbow joint is a 95 percent 
 
            impairment of the upper extremity.  Claimant's amputation is 
 
            clearly proximal to the metacarpophalangel joint and distal 
 
            to the elbow joint.  She lost approximately four inches off 
 
            the end of her forearm as well as the complete right hand.  
 
            Dr. Reagan does not give any explanation at how he arrived 
 
            at his rating whereas Dr. Kienker does give a complete and 
 
            accurate description of how she arrived at her rating.  Even 
 
            though the industrial commissioner and deputies do not have 
 
            the authority to award industrial disability for scheduled 
 
            member injuries, nevertheless, they ar authorized to prorate 
 
            compensation payments within established norms when the loss 
 
            is less than something provided in the schedule.  Blizek v. 
 
            Eagle Signal Co., 164 N.W.2d 84 (Iowa 1969).  The 
 
            established norms in the Blizek decision were to the 
 
            provisions in the scheduled member statute, section 
 
            85.64(2)(n).  In this case the established norms are 
 
            provided by Figure 2 of the Guides to Evaluation of 
 
            Permanent Impairment, which is found on page 17 of the third 
 
            edition and page 15 of the third edition (revised).  Dr. 
 
            Kienker's proration of the impairment is found to be fair 
 
            and accurate based on the norm provided by the AMA Guides.
 
            
 
                 Even though the industrial commissioner and deputies 
 
            have used a number of factors in addition to impairment 
 
            ratings in order to determine scheduled member disability 
 
            over the years, the impairment rating in this case is 
 
            determined to be the proper amount of permanent partial 
 
            disability to the right arm.  Soukup v. Shores Co., 222 Iowa 
 
            272, 268 N.W. 598 (1936); Weiland v. Swanson, File No. 
 
            783580 (Appeal Dec. December 29, 1989); Hernandez v. Iowa 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Packing Company, File No. 764529, filed September 25, 1985; 
 
            Walker v. Sheller Globe Corp., File No. 741065, filed 
 
            October 12, 1984; Arce v. Sandra pollock, File No. 707677, 
 
            filed November 8, 1983; Conyers v. Ling-Casler Joint 
 
            Venture, Vol. 1, No. 2, State of Iowa Industrial 
 
            Commissioner Decisions, 309 (1984); Langrehr v. Warren 
 
            Packing Corp., Thirty-fourth Biennial Rep., Iowa Ind. Comm'r 
 
            179 (1980); Pizza Hut of Washington, Inc. v. St. Paul Fire & 
 
            Marine Insurance Company, II Iowa Indus. Comm'r Rep. 317 
 
            (1979); Smith v. Winnebago Industries, File No. 824666, 
 
            filed April 2, 1991.  Therefore, Dr. Kienker's rating is 
 
            preferred over Dr. Reagan's rating.  Ninety-three percent of 
 
            the arm allowance of 250 weeks (Iowa Code section 
 
            85.34(2)(m) equals 232.5 weeks.
 
            
 
                 constitutionality of iowa code section 85.34(2)
 
            
 
                 It is determined that the constitutionality of the 
 
            schedule member provisions of the workers' compensation law 
 
            has been determined by the Iowa Supreme Court and that this 
 
            agency lacks the authority to determine the validity of a 
 
            statute.  Spalding v. Emco Industries, File No. 892690 
 
            (Appeal Dec. November 28, 1990 written by Clair R. Cramer).
 
            
 
                 It is noted that claimant's counsel in this case also 
 
            represented claimant in the Spalding case.  Probably the 
 
            most effective way to dispose of this issue in this case is 
 
            to quote acting commissioner Clair R. Cramer in that case 
 
            with the following language:
 
            
 
                    Claimant raises as an issue on appeal whether 
 
                 the scheduled member provisions of the Iowa 
 
                 Workers' Compensation Law are constitutional.  
 
                 Claimant contends that these sections of the law 
 
                 in their application to claimant operate to deny 
 
                 her equal protection of the law as compared to 
 
                 other claimants who suffer injuries that extend to 
 
                 the body as a whole, and thus are compensated on 
 
                 the basis of industrial disability.  Claimant 
 
                 relies on both equal protection under the U.S. 
 
                 Constitution and Article I, Section 6 of the Iowa 
 
                 Constitution.  These sections have been previously 
 
                 upheld by the Iowa Supreme Court as an appropriate 
 
                 determination by the legislature to treat various 
 
                 injuries differently under the workers' 
 
                 compensation system.  Graves v. Eagle Iron Works, 
 
                 331 N.W.2d 116 (Iowa 1983).  Claimant also alleges 
 
                 that the statute is unconstitutional on its fac.  
 
                 This agency lacks jurisdiction to determine the 
 
                 constitutional validity of a statute.  Salsbury 
 
                 Laboratories v. Iowa Dept. of Environmental 
 
                 Quality, 276 N.W.2d 830 (Iowa 1979).
 
            
 
                 Wherefore, it is determined that the scheduled member 
 
            provisions of Iowa Code section 85.34(2) have been 
 
            determined to be constitutional and that this agency lacks 
 
            jurisdiction to determine the validity of the statute.
 
            
 
                               occupational therapy
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 It is determined that claimant is entitled to future 
 
            occupational therapy in order to learn how to adapt and more 
 
            proficiently manipulate the prosthetic device with which she 
 
            has been fitted.
 
            
 
                 This issue was described variously as alternate care, 
 
            physical therapy and occupational therapy.  Defendants 
 
            disputed claimant's entitlement to future occupational 
 
            therapy as described above at the time of hearing (Tr., pp. 
 
            8 and 9).  Rehabilitation Specialist Sears recommended 
 
            occupational therapy (Jt. Ex. A(6), p.2) to learn finer 
 
            motor control of her new prosthetic limb (Jt. Ex. A(6), pp. 
 
            11 and 12).  Dr. Kienker stated that claimant would likely 
 
            benefit from occupational therapy in the use of her 
 
            prosthesis.  She only had a brief instruction in its use and 
 
            very likely would become more skilled with more detailed 
 
            instruction (Jt. Ex. A(7), p. 2).  Sears testified that 
 
            Cheney mentioned it and Dr. Reagan indicated it was 
 
            available but it was never set up (Tr., pp. 201, 202, 210, 
 
            211).  
 
            
 
                   Prostetist Cheney testified he recommended 
 
            occupational therapy (Tr., pp. 219 and 220) but he did not 
 
            know if Sears was present at that time.  In any event, 
 
            Cheney testified that it must be ordered by a medical doctor 
 
            and not by him (Tr., p. 221).
 
            
 
                 Claimant's counsel asserted at the hearing that 
 
            occupational therapy had been denied (Tr., p. 38).  
 
            Defendants' counsel maintained that Cheney recommended 
 
            occupational therapy but claimant did not follow up on it 
 
            and request it (Tr., p. 46).
 
            
 
                 Claimant acknowledged in her testimony that she had not 
 
            received any occupational therapy (Tr., p. 163).  Claimant 
 
            related that she did not use the prosthesis very much 
 
            because she did not know how to operate it well.  She 
 
            maintained that she was never given a referral to an 
 
            occupational therapist (Tr., pp. 176 and 177).  She said the 
 
            prosthesis is very limited in what it can do (Tr., p. 178).  
 
            As the hearing ended, claimant was still requesting 
 
            occupational therapy (Tr., p. 189) because it had never been 
 
            ordered for her (Tr., p. 191).  She was still waiting to be 
 
            referred for occupational therapy (Tr., p. 194).
 
            
 
                 In his posthearing brief, defendants' counsel stated 
 
            that employer does not dispute claimant's request for 
 
            occupational therapy to learn to better utilize the 
 
            prosthetic device.
 
            
 
                 Wherefore, it is determined that claimant is entitled 
 
            to future occupational therapy, physical therapy, or other 
 
            alternate care of good quality and at times and places 
 
            convenient to claimant as well as medical mileage to and 
 
            from occupational therapy sessions.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
                 That claimant sustained a scheduled member injury to 
 
            her right arm and that claimant did not sustain a physical 
 
            injury to the body as a whole (Iowa Code section 
 
            85.34(2)(m).  Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 
 
            N.W.2d 569 (1943).  Soukup v. Shores Co., 222 Iowa 272, 268 
 
            N.W. 598 (1936).  Barton v. Nevada Poultry Co., 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).  Kellogg v. Shute and Lewis Coal 
 
            Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that she sustained a 
 
            psychological injury and if she had done so it would not 
 
            have been compensable industrially because Iowa Code section 
 
            85.34(2) with respect to scheduled member injuries 
 
            contemplates compensation for any effect on claimant's 
 
            earning capacity caused by psychological problems stemming 
 
            from an injury to a scheduled member.  Pilcher v. Pennick & 
 
            Ford, File No. 618597 (Appeal Dec. October 21, 1987); Cannon 
 
            v. Keokuk Steel Casting, File No. 795331 (Appeal Dec. 
 
            January 27, 1988); Mortimer v. Fruehauff Corporation, File 
 
            No. 506116, filed February 22, 1990.
 
            
 
                 That claimant is entitled to 232.5 weeks of permanent 
 
            partial disability benefits based upon a 93 percent 
 
            permanent physical and functional impairment to the right 
 
            arm.  Iowa Code section 85.32(2)(m)(u).
 
            
 
                 That claimant is entitled to quality occupational 
 
            therapy at reasonably convenient times and places and 
 
            medical mileage compensation for these treatments.
 
            
 
                 That the scheduled member provisions of Iowa Code 
 
            section 85.34(2) have been determined to be constitutional 
 
            and that this agency lack authority to determine the 
 
            constitutionality of the statute.  Spalding v. Emco 
 
            Industries, File No. 892690 (Appeal Dec. November 28, 1990).
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay to claimant two hundred thirty-two 
 
            point five (232.5) weeks of permanent partial disability 
 
            benefits at the stipulated rate of two hundred twenty-three 
 
            and 98/100 dollars ($223.98) per week in the total amount of 
 
            fifty two thousand seventy-five and 35/100 dollars 
 
            ($52,075.35), commencing on September 19, 1990, as 
 
            stipulated to by the parties.
 
            
 
                 That all accrued weekly benefits are to be paid in a 
 
            lump sum. 
 
            
 
                 That interest shall accrue, pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants are to arrange for occupational therapy 
 
            for claimant within thirty (30) days after the signing and 
 
            filing of this order.
 
            
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
                 That the costs of this action including the cost of the 
 
            attendance of the court reporter at hearing and the cost of 
 
            the transcript are to be charged to defendants, pursuant to 
 
            Iowa Code section 86.40 and 86.19(1) and rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as requested by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Philip F Miller
 
            Attorney at Law
 
            Saddlery Bldg  Ste 200
 
            309 Court Ave
 
            Des Moines IA 50309
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
            Mr Stephen W Spencer
 
            Mr Timothy W Wegman
 
            Attorneys at Law
 
            218 6th Ave  Ste 300
 
            P O Box 9130
 
            Des Moines IA 5030
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          5-2903; 5-2906; 5-1803.1;
 
                                          1108.20; 1108.50; 1401;
 
                                          1402.40; 2204; 1803; 2301;
 
                                          2302; 2902; 2906; 2501; 2504; 
 
            2700
 
                                          Filed March 31, 1992
 
                                          Walter R. McManus
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KATHY McBRIDE,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 947544
 
            MONFORT, 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 C/O    :
 
            GALLAGHER BASSETT, INC.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-2903; 5-2906
 
            
 
                 Claimant objected to defendants' proof of payment 
 
            supporting defendants' claim for credit under section 
 
            85.38(2).  The exhibit was excluded because it was not 
 
            timely served pursuant to paragraph 8 of the hearing 
 
            assignment order.  In fact, it had never been served and was 
 
            first produced at the hearing.  It was admitted as an offer 
 
            of proof as well as a portion of the testimony of the 
 
            personnel manager on the issue of non-occupational group 
 
            health plan credits.
 
            
 
                 Claimant was allowed to amend the petition to designate 
 
            an arbitration proceeding rather than a review-reopening 
 
            without objection from defendants.
 
            
 
                 Claimant objected to defendants' assertion of a claim 
 
            for section 85.38(2) credit.  This issue was not designated 
 
            as a hearing issue on the hearing assignment order nor was 
 
            it noted by the prehearing deputy at the prehearing 
 
            conference.  Claimant's motion was granted and this issue 
 
            was not addressed in the decision.  Deputies determine only 
 
            issues raised at the prehearing conference and designated as 
 
            hearing issues on the hearing assignment order.  Cites
 
            
 
                 It was not necessary to specify psychological injury as 
 
            a hearing issue on the hearing assignment order because it 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            was raised by the prehearing discovery and both parties were 
 
            prepared to present evidence on this matter.  Cite
 
            
 
                 Claimant withdrew the issue of whether claimant had 
 
            sustained an occupational disease which was shown as a 
 
            hearing issue on the hearing assignment order.
 
            
 
                 
 
            5-1803.1
 
            
 
                 Claimant's loss of her right hand and about four inches 
 
            of her right forearm in a meat grinder that resulted in 
 
            amputation of her right hand and a portion of her forearm 
 
            was determined to be an injury to a scheduled member, the 
 
            right arm, and not an injury to the body as a whole.
 
            
 
            1108.20; 1108.50; 1401; 1402.40; 2204
 
            
 
                 Claimant did not prove that she sustained a 
 
            psychological injury.  The weight of the evidence is that 
 
            she did not sustain a psychological injury.  The 
 
            psychological symptoms that she suffered were an integral 
 
            part of the sudden and unexpected, tragic and traumatic loss 
 
            of her limb.  Claimant was only seen once by psychologists 
 
            in the hospital but was never subsequently treated for a 
 
            psychological injury.  Treatment was offered several times 
 
            and claimant refused it.
 
            
 
                 Moreover, if claimant had sustained a psychological 
 
            injury which was sequelae of the arm amputation injury, 
 
            claimant would not be entitled to body as a whole permanent 
 
            partial disability benefits awarded industrially for the 
 
            reason that the industrial commissioner has determined that 
 
            psychological impairments caused by a scheduled member 
 
            injury are contemplated in the schedule itself and do not 
 
            constitute an extension of the injury into the body as a 
 
            whole.  Cites
 
            
 
            1803
 
            
 
                 The AMA Guides allow 90 percent of the arm for an 
 
            injury that amputates the fingers at the metacarpophalangeal 
 
            joint and 95% of the arm for an amputation just immediately 
 
            distal to the elbow.  The treating physician assessed a 90% 
 
            permanent impairment.  Claimant's evaluator assessed a 93% 
 
            permanent impairment.  Claimant's evaluator was more 
 
            accurate than the treating physician.  Claimant's evaluator 
 
            explained her rating; defendants' evaluator made no 
 
            explanation.  Since the amputation was several inches 
 
            proximal to the fingers, then 90% was obviously not correct 
 
            based on the AMA Guides, because it did not consider the 
 
            metacarpal bones or the distal four inches of claimant's 
 
            right forearm.  Claimant's evaluator properly prorated the 
 
            permanent between the two norms prescribed by the AMA 
 
            Guides.  Cites
 
            
 
                 Even though the industrial commissioner and deputies 
 
            may consider other factors other than impairment ratings to 
 
            determine scheduled member disability, it was determined in 
 
            this case that the impairment rating accurately and fairly 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            measured claimant's permanent partial disability.  Cites
 
            
 
            2301; 2302; 2902; 2906
 
            
 
                 It has previously been determined by the industrial 
 
            commissioner that the scheduled member provisions of section 
 
            85.34(2) have been found constitutional by the supreme court 
 
            and that the agency lacks the jurisdiction to determine the 
 
            constitutionality of the statute.  Cites
 
            
 
                 2501; 2504; 2700
 
            
 
                 The weight of the evidence supported the proposition 
 
            that claimant was entitled to future occupational therapy 
 
            designed to instruct claimant in how to more effectively and 
 
            proficiently use the myoelectric forearm and hand 
 
            prosthesis.  Although defendants opposed it at the hearing, 
 
            defendants conceded that claimant was entitled to 
 
            occupational therapy in their post hearing brief.  
 
            defendants were ordered to arrange quality occupational 
 
            therapy within 30 days of the decision at reasonable times 
 
            and places for claimant and to also pay medical mileage to 
 
            obtain it.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         TEDD A. NORMAN,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 947582
 
         DON AND TEDD'S TRUCK &        :
 
         AUTOMOTIVE SERVICE, INC.,     :           A P P E A L
 
                                       :
 
              Employer,                :         D E C I S I O N
 
                                       :
 
         and                           :
 
                                       :
 
         WEST BEND MUTUAL INSURANCE    :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              Whether the claimant sustained a personal injury arising out 
 
         of and in the course of his employment with the employer herein 
 
         on May 28, 1990;
 
         
 
              Whether or not there is a causal relationship between 
 
         medical care and treatment rendered after claimant's first 
 
         surgery, and the injury of May 28, 1990 resulting in medical 
 
         expenses pursuant to section 85.27, Iowa Code; and,
 
         
 
              The determination of the nature and extent of claimant's 
 
         disability resulting from the injury of May 28, 1990, if said 
 
         injury arose out of and in the course of employment.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The findings of fact appearing in the proposed arbitration 
 
         decision, pages 1 to 12, through paragraph ending "the May 28, 
 
         1990 injury" are accepted and adopted as final agency action.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed February 24, 1994 are adopted as set forth below.  
 
         It is intended that these conclusions shall stand in lieu of 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         those of the arbitration decision.
 
         
 
              The industrial commissioner accepts the causal relation 
 
         testimony of John Sinning, Jr., M.D., with regard to the second 
 
         and third surgeries.  Dr. Sinning's letter of February 4, 1992 is 
 
         accepted with regard to lack of causal relationship.  The 
 
         commissioner specifically finds in addition to Dr. Sinning's 
 
         letter, that his testimony given January 19, 1994 is supportive 
 
         of this conclusion as the physician testified at page 31 of his 
 
         deposition:
 
         
 
                 Q.  Okay.  Dr. Sinning, for our record have you had 
 
              an opportunity to look at Dr. Jones' letter to Carol 
 
              Nietzel [sic] of February 5, 1991, and a letter to the 
 
              attention of Carol Nietzel [sic] from April 20, 1991?
 
         
 
                 A.  Yes.
 
         
 
                 Q.  Okay.  Is it fair to say that you and Dr. Jones 
 
              disagree about the cause for his January 1991 surgery?
 
         
 
                 A.  Yes.
 
         
 
                 Q.  Okay.  Is there something, doctor, about the 
 
              work neurosurgeons as opposed to orthopedists do that 
 
              would give rise to your difference in opinion, or is 
 
              this a matter, doctor, upon which reasonably trained 
 
              and competent surgeons no matter their board 
 
              certification can and do disagree about?
 
         
 
                 ....
 
         
 
                 A.  Neither.
 
         
 
                 Q.  Okay.  As a layperson, doctor, why does Dr. 
 
              Jones causally relate his January surgery to the May 
 
              incident of 1990 and you don't?
 
            A.  Dr. Jones is proposing that a disk ruptures over time 
 
         because of an injury, and he proposes here that an injury in May 
 
         over a period of time caused a disk rupture that became apparent 
 
         in December, seven months later.  That's contrary to medical fact 
 
         and contrary to medical opinion.  Ruptured disks occur directly 
 
         as a result of a specific injury.  The disk degeneration that is 
 
         part of everyday living does go on over time and then a specific 
 
         incident, sometimes an injury at work, sometimes something as 
 
         simple as a sneeze, causes that disk to rupture.
 
         
 
         (Joint Exhibit C, page 31, line 15 through page 32, line 25)
 
         
 
              As a result of this decision, it is specifically held that 
 
         claimant's second and third surgeries, or all treatment rendered 
 
         after the first surgery, were not caused by the traumatic 
 
         incident of May 28, 1990.  However, it is held that claimant did 
 
         sustain a personal injury arising out of the course of his 
 
         employment on May 28, 1990 with Don and Tedd's Truck and 
 
         Automotive Service, Inc.; and further that he is entitled to 
 
         healing period benefits commencing May 28, 1990 through January 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         5, 1991; and further, that said injury resulted in industrial 
 
         disability of 30 percent or 150 weeks at the stipulated rate of 
 
         $195.77.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay unto claimant healing period benefits at 
 
         the rate of one hundred ninety-five and 77/l00 dollars ($195.77) 
 
         for the period beginning May 28, 1990 through January 5, 1991 
 
         totalling thirty-one point eight-five-seven (31.857) weeks.
 
         
 
              That defendants pay claimant one hundred fifty (150) weeks 
 
         of permanent partial disability benefits at the rate of one 
 
         hundred ninety-five and 77/l00 dollars ($195.77) beginning 
 
         January 5, 1991, the day following the end of the healing period.
 
         
 
              That defendants have paid all reasonable and necessary 
 
         medical expenses consistent with the conclusions of law reached 
 
         herein; and further, that the defendants are not responsible for 
 
         medical bills listed and previously ordered awarded in the 
 
         arbitration decision.
 
         
 
              That defendants shall pay the cost of this action pursuant 
 
         to rule 343 IAC 4.33.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall file an activity report upon payment 
 
         of this award as required by this agency pursuant to rule 343 IAC 
 
         3.1.
 
         
 
         
 
              Signed and filed this ____ day of May, 1994.
 
         
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         6959 University Avenue
 
         Des Moines, Iowa  50311
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         Mr. E. J. Giovannetti
 
         Ms. Anne L. Clark
 
         Attorneys at Law
 
         Terrace Center  STE 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1100; 5-1108; 5-1802
 
                                          5-1803; 5-2206; 5-2500
 
                                          Filed May 11, 1994
 
                                          BYRON K. ORTON
 
                      
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            TEDD A. NORMAN,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 947582
 
            DON AND TEDD'S TRUCK &        :
 
            AUTOMOTIVE SERVICE, INC.,     :           A P P E A L
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            WEST BEND MUTUAL INSURANCE    :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1100; 5-1108; 5-1802; 5-1803
 
            
 
                 Found 32-year-old claimant incurred an injury that 
 
            arose out of and in the course of his employment resulting 
 
            in a 60% industrial disability award and healing period.
 
            
 
            5-2206
 
            Found claimant's preexisting degenerative disease was 
 
            substantially and materially aggravated and lighted up by 
 
            claimant's work injury.
 
            
 
            5-2500
 
            Found defendants have paid all reasonable and necessary 
 
            medical expenses; further, defendants are not responsible 
 
            for medical bills listed and previously ordered awarded in 
 
            the arbitration decision.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            FRANK E. DAVIS,     
 
                      
 
                 Claimant,                   File No. 947688
 
                      
 
            vs.                             A L T E R N A T E
 
                      
 
            RUAN LEASING COMPANY,            M E D I C A L
 
                      
 
                 Employer,                     C A R E
 
                      
 
            and                             D E C I S I O N
 
                      
 
            CRAWFORD & COMPANY, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                              STATEMENT OF THE CASE
 
            Frank E. Davis filed a petition for alternate medical care 
 
            under Iowa Code section 85.27, invoking the summary 
 
            procedures of rule 343 IAC 4.48.  He sustained an injury on 
 
            April 12, 1990, arising out of and in the course of 
 
            employment with Ruan Leasing Company and is now dissatisfied 
 
            with medical treatment provided by that employer.
 
            Mr. Davis' petition for alternate medical care was filed on 
 
            September 2, 1992.  A telephone conference hearing was 
 
            thereafter held on September 15, 1992.  Claimant 
 
            participated personally and by counsel, Michael P. Brice.  
 
            Defendants were represented by Stephen W. Spencer.
 
            The evidentiary record consists of claimant's testimony.  No 
 
            documentary evidence was presented by either party.  The 
 
            hearing deputy recorded the entire hearing via audio tape.  
 
            Defendants were required through counsel to respond to the 
 
            allegations of claimant's petition.  Defendants admit that 
 
            claimant sustained injury arising out of and in the course 
 
            of employment on April 12, 1990, that the injury caused need 
 
            for medical treatment and that liability on the claim is not 
 
            generally disputed.  Defendants denied that the treatment 
 
            was reasonably suited to treat the injury without undue 
 
            inconvenience or that claimant has communicated his 
 
            dissatisfaction.
 

 
            
 
            Page   2
 
            
 
            
 
                                ISSUE
 
 
 
            The sole issue presented for resolution is: 
 
            1.  Whether defendants should be ordered to provide 
 
            alternate medical care under Iowa Code section 85.27.
 
            findings of fact
 
            Claimant sustained injury on April 12, 1990, and was 
 
            thereafter treated by Dr. Berg in Des Moines.  Dr. Berg 
 
            eventually released claimant to return to work without 
 
            restriction, and claimant accepted employment with another 
 
            trucking firm on September 21, 1991.  He remains so employed 
 
            in a job that requires him to lift weights in excess of 90 
 
            pounds.
 
            Except for occasional treatment by two chiropractors, which 
 
            claimant does not claim is related to the work injury, no 
 
            further medical treatment was requested until August 1992.  
 
            Upon representation by claimant's attorney that immediate 
 
            need was required, defendants made an appointment with Dr. 
 
            Berg's partner, Dr. Blessman.  Dr. Blessman prescribed one 
 
            week's therapy and released claimant to return to work.
 
            Mr. Davis' is dissatisfied with Dr. Blessman's care.  He 
 
            believes Dr. Blessman was ill-prepared to see him on the 
 
            first visit, that he treated him too roughly in evaluating 
 
            range of motion, and, no doubt most significantly, found 
 
            nothing wrong.  Mr. Davis now wishes authorization to see 
 
            Dr. Berg again.
 
 
 
                               CONCLUSIONS OF LAW
 
 
 
            In pertinent part, Iowa Code section 85.27 provides:
 
               For purposes of this section, the employer is obliged to 
 
            furnish reasonable services and supplies to treat an injured 
 
            employee, and has the right to choose the care.  The 
 
            treatment must be offered promptly and be reasonably suited 
 
            to treat the injury without undue inconvenience to the 
 
            employee.  If the employee has reason to be dissatisfied 
 
            with the care offered, the employee should communicate the 
 
            basis of such dissatisfaction to the employer, in writing if 
 
            requested, following which the employer and the employee may 
 
            agree to alternate care reasonably suited to treat the 
 
            injury.  If the employer and employee cannot agree on such 
 
            alternate care, the commissioner may, upon application and 
 
            reasonable proofs of the necessity therefor, allow and order 
 
            other care.  In an emergency, the employee may choose the 
 
            employee's care at the employer's expense, provided the 
 
            employer or the employer's agent cannot be reached 
 
            immediately.
 
            The statute was amended by House File 2250 in the 74th 
 
            General Assembly, affected July 1, 1992.  The amendment 
 
            required the industrial commissioner to provide a method to 
 
            expeditiously resolve disputes under this section.
 
            Claimant is dissatisfied with the care provided by Dr. 
 
            Blessman.  Under the statute, employer has the right to 
 
            choose medical treatment although it must be offered 
 
            promptly and be reasonably suited to treat the injury 
 
            without undue inconvenience.  The statute does not require 
 
            that claimant be satisfied with the treatment.  The 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            commissioner may order alternate care, but only "upon 
 
            application and reasonable proofs of the necessity 
 
            therefor."  The statute is couched in terms of necessity, 
 
            not desirability.
 
            It is claimant that seeks relief in this case.  He bears the 
 
            burden of proof to show that the medical treatment provided 
 
            by defendants is not reasonably suited to treat the injury 
 
            without undue inconvenience.  The party who would suffer 
 
            loss if an issue is not established has the burden of 
 
            proving that issue by a preponderance of the evidence.  Iowa 
 
            Rule of Civil Procedure 14(f).  Two physicians have released 
 
            claimant without restriction.  The treatment provided by Dr. 
 
            Blessman is on the order of one year after claimant was 
 
            released by Dr. Berg without restriction, and after he 
 
            returned to work in a physically demanding job with another 
 
            employer.  Claimant offers no expert opinion to show that 
 
            Dr. Blessman's treatment failed to meet the statutory 
 
            standard that it be reasonably suited to treat the injury.  
 
            Claimant is not qualified to pass on the wisdom of Dr. 
 
            Blessman's professional judgment.  
 
            Although claimant's petition alleges that the care is 
 
            unsuitable due to distance, he withdrew that allegation at 
 
            hearing.
 
            As claimant has failed to establish his right to alternate 
 
            treatment, the issue must be resolved in favor of 
 
            defendants.
 
                                    ORDER
 
 
 
            THEREFORE IT IS ORDERED:
 
            Claimant's petition for alternate medical care is denied.
 
            Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 
                                   ________________________________
 
                                   DAVID R. RASEY
 
                                   DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Michael P Brice
 
            Attorney at Law
 
            PO Box 1143
 
            Oskaloosa Iowa 52577
 
            
 
            Mr Stephen W Spencer
 
            Attorney at Law
 
            218 Sixth Avenue Ste 300
 
            PO Box 9130
 
            Des Moines Iowa 50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           1402.60; 2700
 
                                           Filed September 26, 1992
 
                                           DAVID R. RASEY
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            FRANK E. DAVIS,     
 
                      
 
                 Claimant,                     File No. 947688
 
                      
 
            vs.                              A L T E R N A T E
 
                      
 
            RUAN LEASING COMPANY,              M E D I C A L
 
                      
 
                 Employer,                      C A R E
 
                      
 
            and                              D E C I S I O N
 
                      
 
            CRAWFORD & COMPANY, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1402.60; 2700
 
            Claimant failed to meet burden of proof in showing medical 
 
            care not reasonably suited to treat the injury without undue 
 
            inconvenience.
 
            About one year after he had been released without 
 
            restriction, claimant requested immediate treatment and was 
 
            sent to partner of the original physician.  After one week 
 
            of therapy, he was again released without restriction.  
 
            Dissatisfaction with treatment is not the statutory 
 
            standard.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JODIE L. COAN, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                             File No. 947809
 
            JOHN MORRELL & COMPANY,  
 
                                         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 upon the petition in arbitration 
 
            filed by claimant, Jodie Coan against her employer, John 
 
            Morrell & Company, and its insurance carrier, Home Insurance 
 
            Company.  The parties agree that claimant sustained injury 
 
            arising out of and in the course of that employment on 
 
            November 2, 1989, but disagree as to the nature and extent 
 
            of permanent disability, if any.
 
            
 
                 A hearing was accordingly held in Sioux City, Iowa on 
 
            May 19, 1993.  Claimant, Dr. Horst Blume and Jay Everett 
 
            testified personally.  The record also contains joint 
 
            exhibits 1 through 53, defendants' exhibits A through D and 
 
            claimant's exhibits 1, 2, and 4.  
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated that claimant sustained 
 
            injury arising out of and in the course of employment on 
 
            November 2, 1989, and that the injury caused temporary 
 
            disability, the extent of which is no longer in dispute.  
 
            The parties also agreed to the appropriate rate of 
 
            compensation ($207.44 per week) and agree that defendants 
 
            are entitled to credit for benefits voluntarily paid prior 
 
            to hearing.  
 
            
 
                 Issues presented for resolution include:
 
            
 
                 (1)  Whether the injury caused permanent disability;
 
            
 
                 (2)  The nature and extent of permanent disability, if 
 
            any; and,
 
            
 
                 (3)  Entitlement to medical benefits under Iowa Code 
 
            section 85.27.
 
            
 
                 The disputed medical expenses are for charges of Dr. 
 
            Blume.  These include both an examination (including various 
 
            tests) and a charge to review the file, presumably for 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            preparation of the doctor's report.  Defendants dispute 
 
            whether those fees are fair and reasonable, whether the 
 
            treatment was reasonable and necessary, and whether the 
 
            treatment is causally connected not only to the work injury, 
 
            but even to the condition upon which this claim is based, 
 
            and whether those expenses were authorized.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Jodie Coan, 27 years of age at hearing, took employment 
 
            with John Morrell & Company in July, 1989.  John Morrell is 
 
            engaged in the meat packing industry.  Claimant took a job 
 
            on the kill floor, but was working on the derind line when 
 
            she developed the symptoms that constitute injury in this 
 
            case.  Her job involved sliding pork bellies onto a scale, 
 
            then lifting and placing the bellies in a container.  Most 
 
            bellies weigh 10 to 13 pounds, although a rare specimen may 
 
            reach 18.5 pounds.
 
            
 
                 On November 2, 1989, claimant visited the plant nurse 
 
            with complaints of hand, thumb, first and second digit pain.  
 
            She was referred to D. M. Youngblade, M.D., and eventually 
 
            seen on November 20.  Dr. Youngblade returned her to light 
 
            duty work, charting painful and sensitive digits on the left 
 
            hand.  Claimant was to reduce left wrist activity and was 
 
            given a splint.  On January 15, 1990, claimant was better, 
 
            but complained that grasping with the left hand caused pain.  
 
            The light work she had been given was that of splitting 
 
            heads, which Dr. Youngblade thought seemed beneficial.  By 
 
            February 6, claimant's left thumb was noted as better and 
 
            diagnosis was of tendonitis of the left thumb.  However, 
 
            claimant was to stay out of cold, moist areas because she 
 
            had developed symptoms that have since been diagnosed as 
 
            Raynaud's phenomenon, a vascular disease afflicting the 
 
            extremities.  
 
            
 
                 By March 1, claimant also had developed symptoms in the 
 
            right hand.  
 
            
 
                 Dr. Youngblade saw claimant a total of five times 
 
            between November 20, 1989 and March 28, 1990.  In addition 
 
            to cold hands, claimant complained of wrist and thumb pain, 
 
            especially on the left side.  Dr. Youngblade charts no 
 
            complaints of numbness, nor of problems affecting any other 
 
            part of the body, such as the neck or shoulders.  
 
            
 
                 Claimant was next referred to Alan Pechacek, M.D..  Dr. 
 
            Pechacek saw claimant on numerous occasions between April 
 
            17, 1990 and May 9, 1991.
 
            
 
                 On the first visit, Ms. Coan made complaint of 
 
            persistent pain over the radial aspect of the wrists, 
 
            extending into the thumb.  Left was worse than right.  Dr. 
 
            Pechacek's initial impression was of (1) DeQuervain's 
 
            tendonitis involving the extensor tendons to both thumbs; 
 
            and (2) bilateral Raynaud's phenomenon.  
 
            
 
                 After numerous medications failed to bring relief, Dr. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Pechacek performed a tendon sheath release in November 1990.  
 
            Unfortunately, the procedure failed to relieve symptoms.  
 
            Due to the lack of success, a similar procedure was not 
 
            performed on the right side.
 
            
 
                 On May 9, 1991, claimant underwent a functional 
 
            capacity evaluation.  The occupational therapist, Melissa 
 
            Pierce, suggested certain limitations, but noted that 
 
            claimant's efforts "were not consistent and indicate full 
 
            effort was not given."  Dr. Pechacek charted that there was 
 
            not much more he could offer the patient and imposed 
 
            restrictions of light duty work, not in a cold environment.  
 
            Claimant was to avoid prolonged or heavy gripping, prolonged 
 
            heavy grasping, prolonged heavy pushing and pulling with a 
 
            limit of less than 25 pounds occasionally.  She should 
 
            reduce or avoid repetitive hand and wrist motion and should 
 
            not use a knife, hook or electric knife.  Lifting 
 
            restrictions were 25 pounds from floor to waist, 15 pounds 
 
            from waist to shoulder and 10 pounds above shoulder level.  
 
            Claimant was released PRN.
 
            
 
                 Dr. Pechacek's extensive chart notes reflect absolutely 
 
            no complaints of numbness or any problems other than in the 
 
            hands.  On May 17, 1991, Dr. Pechacek rated claimant as 
 
            having a zero impairment rating pursuant to the AMA Guides 
 
            to the Evaluation of Permanent Impairment, noting that the 
 
            Guide is based on range of motion measurements, not pain or 
 
            loss of other function.  Claimant had full range of motion 
 
            of the wrist, thumb and fingers.  
 
            
 
                 Claimant was seen by Dr. Kuhnlein in October 1990.  His 
 
            diagnosis was of bilateral DeQuervain's syndrome.  His 
 
            records do not reflect complaints other than in the hands.  
 
            
 
                 On August 26, 1991, claimant was seen for evaluation by 
 
            Michael T. O'Neil, M.D..  Claimant conceded that Dr. O'Neil 
 
            was her selected physician for an independent medical 
 
            examination under Iowa Code section 85.39.  Dr. O'Neil 
 
            concurred with Dr. Pechacek that claimant suffered chronic 
 
            tenosynovitis of the wrist including the first extensor 
 
            compartment (DeQuervain's syndrome) and cold induced 
 
            Raynaud's phenomenon.  He recommended that claimant avoid 
 
            work requiring cold or damp climates and should avoid 
 
            repetitive flexion, extension and grasping and releasing of 
 
            both hands.  Although noting that claimant had normal range 
 
            of motion of both wrists and fingers, Dr. O'Neil assigned a 
 
            5 percent permanent impairment rating related to both 
 
            conditions.  Dr. O'Neil does not specifically discuss 
 
            whether any causal nexus exists between the work and 
 
            claimant's Raynaud's phenomenon.  There is no indication of 
 
            symptoms located other than in the hands and wrists.
 
            
 
                 Records of the Grandview Medical Clinic show that 
 
            claimant was seen on June 12, and September 26, 1991.  On 
 
            the first occasion, claimant had chest pain, light 
 
            headedness and tachycardia, along with pain in the right 
 
            scapular region.  In September, she reported pain from the 
 
            left front radiating to the left shoulder blade.
 
            
 
                 Claimant last worked for John Morrell in March 1990.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            June and September 1991 mark the first complaints of 
 
            shoulder pain appearing in any medical records.  Well over a 
 
            year separates the events.  
 
            
 
                 Beginning December 17, 1991, claimant began a course of 
 
            treatment with David Paulsrud, M.D..  Dr. Paulsrud's chart 
 
            notes reflect complaints of numbness and tingling in the 
 
            hands which he diagnosed as cervical outlet syndrome.  Dr. 
 
            Pechacek does not directly discuss causation, except that he 
 
            notes claimant's past medical history is significant with 
 
            respect to synovitis in the hands "and has a permanent 
 
            impairment disability from work comp." Thus, his only 
 
            statement tending to support causal nexus between claimant's 
 
            work and her medical problems is limited to the hands.  
 
            
 
                 On January 28, 1993, Dr. Paulsrud rated claimant's 
 
            impairment at zero.  Although his diagnosis continued to be 
 
            of cervical outlet syndrome, he charted that claimant 
 
            demonstrated full range of motion of the upper extremities.  
 
            For at least the second time, he notes drooping of the 
 
            shoulders. 
 
            
 
                 Claimant was seen for evaluation by Horst G. Blume, 
 
            M.D., on March 15, 1993.  By this time, Ms. Coan complained 
 
            of pain coming from the neck into the left shoulder girdle, 
 
            down the left arm into the left hand with intermittent 
 
            tingling in the second and third fingers of the left hand 
 
            and of a cold feeling in the left fingers.  Dr. Blume 
 
            diagnosed a nerve root irritation in the C6 distribution 
 
            with sensory and pain condition and cervicogenic headaches 
 
            as well as Raynaud's phenomenon.  He also found evidence of 
 
            reflex sympathetic dystrophy, status post previous hand 
 
            surgery on the left, irritation of the left 
 
            acromioclavicular joint and thoracic outlet syndrome, and 
 
            anterior scalenus syndrome on the left (however, in his 
 
            report of March 18, Dr. Blume specified that he found no 
 
            evidence of thoracic outlet syndrome).
 
            
 
                 Assigning a permanent impairment rating to the body as 
 
            a whole of 10 to 15 percent, Dr. Blume concluded that 
 
            repetitive work activity as well as the "particular 
 
            accident" on November 2, 1989 were responsible for 
 
            claimant's condition.  Actually, there was no particular 
 
            accident on November 2, 1989; that was the date claimant 
 
            first sought medical attention at the plant medical 
 
            department.
 
            
 
                 However, as to claimant's chronic tenosynovitis 
 
            problem, Dr. Blume found no symptomatology whatsoever.  
 
            
 
                 Claimant was also seen for evaluation by Joel T. 
 
            Cotton, M.D..  She was seen on April 16, 1993.  Dr. Cotton, 
 
            a board certified neurologist, agreed with the diagnoses of 
 
            DeQuervain's tenosynovitis.  As did Dr. Pechacek, he found 
 
            no loss of range of motion in either hand or wrist and 
 
            assigned no permanent impairment to that problem.
 
            
 
                 Dr. Cotton found no evidence indicative of cervical 
 
            outlet syndrome, irritation of the brachial plexus, 
 
            irritation of the sixth cervical nerve root or of anterior 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            scalene syndrome.  In addition to finding no evidence of 
 
            these conditions, Dr. Cotton opined that any past 
 
            consideration of such irritation was not causally related to 
 
            claimant's employment at John Morrell.  In this connection, 
 
            he pointed out the huge time gap between claimant's last 
 
            work and the development of symptoms requiring treatment in 
 
            December 1991.  Dr. Cotton also found no evidence to suggest 
 
            a condition of reflex sympathetic dystrophy.  The hands were 
 
            easily manipulated without complaint, claimant showed no 
 
            atrophy of the skin or nails, and had no abnormal 
 
            perspiration pattern.  Dr. Cotton was unimpressed by Dr. 
 
            Blume's use of thermography, pointing out that the procedure 
 
            is not accepted by the American Academy of Neurology and 
 
            that pursuant to Medicare policy, Iowa Medicaid has declared 
 
            thermograms not compensable.  Dr. Blume had found, based 
 
            largely upon thermogram testing, that claimant suffered a 
 
            mild case of reflex sympathetic dystrophy.  Dr. Cotton also 
 
            pointed out that some three years had elapsed between 
 
            claimant's last work for John Morrell and her examination by 
 
            Dr. Blume, the first physician to suggest the presence of 
 
            reflex sympathetic dystrophy.  
 
            
 
                 Dr. Cotton also pointed out that Raynaud's phenomenon 
 
            is a disorder of unknown cause, and that females are most 
 
            commonly afflicted.  Exposure to cold or emotional stimuli 
 
            may trigger the response, but cold does not itself cause the 
 
            condition.
 
            
 
                 It is worth noting that claimant had been previously 
 
            employed by another meat packer, IBP.  Nurse's notes from 
 
            that plant dated January 1988 show complaints of redness in 
 
            the palm of the right hand; a physician (name illegible) 
 
            concluded that claimant had sustained no injury, but that 
 
            this was a normal reaction to cold.  Claimant, in her 
 
            application for employment with Morrell, requested that she 
 
            not be assigned to a cold environment.  It seems clear that 
 
            symptoms of Raynaud's phenomenon preceded her employment 
 
            with Morrell.  
 
            
 
                                conclusions of law
 
            
 
                 The parties agree that claimant sustained injury 
 
            arising out of and in the course of employment.  The 
 
            fighting issue is whether the injury caused permanent 
 
            disability, and if so, the extent; specifically, whether the 
 
            injury extends into the body as a whole because of the 
 
            late-developing symptoms described by Dr. Blume.  
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Claimant has been seen by a number of physicians.  Only 
 
            two, Dr. Paulsrud and Dr. Blume, find evidence of symptoms 
 
            beyond the hands.  Dr. Blume's opinion -- that all the 
 
            physical problems he diagnosed were caused by repetitive 
 
            work at Morrell -- stands alone.  
 
            
 
                 First, it is not at all certain that claimant has the 
 
            wide range of conditions outlined by Dr. Blume.  Dr. Cotton, 
 
            a highly qualified neurologist, specifically believes not.  
 
            Dr. Blume, while also board certified in his specialty, is 
 
            currently practicing medicine on a probationary status.  He 
 
            is barred from performing certain craniotomies at a local 
 
            hospital except in association with a second physician.  He 
 
            is the only local physician who relies on thermograms, a 
 
            procedure not shown to be accepted by the medical 
 
            establishment and not compensable by Medicaid or Medicare.
 
            
 
                 It is also noted that Dr. Blume's opinions have 
 
            frequently been offered in evidence before this agency.  In 
 
            agency experience, those opinions rather consistently tend 
 
            to favor claimants.  Under Iowa Code section 17A.14(5), it 
 
            is appropriate to consider agency experience in evaluating 
 
            Dr. Blume's opinion.  Davis v. Rose Haven Nursing Home 
 
            (Appeal Decn. July 26, 1993).
 
            
 
                 But, the main problem in accepting Dr. Blume's opinion 
 
            on causation is the extensive time gap between claimant's 
 
            last work for John Morrell and the development of numbness 
 
            and symptoms beyond the wrists and thumbs.  Dr. Blume does 
 
            not hypothesize a mechanism for explaining the greatly 
 
            belated development of symptoms.  Although Ms. Coan's brief 
 
            claims that "Dr. Blume testified many times a final 
 
            diagnosis of cervical outlet syndrome scalene syndrome 
 
            and/or C6 nerve irritation does not manifest itself until 
 
            some years after the event(,)" a careful review of the 
 
            transcript fails to find support for her allegation.  On 
 
            only two occasions does Dr. Blume even come close to 
 
            expressing such an opinion.  At page 6 of his transcribed 
 
            testimony, Dr. Blume found claimant's history consistent 
 
            with reported symptomatology, "even though in the beginning 
 
            patient had some kind of tendonitis for which the patient 
 
            was treated appropriately by orthopedic doctors."  And, at 
 
            page 16, Dr. Blume testified that the cervical outlet 
 
            syndrome he diagnosed in claimant developed gradually.  
 
            
 
                 This is a tenuous tie to the original work injury.  
 
            Claimant was actually taken off the derind line in November 
 
            1989 and had improved somewhat by March 1990.  Symptoms 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            consistent with cervical outlet syndrome, including numbness 
 
            in the extremity, were not complained of until December 
 
            1991.  Even Dr. Blume agrees that other conditions can cause 
 
            or aggravate such an impingement syndrome, including lifting 
 
            heavy weights and poor posture.  Claimant agrees that she 
 
            carried her children and grocery bags during the intervening 
 
            time, and the records of Dr. Paulsrud make note of 
 
            claimant's stooped posture.  This writer observed that 
 
            claimant exhibited a noticeably slumped or stooped posture 
 
            during the course of hearing.  
 
            
 
                 Dr. Blume in part buttresses his opinion with the 
 
            repeated assertion that Dr. Youngblade charted numbness 
 
            early on.  In fact, a review of Dr. Yongblade's records does 
 
            not confirm Dr. Blume's understanding.  On November 20, 
 
            1989, Dr. Youngblade charted "sort of a peculiar sensation" 
 
            involving the thumb, first and second fingers.  This is the 
 
            only reference in Dr. Youngblade's records that even 
 
            suggests complaints of numbness.  During Dr. Pechacek's 
 
            lengthy treatment, his only mention of such symptoms is when 
 
            he points out that claimant did not complain of numbness.  
 
            
 
                 While Dr. Paulsrud also diagnosed a cervical outlet 
 
            syndrome, he apparently did not find it significant, since 
 
            he found that claimant had zero impairment.  Dr. Cotton 
 
            opined that claimant had no such symptoms, and that any past 
 
            consideration of such a syndrome was not caused or related 
 
            to claimant's employment.
 
            
 
                 It must be concluded, then, that claimant has failed to 
 
            prove that the various conditions described by Dr. Blume 
 
            bear a causal nexus to the original work injury.
 
            
 
                 This leaves for consideration the original diagnoses of 
 
            Dequervain's tenosynovitis and Raynaud's phenomena.  
 
            
 
                 The evidence does not show that work at John Morrell 
 
            caused (or aggravated or lit up) development of Raynaud's 
 
            phenomenon.  Dr. Cotton's testimony is consistent with 
 
            agency experience:  Raynaud's is an idiopathic condition of 
 
            unknown etiology which becomes symptomatic, especially in 
 
            females, in the presence of cold or emotional stress.  
 
            Claimant apparently had early signs of Raynaud's phenomenon 
 
            in her previous employment with another packinghouse, IBP.  
 
            Dr. Pechacek specified that the two conditions were 
 
            independent problems.  Cold conditions at John Morrell 
 
            merely provided a stage for the preexisting condition to 
 
            manifest itself.  
 
            
 
                 Come at last we must to the thorniest issue:  what, if 
 
            any, disability was caused by claimant's bilateral 
 
            development of DeQuervain's tenosynovitis.  There are at 
 
            least three reasonable solutions.
 
            
 
                 First, it can be concluded that claimant sustained 
 
            permanent impairment to the wrists as shown by the fact that 
 
            Dr. Pechacek, the treating surgeon, imposed substantial 
 
            restrictions on activities.  While Dr. Pechacek gave 
 
            claimant a zero impairment rating, he specifically did so on 
 
            the basis of the American Medical Association Guides to The 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Evaluation of Permanent Impairment.  As the doctor himself 
 
            points out, the Guides deal almost exclusively with 
 
            measuring range of motion, not other indicia of impairment.  
 
            The imposition of medical restriction by itself is 
 
            indicative of impairment.  Even though Dr. Blume and Dr. 
 
            Cotton found zero impairment, Dr. Cotton described 
 
            continuing tenderness and complaints of pain over both 
 
            wrists and increasing hand and forearm pain with lifting in 
 
            excess of ten pounds.  Pointing out that he found no loss of 
 
            range of motion in either hand or wrist, Dr. Cotton opined 
 
            that claimant had no permanent impairment relating to her 
 
            history of DeQuervain's tenosynovitis,  further stating that 
 
            claimant had reached maximum medical improvement as of May 
 
            17, 1991 (the date of Dr. Pechacek's letter setting forth 
 
            impairment ratings and restrictions).  He did not suggest 
 
            lifting the medical restrictions imposed by Dr. Pechacek.  
 
            
 
                 Alternatively, it could well be concluded that claimant 
 
            continued to improve beyond May, 1991, until she was 
 
            essentially nonsymptomatic when seen by Dr. Blume on March 
 
            15, 1993.  Under this theory, claimant has no permanent 
 
            disability now, but her healing period should extend until 
 
            that date, when "it is medically indicated that significant 
 
            improvement from the injury is not anticipated."  See Iowa 
 
            Code section 85.34(1).  This theory postulates that Dr. 
 
            Pechacek has been proved incorrect in concluding that 
 
            claimant reached maximum benefit in 1991.  
 
            
 
                 Thirdly, it could reasonably be determined that 
 
            claimant had sustained no permanent impairment whatsoever as 
 
            of May 17, 1991.  Although Dr. Pechacek imposed medical 
 
            restrictions, he did so in large part on the basis of 
 
            claimant's functional capacity evaluation on May 10, 1991.  
 
            The occupational therapist, Melissa Pierce, noted as part of 
 
            that report:
 
            
 
                    Observed effort:  Lifting performance on the 
 
                 BTE Work Simulator and dynamically using Valpar 19 
 
                 were not consistent and indicate full effort was 
 
                 not given.  Use of sensory muscles were not noted 
 
                 throughout other testing procedures suggesting 
 
                 full effort was not given consistently throughout 
 
                 the evaluation.
 
            
 
                 This observation is also consistent with claimant's 
 
            demonstrated poor motivation to return to work.  She did not 
 
            undergo work hardening (being "too busy") as recommended by 
 
            Dr. Pechacek.  She did not cooperate with the Nebraska 
 
            Division of Vocational Rehabilitation in seeking work.  It 
 
            appears that claimant has removed herself voluntarily from 
 
            the workforce.  
 
            
 
                 All things considered, the first alternative seems most 
 
            reasonable.  Notwithstanding claimant's questionable 
 
            motivation, the undersigned believes that she had and 
 
            continues to have functional limitations with respect to her 
 
            hands, even though it is difficult to measure that 
 
            disability because she limited her effort in the only 
 
            functional capacity evaluation given.  Still, claimant 
 
            voluntarily underwent surgery.  Generally speaking, people 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            do not do so unless they hurt.  Her complaints have 
 
            continued since then.  Unfortunately, it is difficult to 
 
            quantify impairment given a scarcity of medical opinion 
 
            based on anything other than the AMA Guides.  As noted, the 
 
            Guides are largely concerned with measuring loss of range 
 
            of motion.  Functional loss can be manifested in other ways.  
 
            Dr. O'Neil, it will be recalled, estimated impairment at 5 
 
            percent, but did so in part due to Raynaud's phenomenon.
 
            
 
                 Both wrists are affected.  An injury to the wrist is 
 
            considered an injury to the hand, not the arm.  The hand 
 
            extends to the distal end of the radius and ulna, including 
 
            the carpus or wrist.  Elam v. Midland Manufacturing, II IICR 
 
            141 (Appeal Decn. 1981).  Under Iowa Code section 
 
            85.34(2)(l) and (s) the loss of a hand is compensated during 
 
            190 weeks, but the loss of both hands caused by a single 
 
            "accident" shall equal 500 weeks and be compensated as such.  
 
            Since both extremities are involved, claimant must be 
 
            compensated under section 85.34(2)(s).  As Dr. Pechacek 
 
            points out in his letter of May 17, 1991, "(t)o a large 
 
            extent and unfortunately, these limitations and restrictions 
 
            cannot be converted to a percentage form."  However, having 
 
            found that permanent impairment exists, the agency must do 
 
            so.  On the basis of all the evidence, claimant has 
 
            sustained a permanent impairment to both hands equivalent to 
 
            10 percent of 500 weeks, or 50 weeks.  Pursuant to the 
 
            parties' stipulation, the commencement date for those 
 
            benefits is May 10, 1991. 
 
            
 
                 Claimant also seeks to be reimbursed for Dr. Blume's 
 
            charges.  Actually, Dr. Blume was seen for evaluation, not 
 
            treatment.  His charges, if compensable at all, fall under 
 
            Iowa Code section 85.39, not 85.27.  In pertinent part, Iowa 
 
            Code section 85.39 provides:  
 
            
 
                    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.
 
            
 
                 It is immediately evident that section 85.39 speaks to 
 
            a subsequent examination by a physician.  Claimant is 
 
            entitled to a single such evaluation, not multiple 
 
            evaluations.  As she concedes, claimant received an 85.39 
 
            examination from Dr. O'Neil prior to engaging her present 
 
            attorney.  She is not entitled to a second 85.39 evaluation.  
 
            Defendants prevail on this issue.
 
            
 
                                     DECISION
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay claimant fifty (50) weeks of 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            permanent partial disability benefits at the stipulated rate 
 
            of two hundred seven and 44/100 dollars ($207.44) commencing 
 
            May 10, 1991.
 
            
 
                 Defendants shall have credit for all benefits 
 
            voluntarily paid prior to hearing.
 
            
 
                 All accrued benefits shall be paid in a lump sum 
 
            together with statutory interest.  
 
            
 
                 Each party shall be responsible for its costs.
 
            
 
                 Signed and filed this ____ day of September, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Richard D. Crotty
 
            Attorney at Law
 
            311 Metropolitan Federal Bk. Bldg.
 
            Council Bluffs, IA  51503
 
            
 
            Ms. Rita C. Grimm
 
            Attorney at Law
 
            200 Pioneer Bank Bldg.
 
            P.O. Box 3086
 
            Sioux City, IA  51102
 
 
 
 
            
 
         
 
            
 
            
 
            
 
                                           1803, 1808
 
                                           Filed September 15, 1993
 
                                           David R. Rasey
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            JODIE L. COAN, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 947809
 
            JOHN MORRELL & COMPANY,  
 
                                          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, 1808
 
                 
 
                 Treating surgeon imposed substantial medical 
 
            restrictions following wrist/thumb surgery, but assigned a 
 
            zero impairment rating under AMA Guides, since claimant had 
 
            full range of motion.  Bilateral cumulative wrist injury was 
 
            compensated as 10 percent of 500 weeks under 85.34(2)(s).
 
            
 
 
         
 
           
 
              
 
         
 
               
 
         
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         DENNIS ROMEO,                 :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 947894
 
         WOODMARC,                     :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         UNITED STATES FIDELITY &      :
 
         GUARANTY CO.,                 :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Dennis Romeo, against his employer, Woodmarc, and its 
 
         insurance carrier, United States Fidelity and Guaranty Company, 
 
         defendants.  The case was heard on May 6, 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 claimant's exhibits 1 and 2, as well as defendants' exhibits 
 
         a, b, c and d.
 
         
 
                                      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; and 3) whether 
 
         claimant is entitled to a reimbursement for costs.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is 46-years-old.  He is a 1964 graduate of Lincoln 
 
         High School in Des Moines, Iowa.  He is bright and quite 
 
         articulate.  Claimant is a veteran of the United States Marine 
 
         Corps where he was engaged in field artillery.  After his release 
 
         from the military, claimant attended the Madison Area Technical 
 
         College for one year.  He studied accounting.
 
         
 
              Subsequent to his year in college, claimant held a variety 
 
         of positions.  He worked at Fawn Engineering as an assembler.  He 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         operated heavy equipment.  He worked as a crew leader for Bullock 
 
         Garage Company where he was required to construct garages.  
 
         Claimant was plant manager for a cellulose manufacturer.  His 
 
         duties included quality control, managerial responsibilities, and 
 
         maintenance.  He also worked as a supervisor in inventory control 
 
         while he was living in Colorado.
 
         
 
              Claimant moved to Montana where he established his own 
 
         construction company, D and D Construction.  While operating his 
 
         own company, claimant bid on projects, built homes, remodeled 
 
         homes, built garages, supervised his crew, and conducted other 
 
         duties which were germane to running a construction business.  
 
         Claimant operated his own business until late summer of 1989.
 
         
 
              In August of 1989, claimant returned to the Des Moines area.  
 
         He worked at Cimino Recycling Plant as the plant manager.  There 
 
         he engaged in all types of supervisory duties.  In January of 
 
         1990, claimant was terminated because of an illness.
 
         
 
              Next, claimant was hired by defendant-employer.  He was 
 
         hired as supervisor of the maintenance department.  His duties 
 
         included, keeping the factory running smoothly, maintaining 
 
         oilers, saws, and motors, as well as changing the decor in the 
 
         furniture store which was operated by defendant-employer.  
 
         Claimant earned $22,000.00 per year.  
 
         
 
              The parties stipulated that claimant sustained a 
 
         work-related injury on April 30, 1990.  At the time of the work 
 
         injury, claimant was assisting with the design of a new saw.  He 
 
         and another employee were designing a prototype chop saw.  The 
 
         saw consisted, in part, of a one half inch steel plate table 
 
         which weighed 250 to 300 pounds.  Claimant was attempting to 
 
         screw into the table several 2 inch threaded legs.  He was 
 
         working alone and trying to set the table upright when the table 
 
         slipped, and claimant grabbed it.  At that time he felt severe 
 
         pains in his back.  Moments later, several employees came to 
 
         assist claimant who was wincing in pain.
 
         
 
              The work injury occurred at approximately 8:30 a.m. Claimant 
 
         attempted to work on that date but he was unable to complete his 
 
         shift.  An agent for the employer authorized claimant to be seen 
 
         by the company doctor, J. Giddings, D.O.  The physician treated 
 
         claimant conservatively and then referred him to Kirk Green, 
 
         D.O., of Iowa Orthopedic Center, P.C.  Dr. Green prescribed 
 
         physical therapy for claimant.
 
         
 
              Claimant did not participate fully in his physical therapy 
 
         program.  As a consequence, the therapy was suspended.
 
         
 
              Because claimant expressed continued pain in his low back 
 
         area, he was referred to Daniel J. McGuire, M.D., an orthopedic 
 
         surgeon.  Dr. McGuire examined claimant on July 22, 1990.  The 
 
         physician authored a report in which the physician opined that:
 
         
 
              His x-rays are remarkable in that it looks like he may 
 
              have a pars defect at L5.  It is not really easily seen 
 
              on the axial views of his CT scan and the sagittal 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              views are questionable.  This could explain some of his 
 
              back pain and also his left leg pain.  It is hard to 
 
              tell the age of this and this may require a bone scan 
 
              with SPECT.  I really see no evidence of a major disc 
 
              bulge or anything else major going on.  We also see the 
 
              calcifications of the vessels on his film. 
 
         
 
              PHYSICAL EXAM:  He has decreased sensation of his left 
 
              L5.  He has weakness of his extensor halluces longus on 
 
              his left side.  He has really questionable straight leg 
 
              raise or foot test.  He has some discomfort in his calf 
 
              muscles at about 50 degrees with SLR and about zero 
 
              degrees with a slip test.  Perhaps this is just some 
 
              tightness of his muscles.  He has normal flexibility of 
 
              his lumbosacral spine.  This is all on his left leg.
 
         
 
              I had a talk with his Intracorp nurse.  I had a talk 
 
              with the patient.  The patient is upset with the 
 
              employer who calls him and tells him that he is faking 
 
              everything and he should come back to work.  I don't 
 
              think that is a true statement, that he is faking it.  
 
              I think the pain is legitimate, it is just that we 
 
              don't have a simple answer for his pain.  I told him 
 
              that I do not think surgery is the first option, 
 
              especially in light of his occupation.  I told him he 
 
              needs to stop smoking.  I think he needs to become 
 
              involved with physical therapy and a work-hardening 
 
              program.  We will have to make an evaluation to see how 
 
              he does....
 
         
 
         (Claimant's Exhibit 1, pages 17 & 18)
 
         
 
              Dr. McGuire continued to treat claimant in a conservative 
 
         fashion.  The physician again ordered psychical therapy.  He also 
 
         ordered a CT scan and a MRI.  The diagnostic tests revealed that:
 
         
 
              CT of the lumbar spine:
 
         
 
                  ...
 
         
 
              The examination shows that the L3-L4 interspace is 
 
              normal.  At the L4-L5 level, there is a protruding disc 
 
              pushing and narrowing the canal.  The lateral recesses 
 
              are narrowed and the fat is partially replaced.  
 
              Relative stenosis of the canal at this level is 
 
              observed.  The L5-S1 interspace appears normal.  The 
 
              abdominal aorta shows some calcifications at the distal 
 
              end.  Calcifications are also seen in the iliac 
 
              vessels.
 
         
 
              IMPRESSION:  Protruding disc and relative spinal 
 
              stenosis at the level of L4-L5 interspace.
 
         
 
                  ...
 
         
 
              MRI Lumbar Spine:
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                  ...
 
         
 
              L4-5:  Loss of disc hydration and disc space.  
 
              Disruption of the annulus, with small central HNP.  
 
              This lies beneath an intact posterior longitudinal 
 
              ligament.  There is slight indentation of the thecal 
 
              sac, without significant narrowing of the spinal canal.  
 
              Even with mild facet degeneration, L5 lateral recesses 
 
              are only mildly narrowed and fat has not been 
 
              obliterated.  I do not identify definite nerve root 
 
              compression.  L4 neural foramina are widely patent.  
 
         
 
         (Cl. Ex. 2, pp. 1 & 2)
 
         
 
              Claimant did not cooperate fully with the physical therapy 
 
         which was prescribed by Dr. McGuire.  The notes of Martin Ungs, 
 
         LPT, establish less than maximum effort on the part of claimant.  
 
         The notes also indicate that claimant missed appointments on 
 
         several occasions. 
 
         
 
              Mr. Ungs administered a functional capacities evaluation for 
 
         claimant.  The results of the test are found in claimant's 
 
         exhibit 1, pages 7-12.  Mr. Ungs summarized his opinion in the 
 
         "comments and recommendations."  He opined:
 
         
 
                 Based on Mr. Romeo's functional capacity assessment, 
 
              Mr. Romeo falls within the Light Work category to ward 
 
              [sic] the Medium Work category.  Light work category 
 
              includes lifting no more than 20 pounds on an 
 
              occasional basis and up to 10 pounds on a frequent 
 
              basis and typically requires standing and walking for 
 
              six hours out of an eight hour day.  Medium work 
 
              category includes maximum occasional lifting up to 50 
 
              pounds and frequent lifting up to 25 pounds and 
 
              typically being on the feet a minimum of six hours out 
 
              of an eight hour day.  Mr. Romeo may be most 
 
              appropriate for a job that falls within these 
 
              recommendations.  Mr. Romeo has more difficulty sitting 
 
              than he does standing or walking.  So, it may be most 
 
              appropriate for him to start out with the type of job 
 
              where he would be standing or walking and then spending 
 
              more time sitting and slowly working more into a 
 
              sitting type of job.  Depending on the type of job Mr. 
 
              Romeo would be going into, it may be appropriate for 
 
              him to undergo work hardening in preparation for that 
 
              job.  Mr. Romeo stated to me a number of job 
 
              experiences other than heavy labor that he may be 
 
              qualified to do.  I urged him to pursue this route with 
 
              his vocational counselor in the future, and I'm sure 
 
              that will be taken care of.
 
         
 
         (Cl. Ex. l, p. 12)
 
         
 
              In August of 1991, Dr. McGuire rated claimant as having a 
 
         four percent permanent partial impairment.  In support of his 
 
         writing, Dr. McGuire opined:
 
         
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              He is a long ways out from his injury, he really hasn't 
 
              made any improvement.  I would place no lifelong 
 
              permanent restrictions on him.  I realize he has back 
 
              pain, I realize he has subtle abnormalities on his CAT 
 
              scan and MRI, but he has lived a year of his life 
 
              without dying from this, without this problem getting 
 
              worse by diagnostic study.  By the AMA guidelines, we 
 
              are to assign a permanent partial disability rating.  
 
              Based on his subjective complaints of pain, his minimal 
 
              objective findings and his findings on his diagnostic 
 
              studies, his permanent partial disability rating would 
 
              have to be in the single digits.  Some of his problems 
 
              probably predate his injury, therefore, I put his PPD 
 
              at 4%.  Again, I don't see the evidence of a pars 
 
              defect I thought I saw on his plain films.
 
         
 
         (Cl. Ex. 1, p. 27)
 
         
 
              After claimant received an impairment rating from Dr. 
 
         McGuire, claimant obtained an independent medical examination 
 
         from Joseph Doro, D.O.  Dr. Doro is a board certified 
 
         neurologist.  He examined claimant on November 6, 1992.  In his 
 
         report of the same date, Dr. Doro opined:
 
         
 
              On sensation, there was a slight decrease of pinprick 
 
              along the dorsum of the foot on the left.  This was in 
 
              a patchy area which was not reproducible.  There is no 
 
              extinction.  Gait and station are normal.  The patient 
 
              walks on a normal base.  No difficulties with 
 
              associated movements or postural reflexes.  Muscle 
 
              stretch reflexes are equal and symmetric bilaterally.  
 
              There are no pathologic reflexes.  There are no 
 
              meningeal signs and no cerebellar signs.  There are no 
 
              bruits auscultated.
 
         
 
                  ...
 
         
 
                 This man has a history of back injury and has had 
 
              pain since then.  There are some components to the pain 
 
              as well as to some of his sensory symptoms which would 
 
              be consistent with mild nerve root irritation.  His MRI 
 
              and his CT scan do show a protruding disc to the left.
 
         
 
                 In view of his symptoms, I would relate the pain 
 
              that he has to the injury that he had in April of 1991.  
 
              [sic].  Whether this is on a musculoskeletal basis or 
 
              whether this is secondary to the findings that are seen 
 
              on MRI and CT is not entirely clear to me.  Certainly, 
 
              he has some symptoms suggestive of some mild nerve root 
 
              irritation, but in terms of motor abnormalities, 
 
              reflexes, straight leg raising, etc., these are 
 
              negative which one would expect to find some 
 
              abnormality if this were nerve root.
 
         
 
                 EMG could be done to further look at the potential 
 
              for motor involvement if this were radiculopathy and 
 
              also CT myelography would be another procedure to do to 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              further delineate how much of his present symptoms are 
 
              secondary to structural abnormalities.
 
            However, in view of the patient's feelings regarding surgery, 
 
         one can argue as to the merits of doing these other tests if it 
 
         is not going to change our treatment whatever the findings should 
 
         be.
 
            I explained to the patient that from a treating point of view, 
 
         if he were my patient in that capacity since he is having such 
 
         debilitating problems and that he has not responded to 
 
         conservative therapy, that I would proceed with CT myelography as 
 
         well as EMG looking for a structural cause and if an operable 
 
         lesion were found, then I would consider that to be a strong 
 
         option in this situation. 
 
            However, that would be something that he would have to think 
 
         more about and discuss with his treating physician.
 
            Otherwise, I don't think that there is much more to offer him 
 
         in terms of treatment since he has reached his maximum 
 
         improvement with the present conservative therapy.
 
         
 
         (Defendants' Ex. D, p. 16)
 
         
 
              In addition to the above physicians, claimant was also 
 
         examined on one occasion by Deems Ortega, Ph.D., a psychologist 
 
         who specializes in pain management.  Dr. Ortega opined that 
 
         claimant would benefit from assisted relaxation training (Cl. Ex. 
 
         1, p. 6).  Dr. Ortega also opined that claimant had various 
 
         psychological factors which were affecting his physical condition 
 
         (Cl. Ex. 1, p. 6).
 
         
 
              During the course of his medical treatment, claimant was 
 
         informed that his employer no longer had a position which was 
 
         within the restrictions imposed by Mr. Ungs and Dr. McGuire.  
 
         Carla Summy, R.N., was assigned to manage claimant's case and to 
 
         chart claimant's progress.  Ms. Summy provided a three page list 
 
         of job opportunities for claimant to pursue.  At the hearing, 
 
         claimant testified that he had not sought employment since he was 
 
         injured, nor had claimant worked in any capacity, since the date 
 
         of the injury.
 
         
 
                                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).
 
         
 
              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 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         relied upon by the expert as well as other surrounding 
 
         circumstances.  The expert opinion may be accepted or rejected, 
 
         in whol body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  
 
         Impairment and disability are not synonymous.  The degree of 
 
         industrial disability can be much different than the degree of 
 
         impairment because industrial disability references to loss of 
 
         earning capacity and impairment references to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of the healing period; 
 
         the work experience of the employee prior to the injury and after 
 
         the injury and the potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Likewise, an employer's refusal to give any sort of work to an 
 
         impaired employee may justify an award of disability.  McSpadden 
 
         v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  Neither does a rating of 
 
         functional impairment directly correlate to a degree of 
 
         industrial disability to the body as a whole.  In other words, 
 
         there are no formulae which can be applied and then added up to 
 
         determine the degree of industrial disability.  It therefore 
 
         becomes necessary for the deputy or commissioner to draw upon 
 
         prior experience as well as general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 529 (App. March 26, 1985); 
 
         Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
         Industrial Commissioner Decisions 654 (App. February 28, 1985).
 
         
 
              Compensation for permanent partial disability shall begin at 
 
         the termination of the healing period.  Compensation shall be 
 
         paid in relation to 500 weeks as the disability bears to the body 
 
         as a whole.  Section 85.34.
 
         
 
              The first issue to address is whether the work injury which 
 
         claimant sustained caused any permanent partial disability.  
 
         There is objective evidence to support claimant's low back 
 
         condition.  Both the CT scan and the MRI establish minimal 
 
         abnormalities.  Additionally, there is a small sensory loss in 
 
         claimant's left foot.  Dr. McGuire opined claimant's condition 
 
         was real and that claimant was not faking it (Cl. Ex. 1, p. 18).  
 
         Dr. Doro also related claimant's low back condition to the work 
 
         injury in question (Dr. Doro's report of November 6, 1992).  
 
         Claimant has met the requisite causal connection to establish 
 
         that he has a permanent partial disability as the result of his 
 
         work injury on April 30, 1990.
 
         
 
              The next issue to address is the nature and extent of 
 
         claimant's permanent partial disability.  Dr. McGuire, who has a 
 
         reputation as a "very conservative evaluator," has rated claimant 
 
         as having a four percent permanent partial impairment.  The 
 
         rating is the result of claimant's back condition.  In addition 
 
         to the impairment rating, Dr. McGuire has restricted claimant to 
 
         light to medium work categories where he is not lifting more than 
 
         40 pounds on an occasional basis.  The functional capacity 
 
         evaluation which has been conducted is consistent with the 
 
         restrictions imposed by Dr. McGuire.  Claimant is capable of 
 
         handling duties in the light to medium work categories.  The 
 
         evaluating physician, Dr. Doro, concurs with the opinion of Dr. 
 
         McGuire, relative to the work restrictions. 
 
         
 
              Claimant can engage in meaningful employment, although his 
 
         available labor market is now restricted.  Previous to the work 
 
         injury, claimant had engaged in manufacturing and in construction 
 
         positions which involved work duties in the moderate to heavy 
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         work categories.  His previous employment had also involved many 
 
         supervisory responsibilities.  His job skills are transferable to 
 
         positions in the light and medium work classifications.  It is 
 
         true that defendant employer is unwilling to accommodate 
 
         claimant, given his work restrictions.  However, claimant is not 
 
         precluded from all types of positions.
 
         
 
              It is acknowledged that prior to the work injury, claimant 
 
         had years of employment where the periods of employment were 
 
         sporadic or only covered partial years of employment.  He has not 
 
         always earned wages at the high end of the scale.
 
         
 
              It is quite clear to the undersigned that claimant has been 
 
         less than cooperative in his efforts to rehabilitate himself.  
 
         Claimant has not faithfully attended his physical therapy 
 
         sessions.  He has missed many appointments.  Claimant has not 
 
         cooperated with the nurse who had been assigned to assist 
 
         claimant in his rehabilitation.  Claimant voluntarily terminated 
 
         the services of the rehabilitation nurse even though she had 
 
         presented claimant with numerous names and addresses of potential 
 
         employers in the Des Moines area.  Claimant is totally 
 
         unmotivated to seek employment or even to attempt employment.  
 
         The undersigned deputy has observed many other claimants, with 
 
         far greater objective findings of impairment, who have been at 
 
         least willing to attempt rehabilitation.  This deputy is not 
 
         impressed with the efforts of claimant.  The efforts have been 
 
         minimal, at best.  He is advised to explore the "psychological 
 
         factors which are affecting claimant's physical condition," and 
 
         which Dr. Ortega has briefly discussed in his report.
 
         
 
              Claimant is intelligent.  He is articulate.  He is wasting 
 
         his talents.  He has years of experience in supervising, 
 
         overseeing, and managing people.  He has some knowledge of 
 
         accounting.  Claimant has owned and operated his own business.  
 
         It is hoped that claimant will make use of his talents, as he has 
 
         potential.
 
         
 
              Therefore, in light of the foregoing, as well as in light of 
 
         the testimony, and this deputy's observations of claimant, it is 
 
         the determination of the undersigned that claimant has a 15 
 
         percent permanent partial disability.  He is entitled to 75 weeks 
 
         of permanent partial disability benefits at the stipulated rate 
 
         of $253.70 per week and commencing on the 31st day of October, 
 
         1990.
 
         
 
              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 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. 
 
         McCord, 394 N.W.2d 405 (Iowa 1986).
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Claimant is entitled to healing period benefits from April 
 
         30, 1990 through October 30, 1990.  This is a period of 26.286 
 
         weeks of benefits at the stipulated rate of $265.53 per week.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered that:
 
         
 
              Defendants shall pay unto claimant seventy-five (75) weeks 
 
         of permanent partial disability benefits at the stipulated rate 
 
         of two hundred sixty-five and 53/l00 dollars ($265.53) per week 
 
         and commencing on October 31, 1990.
 
         
 
              Defendants shall pay unto claimant twenty-six point 
 
         two-eight-six (26.286) weeks of healing period benefits at the 
 
         stipulated rate of two hundred sixty-five and 53/l00 dollars 
 
         ($265.53) per week.
 
         
 
              Defendants shall take credit for all permanent partial 
 
         disability benefits previously paid to claimant.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (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 June, 1993.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Larry L. Miller 
 
         Attorney at law
 
         2600 72nd Street,
 
         Suite D
 
         Des Moines, Iowa 
 
         
 
         Ms. Iris Post
 
         Attorney at law
 
         2222 Grand Avenue
 
         PO Box 10434
 
         Des Moines, Iowa 50306
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                              1803
 
                                              Filed June 22, 1993
 
                                              MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         DENNIS ROMEO,                 :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 947894
 
         WOODMARC,                     :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         UNITED STATES FIDELITY &      :
 
         GUARANTY CO.,                 :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
         1803
 
         Claimant sustained a work-related injury to his low back.  The 
 
         injury occurred on April 30, 1990.  There were some objective 
 
         findings to support claimant's low back condition, however, the 
 
         objective findings were minimal.
 
         
 
         Claimant had many subjective complaints.  There was some evidence 
 
         of a psychological overlay.
 
         
 
         Dr. McGuire, the treating physician, rated claimant as having a 
 
         permanent partial impairment of 4 percent.  The evaluating 
 
         physician did not asses a permanent partial impairment.  He did 
 
         concur with Dr. McGuire, relative to the restrictions which were 
 
         imposed.  Claimant was precluded from any lifting greater than 40 
 
         pounds.  Defendant-employer refused to accommodate claimant, 
 
         given the restrictions imposed.
 
         
 
         Claimant was unmotivated.  He put little time and effort into the 
 
         physical therapy which two physicians had ordered on separate 
 
         occasions.  Claimant voluntarily terminated the services he was 
 
         receiving from the registered nurse who had been hired to assist 
 
         in claimant's rehabilitation.  Claimant was supplied with a list 
 
         of potential job openings.  He  refused to apply for the jobs 
 
         listed.   Claimant sought no employment opportunities on his own.  
 
         He had not worked since the date of the work injury.
 
         
 
         Claimant was bright and articulate.  He had supervisory skills 
 
         which were transferable.  He had some knowledge of accounting and 
 
         bookkeeping.  Previous employment had been sporadic but claimant 
 
         had managed his own construction business.  Meaningful employment 
 
         is available to him.  Claimant refuses to assist in his own 
 
         rehabilitation.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         HELD:  Claimant has sustained a 15 percent permanent partial 
 
         disability as a result of his work injury.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         BETTY MADDOCKS,       
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                 File No. 948414
 
         GLENWOOD STATE HOSPITAL-  
 
         SCHOOL,     
 
                                                   A P P E A L
 
              Employer,   
 
                                                 D E C I S I O N
 
         and         
 
                     
 
         STATE OF IOWA,   
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         March 3, 1993 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of December, 1993.
 
         
 
         
 
         
 
         
 
                                    ________________________________
 
                                           BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         P.O. Box 1588
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. James F. Christensen
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed December 20, 1993
 
                                            Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            BETTY MADDOCKS,       
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 948414
 
            GLENWOOD STATE HOSPITAL-   
 
            SCHOOL,     
 
                                                    A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and        
 
                        
 
            STATE OF IOWA,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1803
 
            Claimant (61 years of age) awarded 30 percent industrial 
 
            disability.  She was an RN who had worked for more than 17 
 
            years for the Glenwood State Hospital School.
 
            Restrictions included an eight percent functional 
 
            impairment, no lifting of more than 30 pounds, and no 
 
            repetitive bending, lifting or twisting.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BETTY MADDOCKS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 948414
 
            GLENWOOD STATE HOSPITAL       :
 
            SCHOOL,                       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Betty Maddocks, against her former employer, 
 
            Glenwood State Hospital School, and the State of Iowa.  The 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on February 3, 1993, at Council 
 
            Bluffs, Iowa.
 
            
 
                 The evidence in the case consists of testimony from the 
 
            claimant, Emma Jo Hammers, Earl Maddocks III, Earl Maddocks, 
 
            Jr., Barbara Slama, and Judith Anglen; claimant's exhibits 1 
 
            through 13; and, defendants' exhibits A through E.
 
            
 
                                      ISSUES
 
            
 
                 In accordance with the prehearing report submitted by 
 
            the parties at the hearing, the following issues are 
 
            presented for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on April 18, 
 
            1990, which arose out of and in the course of her 
 
            employment;
 
            
 
                 2.  Whether there is a causal relationship between 
 
            claimant's alleged injury and her disability;
 
            
 
                 3.  Whether claimant is entitled to permanent partial 
 
            disability benefits; and,
 
            
 
                 4.  Whether claimant is an odd-lot employee.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            FINDINGS OF FACT
 
            
 
                 The undersigned deputy having reviewed all of the 
 
            evidence received finds the following facts:
 
            
 
                 Claimant, Betty Maddocks, was born on April 21, 1931.  
 
            At the time of the hearing, she was 61 years of age.  
 
            Claimant has been married for 43 years, and has five 
 
            children, none of whom are dependents.  Claimant stated that 
 
            she maintains a good relationship with her children, 
 
            although due to her alleged injury and subsequent physical 
 
            condition is unable to travel extensively to visit them.  
 
            However, claimant did attend her youngest son's wedding in 
 
            Alaska, an event which took place in June of 1991, and took 
 
            vacation trips to several other states, including Wisconsin, 
 
            Florida and Nevada in 1991 and 1992.
 
            
 
                 Claimant, who is a high school graduate, earned her 
 
            licensed practical nursing degree in 1969 from Iowa Western 
 
            Community College.  In 1984, at the age of 53, claimant 
 
            obtained her registered nursing degree from the College of 
 
            St. Mary.  Claimant stated that obtaining her nursing degree 
 
            was a "life long dream."
 
            
 
                 Claimant was a very motivated student, as she continued 
 
            working the night shift at the Glenwood State Hospital 
 
            School while she was studying to become a nurse.  It was 
 
            evident that claimant was rightfully very proud of her 
 
            accomplishments.
 
            
 
                 Claimant had been an employee at the defendant Glenwood 
 
            State Hospital School for approximately seventeen and 
 
            one-half years before her alleged accident in April 1990.
 
            
 
                 All of the residents at the hospital are mentally 
 
            and/or physically challenged.  There are three 
 
            classifications of workers in the health care field at the 
 
            school.  A resident treatment worker (RTW) provides daily 
 
            care for the clientele in the form of bathing clients, 
 
            transporting them from the recreation class to their rooms, 
 
            feeding them and teaching classes.  The LPNs and RNs, the 
 
            two other classes of professionals, provide medical care to 
 
            the patients in the form of assessments and evaluations, and 
 
            also assist with teaching procedures for the clients.  At 
 
            some time or another, claimant has held each of these three 
 
            positions.  Claimant had enjoyed her career with the school, 
 
            and had not planned on retiring at age 62.
 
            
 
                 From approximately 1980 until April of 1990, claimant 
 
            was assigned to the night shift which began at 10:15 p.m. 
 
            and ended at 6:15 a.m.  She viewed the shift as one which 
 
            did not require the physical demands as those workers who 
 
            were assigned to the day or p.m. shifts.  Claimant explained 
 
            that because the clients were usually asleep and were 
 
            contained in the various units on the campus, assessments 
 
            and evaluations were easier to perform, and the workers were 
 
            not required to walk around the campus as much during the 
 
            night shift.
 
            
 
                 On April 18, 1990, at approximately 6:00 a.m., claimant 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            was working in the hospital area.  Claimant was attempting 
 
            to care for a female client who was visibly upset.  Claimant 
 
            stated that the client reached up and grabbed claimant by 
 
            the collar and jerked her forward.  By attempting not to 
 
            fall on top of the client, claimant pulled back and twisted 
 
            her shoulders and low back.  She felt a sharp pain in her 
 
            low back and reported the incident to the appropriate 
 
            personnel the same day.  Claimant continued to have pain the 
 
            following day but reported to work.  She first sought 
 
            medical treatment on April 25, 1990, when she visited the 
 
            emergency room at Jennie Edmundson Hospital in Council 
 
            Bluffs, Iowa.  She was treated by Behrouz Rassekh, M.D., a 
 
            neurologist.  His notes, mostly illegible, indicate that 
 
            claimant was to return to work on May 2, 1990 (Defendants' 
 
            Exhibit D(1)).
 
            
 
                 Claimant returned to Dr. Rassekh on May 1 and continued 
 
            to complain of pain in her low back.  Dr. Rassekh 
 
            recommended she use a heating pad and ordered physical 
 
            therapy.  He also prescribed orudis (Def. Exs. D(1) and 
 
            D(2)).
 
            
 
                 The defendants referred claimant to Back Care, Inc., 
 
            for physical therapy where she came under the care of Frank 
 
            P. LaMarte, M.D.  Her first visit was on May 10, 1990, and 
 
            her chief complaints were of low back pain, left hip pain 
 
            and occasional dull pain in the left anterior thigh.  
 
            According to the claimant, this pain affected sleeping, 
 
            driving, standing, sitting, bending, lifting and housework 
 
            activities on a daily basis.  Dr. LaMarte's examination 
 
            revealed tenderness over the left S1 joint and over the 
 
            lower lumbar spine on the left side.  Claimant reported some 
 
            low back discomfort while performing a straight leg test on 
 
            the left side.  Dr. LaMarte's impression was that of acute 
 
            low back pain probably secondary to myofascial strain.  He 
 
            recommended an x-ray of the lumbar spine and prescribed a 
 
            stretching and strengthening exercise program.  Eventually, 
 
            claimant was to move into an active rehabilitation program 
 
            with utilization of passive physical therapy modalities 
 
            including ultrasound and cold and hot packs.  She was to 
 
            undergo treatment for six to eight weeks and the prognosis 
 
            was guarded due to claimant's weight. Claimant is five feet 
 
            one and one-half inches tall and weighs approximately 240 
 
            pounds (Cl. Ex. 2(i), pp. 1-2).
 
            
 
                 Claimant returned to Dr. LaMarte on May 31, 1990, and 
 
            was started on a home exercise program.  Dr. LaMarte 
 
            released claimant to return to work on June 4, 1990, with 
 
            restrictions of no lifting.  Claimant was to be given the 
 
            opportunity to sit and stand when necessary, and he 
 
            recommended that she be assigned to office desk-type work 
 
            (Cl. Ex. 2(h)).
 
            
 
                 Claimant returned to Dr. LaMarte on June 26, 1990, 
 
            complaining of an exacerbation of her symptoms.  She had not 
 
            returned to work, and Dr. LaMarte recommended an MRI scan of 
 
            the lumbar spine (Cl. Ex. 2(g)).  The results of the MRI 
 
            scan revealed a herniated disc at the L1-2 level, 
 
            spondylolisthesis at the L5-S1 level and bilateral foraminal 
 
            stenosis at the L5-S1 level.  Dr. LaMarte referred claimant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            to John L. Fox, M.D. (Cl. Ex. 2(f)).  Dr. Fox reviewed the 
 
            MRI scan and concurred that spine changes were consistent 
 
            with an L1-2 disc herniation and diffuse bulging of the disc 
 
            at the L5-S1 level.  He also noted mild spondylolisthesis at 
 
            the L5-S1 level.  However, he believed that these defects 
 
            were "incidental to her complaints of pain."  He believed 
 
            her complaints stemmed from the spondylolisthesis condition, 
 
            and diagnosed chronic low back strain, obesity, 
 
            psychophysiologic musculoskeletal reaction.  He recommended 
 
            an orthopedic evaluation and possible treatment from the 
 
            pain clinic at the University of Nebraska Medical Center 
 
            (Cl. Ex. 3, pp. 1-2)).
 
            
 
                 Claimant was then sent to Michael T. O'Neil, M.D.  He 
 
            reviewed claimant's x-rays and agreed that claimant 
 
            displayed Grade I spondylolisthesis of the L5-S1.  Although 
 
            he did not believe claimant was a candidate for surgery, he 
 
            did recommend further conservative treatment.  He also 
 
            agreed with Dr. Fox's assessment that claimant had a 
 
            psychosomatic functional overlay or physiological 
 
            musculoskeletal reaction.  He suggested claimant lose weight 
 
            and continue therapy (Cl. Ex. 4(b), pp. 1-3; Def. Ex. E(1).  
 
            Dr. O'Neil was of the opinion that claimant had an 8 percent 
 
            permanent impairment of the body as a whole as a result of 
 
            an injury "superimposed on a preexisting nonsymptomatic 
 
            Grade I spondylolisthesis of L5, S1."  He imposed activity 
 
            restrictions of no repetitive stooping, twisting or bending 
 
            and no lifting of more than 25 to 30 pounds repetitively 
 
            (Cl. Ex. 4(a)).
 
            
 
                 Claimant then returned to Dr. LaMarte whose last 
 
            report, dated December 4, 1990, provides the following 
 
            information:
 
            
 
                 MRI scan performed 6/28/90 did reveal a mild 
 
                 spondylolisthesis at the L5,S1 level.  This would 
 
                 be consistent with a Grade I spondylolisthesis.  
 
                 The AMA Guide Guide [sic] to the Evaluation of 
 
                 Permanent Impairment, Third Edition, states that a 
 
                 Grade I spondylolisthesis accompanied by medically 
 
                 documented injury and a minimum of six months of 
 
                 medically documented pain, recurrent muscle spasm, 
 
                 or rigidity results in a permanent impairment of 
 
                 the body as a whole.
 
            
 
                    My examinations have failed to reveal a 
 
                 recurrent muscle spasm or rigidity.  In my 
 
                 opinion, there is a significant emotional 
 
                 component associated with her pain and this makes 
 
                 it very difficult to determine how much true pain 
 
                 she is experiencing.  In my opinion her reported 
 
                 work related injury dated 4/18/90 did not cause 
 
                 her spondylolisthesis.
 
            
 
                    ....
 
            
 
                    Based on her subjective complaint and not on 
 
                 any objective findings, I doubt that she will be 
 
                 able to perform any heavy manual labor.  I do not 
 
                 feel I can outline any specific restrictions 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 since, in my opinion, we are dealing more with an 
 
                 emotional response to pain rather than a physical 
 
                 response.
 
            
 
            (Cl. Ex. 2(a))
 
            
 
                 Claimant has also been treated by Harris A. Frankel, 
 
            M.D, a neurologist in Omaha, Nebraska.  His involvement 
 
            included an overall neurological examination which did not 
 
            produce abnormal findings except minimal discomfort when 
 
            claimant performed straight leg raising tests on the right.  
 
            Dr. Frankel agreed that the results of the MRI revealed a 
 
            bulging disc at the L1-2 level and diffuse bulging at L5-S1.  
 
            He also noted Grade I spondylolisthesis.  His final analysis 
 
            was that claimant had sustained an 8 percent functional 
 
            impairment of the whole person.  He recommended that 
 
            claimant avoid frequent and/or repetitive bending, stooping, 
 
            twisting, and lifting of anything weighing more than 30 
 
            pounds (Cl. Ex. 1(c)-1(g)).  Specifically, Dr. Frankel was 
 
            concerned about claimant's ability to lift a stretcher from 
 
            an emergency van.  He advised that she avoid lifting more 
 
            than 150 pounds from a heighth of 34 inches.  He was of the 
 
            opinion that claimant would be able to perform CPR, driving 
 
            duties, stepping up into an emergency vehicle with a step 16 
 
            inches off of the ground, and walking about the campus to 
 
            make rounds (Cl. Ex. 1(b)).  In May of 1991, claimant 
 
            returned to Dr. Frankel with continued complaints of low 
 
            back pain.  Claimant felt that her low back pain had 
 
            increased due to the requirements of the daytime shift (Cl. 
 
            Ex. 1(a)).
 
            
 
                 Dr. Rassekh wrote a series of reports dated September 
 
            13, 1991; September 30, 1991; March 26, 1992; and, April 7, 
 
            1992.  In summation, he expressed his opinion that based on 
 
            his treatment from April 20 to May 8, 1990, and a March 20, 
 
            1992 examination, he believed claimant had sustained an 8 
 
            percent impairment due to chronic back pain resulting from a 
 
            soft tissue injury.  He believed claimant's weight also 
 
            aggravated her back condition.  Dr. Rassekh recommended that 
 
            claimant not return to work as a nurse due to the lifting 
 
            and repeated bending required by the duties (Cl. Ex. 5(a)-
 
            5(d)).
 
            
 
                 With Dr. Frankel's assessment in mind, a personnel 
 
            committee at the hospital decided claimant would be 
 
            transferred to the day shift.  Ms. Slama, who was part of 
 
            the committee that recommended the transfer, felt the 
 
            transfer was reasonable to accommodate claimant's condition.  
 
            The general tone of both Ms. Slama's and Judith Anglen's 
 
            testimony is that there is more likelihood that claimant 
 
            would be required to lift a stretcher if she were working 
 
            the night shift as opposed to exposure to lifting a 
 
            stretcher if she were working the day shift.  Claimant 
 
            testified that this would not be the case, and that she had 
 
            never been required to lift a stretcher while working the 
 
            night shift.
 
            
 
                 In any event, claimant attempted to return to work on 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the day shift in April of 1991.  She was able to work for 
 
            only several days.  She stated that the pain was so severe 
 
            that she was unable to continue working the day shift.  
 
            Eventually, claimant was formally terminated.
 
            
 
                 Defendants submit that they were particularly concerned 
 
            with claimant's health and safety because once she returned 
 
            to work she filed six accident reports.  Claimant explained, 
 
            and defendants concurred that the hospital's policy mandated 
 
            employees to document every or almost every type of accident 
 
            and/or injury sustained at the facility.  Given the nature 
 
            and environment of the facility, the number of incident 
 
            reports filled out by claimant does not appear to be 
 
            excessive (Def. Ex. 11).
 
            
 
                 In May of 1991, claimant was referred to Patrick W. 
 
            Bowman, M.D, at the advice of her family physician, Robert 
 
            K. Fryzek, M.D.  Dr. Bowman also obtained thoracic and 
 
            lumbar spine x-rays.  He felt claimant had spondylosis of 
 
            the dorsal spine, degenerative disc disease of the lumbar 
 
            spine and a possible spondylolysis at the L5 level.  No 
 
            surgery was recommended and Dr. Bowman suggested claimant 
 
            learn to "live with the condition expecting better days in 
 
            the future." (Cl. Ex. 6(1) through 6(4)).
 
            
 
                 In March of 1992, claimant received an additional 
 
            neurological examination by Dr. Rassekh.  He noted 
 
            "ante-flexion" of the spine and believed claimant had a 
 
            chronic back pain condition due to a soft tissue injury.  He 
 
            agreed that claimant had an 8 percent disability rating.  He 
 
            also stated:
 
            
 
                    The patient was advised to have psychological 
 
                 assessment to determine how much of her pain is on 
 
                 the organic basis and how much is functional.  I 
 
                 did not recommend psychiatric treatment but only 
 
                 psychological evaluation so that we will be in 
 
                 better position to state if she needs long-term 
 
                 psychiatric treatment.
 
            
 
            (Cl. Ex. 5(b))
 
            
 
                 Dr. Rassekh attributed some of claimant's pain to her 
 
            weight (Cl. Ex. 5(a)).
 
            
 
                 Claimant underwent a work capacity evaluation in May of 
 
            1992.  Apparently, claimant was able to complete the 
 
            pre-evaluation interview, but when the evaluation exercises 
 
            started, claimant was unable to complete a hand grip 
 
            strength test and a push-pull dynamometer test at which 
 
            point she became weepy and was complaining of severe pain.  
 
            The remainder of the physical testing evaluation was 
 
            rescheduled for June 5, 1992.  When claimant left the 
 
            clinic, she was admitted to the psychiatric unit at Jennie 
 
            Edmundson Hospital in Council Bluffs, Iowa.  Claimant was 
 
            disoriented, could not remember where she was and could not 
 
            recall undergoing any of the work evaluation procedures.  
 
            She was discharged from the hospital despite objections from 
 
            the attending physicians.  The final diagnosis was that of 
 
            probable conversion disorder and chronic pain syndrome (Cl. 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Ex. 8(b), 8(c)).
 
            
 
                 Claimant subsequently reported to the Working Back 
 
            Institute again in June of 1992.  During this visit, she was 
 
            able to complete the evaluation, but the physical therapist, 
 
            Karen Brown, stated that claimant did not pass the validity 
 
            profile and produced submaximal effort.  Ms. Brown noted 
 
            that claimant had extreme anxiety over her pain and was 
 
            apprehensive about reinjury and therefore exhibited 
 
            submaximal efforts during the evaluation.  Minimal 
 
            capacities were that claimant would be able to sit for an 
 
            hour, walk for brief periods of time, occasionally use 
 
            stairs, five pounds of lifting or carrying at the hip to 
 
            chest level and only intermittent and limited bending.  Ms. 
 
            Brown stated that claimant had a poor tolerance for 
 
            standing, poor hand grip strength and subnormal hand 
 
            dexterity skills (Cl. Ex. 10(b)).
 
            
 
                 In June of 1992, claimant underwent a vocational 
 
            evaluation and earnings capacity assessment performed by a 
 
            counselor associated with Midlands rehabilitation 
 
            consultants in Omaha, Nebraska.  At the end of the 
 
            interview, the counselor, James Rogers, stated that claimant 
 
            would not be a candidate for any type of vocational 
 
            rehabilitation services.  He felt claimant was in need of 
 
            further medical treatment, specifically, psychiatric 
 
            treatment followed by treatment at a pain center (Cl. Ex. 
 
            11).
 
            
 
                 Claimant has not returned to work at the Glenwood State 
 
            Hospital-School, and has applied for positions at the 
 
            following health care facilities:  Jennie Edmundson 
 
            Hospital; Mercy Hospital, Omaha, Nebraska; Clarkson 
 
            Hospital, Omaha, Nebraska; and, Methodist Hospital, Omaha, 
 
            Nebraska (Cl. Ex. 12).  She has not been hired by any of the 
 
            institutions.
 
            
 
                 Claimant has had some psychiatric problems in the past.  
 
            Throughout the medical records received for this case, there 
 
            have been numerous references to a potential diagnosis of 
 
            conversion disorder.  Also, it has been recognized that 
 
            claimant has a function overlay component to her symptoms.  
 
            Claimant has also been diagnosed as being depressed, and it 
 
            has been recommended that she seek psychiatric treatment.
 
            
 
                 Michael Taylor, M.D., a psychiatrist located in Des 
 
            Moines, reviewed claimant's medical records and determined 
 
            that she was suffering from a major depressive disorder 
 
            unrelated to the accident on April 18, 1990 (Def. Ex. F).
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained an injury on April 18, 1990, which arose out of 
 
            and in the course of her employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on April 18, 
 
            1990, which arose 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). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union et 
 
            al. Counties, 188 N.W.2d 283 (Iowa 19791); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63 (1955).
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
            
 
                 Although an incident report for the April 18, 1990 
 
            injury is probably the only report which was not introduced 
 
            into evidence by either party, the undersigned finds that 
 
            claimant was able to describe the incident with specificity 
 
            and clarity.  Given the nature of her work as a registered 
 
            nurse at the facility, claimant encountered patients or 
 
            clients with varying degrees of mental challenges.  She was 
 
            working her regular shift and performing the duties required 
 
            of her position.  She stated that she filled out an incident 
 
            report on the same day as the policy at the facility was to 
 
            report any injuries within 24 hours of the occurrence.  
 
            Likewise, the medical evidence is consistent with an injury 
 
            date on or about April 18, 1990.
 
            
 
                 As a result, it is found that claimant did sustain an 
 
            injury while at work on April 18, 1990, which arose out of 
 
            and in the course of her employment.
 
            
 
                 The next issue to be addressed is whether there is a 
 
            causal relationship between claimant's injury and her 
 
            disability.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of April 18, 
 
            1990, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, the mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
 
            preexisting condition or disability that is 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, 815 
 
            (1962).
 
            
 
                 Claimant submits that prior to the injury on April 18, 
 
            she was able to fully perform her job duties as a registered 
 
            nurse assigned to the night shift.  Indeed, the evidence 
 
            supplied to the undersigned supports a finding that claimant 
 
            has sustained a disability due to the condition of her back 
 
            subsequent to the work injury.  Claimant has missed a 
 
            substantial amount of work.  Several physicians have the 
 
            opinion that she sustained an 8 percent functional 
 
            impairment to the body as a whole.  Drs. Rassekh and Frankel 
 
            both are of the opinion that the injury caused the 
 
            disability.
 
            
 
                 Although defendants argue that claimant had a 
 
            preexisting condition of spondylolisthesis and other 
 
            degenerative changes, the evidence is clear that an MRI 
 
            performed shortly after the incident at work showed that 
 
            claimant also had a bulging disc at the L5-S1 level.  That 
 
            claimant had preexisting conditions is irrelevant, as an 
 
            injury on the job which aggravates an asymptomatic condition 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            is compensable.
 
            
 
                 Likewise, there is ample evidence in the record which 
 
            supports a finding that claimant has sustained a permanent 
 
            injury, and is entitled to healing period benefits as 
 
            governed by Iowa Code section 85.34(1).
 
            
 
                 The next issue to be addressed and whether claimant is 
 
            an odd-lot employee.
 
            
 
                 In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 
 
            1985), the Iowa court formally adopted the "odd-lot 
 
            doctrine."  Under that doctrine a worker becomes an odd-lot 
 
            employee when an injury makes the worker incapable of 
 
            obtaining employment in any well-known branch of the labor 
 
            market.  An odd-lot worker is thus totally disabled if the 
 
            only services the worker can perform are "so limited in 
 
            quality, dependability, or quantity that a reasonably stable 
 
            market for them does not exist."  Guyton, 373 N.W.2d at 105.
 
            
 
                 When viewing the record as a whole, and especially 
 
            considering claimant's educational background, she cannot be 
 
            described as an odd-lot employee.  It appears that with 
 
            claimant's restrictions, she is able to perform most of the 
 
            activities of an RN.  Her lifting capabilities will inhibit 
 
            her ability to perform work as she has in the past.  The 
 
            defendant hospital tried to accommodate her restrictions, 
 
            and apparently felt that claimant would be able to perform 
 
            her duties within her restrictions.  Claimant's complaint 
 
            about her new assignment rested with the amount of walking 
 
            she was required to perform on the day shift.
 
            
 
                 Claimant has not established by a preponderance of the 
 
            evidence that she is not employable in the competitive labor 
 
            market.
 
            
 
                 However, as claimant has sustained a permanent injury 
 
            to the body as a whole, an analysis of her industrial 
 
            disability is warranted.
 
            
 
                 At the time of her injury, claimant was almost 59 years 
 
            of age.  She is a high school graduate and has earned LPN 
 
            and RN degrees.  She had worked in the health care field for 
 
            more than 17 years.
 
            
 
                 Claimant's physical condition prior to the accident was 
 
            good, if not excellent.  She was able to perform all job 
 
            duties required by her position as an RN.  Defendants 
 
            attempted to accommodate claimant's physical limitations by 
 
            moving her from the night shift, where the need to lift a 
 
            stretcher is greater than on other shifts, to the day shift, 
 
            where more help would be available to claimant.
 
            
 
                 As pointed out by the defendants, and corroborated by 
 
            the medical evidence, claimant has a preexisting condition 
 
            called spondylolisthesis, as well as some arthritic changes 
 
            in the spine.  These conditions, however, were asymptomatic 
 
            prior to the April 18, 1990 incident.
 
            
 
                 Claimant also has a herniated disc at the L1-2 level 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            and diffuse bulging of the disc at the L5-S1 of the lumbar 
 
            spine.  Although the undersigned recognizes that the 
 
            incident at work did not cause claimant's spondylolisthesis, 
 
            it is found that the claimant's physical problems manifested 
 
            themselves due to the work injury.  Since the injury, she 
 
            has not returned to gainful employment.
 
            
 
                 Claimant's work restrictions encompass several 
 
            activities.  Drs. O'Neil and Frankel both opine that 
 
            claimant should refrain from lifting more than 30 pounds, 
 
            and recommended that claimant not perform repetitive 
 
            bending, stooping or twisting.  Dr. Frankel was mostly 
 
            concerned with claimant's ability to lift a stretcher, and 
 
            recommended that she not perform this activity.
 
            
 
                 Dr. LaMarte, after reviewing the results of the MRI 
 
            scan, felt that the defects found in claimant's spine were 
 
            incidental to her complaints of pain.
 
            
 
                 No one has recommended surgery.  All physicians who 
 
            have treated claimant have indicated that there is a 
 
            definite emotional reaction to her physical condition.  Most 
 
            have suggested a functional overlay.
 
            
 
                 Claimant has gone through a long healing process.  
 
            Although at several times during the period, she was 
 
            released to return to work either for full job duties or 
 
            restricted duties.  It was not until April of 1991 that she 
 
            did attempt to return to work, an attempt which lasted for 
 
            four or five days.
 
            
 
                 Two physicians also rendered opinions with respect to 
 
            claimant's functional impairment.  Drs. O'Neil and Frankel 
 
            both thought claimant had sustained an 8 percent functional 
 
            impairment due to the injury.
 
            
 
                 Perhaps the most troubling aspect of the case is 
 
            claimant's emotional response to the injury.  While 
 
            defendants argue that she had preexisting psychiatric 
 
            problems, she had not been treated for the same during the 
 
            three and one-half years prior to the injury.  In fact, it 
 
            seems claimant was an exemplary employee, even though Ms. 
 
            Slama indicated it was hard to depend on claimant due to her 
 
            loss of time from work for one reason or another.  This 
 
            latter fact is not supported by the evidence.
 
            
 
                 Emotional stability is one of many factors to evaluate 
 
            when determining claimant's industrial disability.  Even 
 
            though claimant had prior psychological problems, she had 
 
            not received treatment for the same since 1986.
 
            
 
                 Given her age and the nature of her injury, coupled 
 
            with claimant's past work experience, it is doubtful she 
 
            will be an attractive candidate for employment as a nurse.  
 
            It is unfortunate that defendants' attempt to accommodate 
 
            claimant's physical limitations reached only as far as 
 
            placing her on a different shift.  One physician recommended 
 
            a desk job, yet no attempt was made to allow claimant to 
 
            work in a role less demanding than that as an RN.  Perhaps 
 
            claimant's most severe restriction is the 30 pound lifting 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            restriction.  It is difficult to believe that claimant's 
 
            position with the facility would not consistently place her 
 
            in a position that would require lifting ability of more 
 
            than 30 pounds.
 
            
 
                 After considering all of the factors that have been 
 
            enumerated in the decision, it is found that claimant has 
 
            sustained a 30 percent industrial disability.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Defendants shall pay unto claimant permanent partial 
 
            disability for one hundred fifty (150) weeks at the rate of 
 
            three hundred forty-two and 44/100 dollars ($342.44) per 
 
            week beginning March 26, 1992.
 
            
 
                 Defendants shall pay all medical bills incurred due to 
 
            this accident.
 
            
 
                 That defendants shall pay the accrued weekly benefits 
 
            in a lump sum, and receive credit for benefits previously 
 
            paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
     
 
            
 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies To:
 
            
 
            Mr Sheldon M Gallner
 
            Attorney at Law
 
            803 Third St
 
            P O Box 1588
 
            Council Bluffs IA 51502-1588
 
            
 
            Mr James F Christenson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines IA 50319
 
            
 
            
 
 
            
 
 
 
                                
 
 
 
                                                 5-1802
 
                                                 Filed March 3, 1993
 
                                                 Patricia J. Lantz
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BETTY MADDOCKS,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 948414
 
            GLENWOOD STATE HOSPITAL       :
 
            SCHOOL,                       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1801
 
            Claimant (61 years of age) awarded 30% industrial 
 
            disability.  She was an RN who had worked for more than 17 
 
            years for the Glenwood State Hospital-School.
 
            Restrictions included an 8% functional impairment, no 
 
            lifting of more than 30 pounds, and no repetitive bending, 
 
            lifting or twisting.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         MARIA E. VALDES,              :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 948422
 
         IOWA STATE UNIVERSITY,        :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         STATE OF IOWA,                :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              The aforecaptioned case was set for hearing at the office of 
 
         the Industrial Commissioner on May 27, 1992.  The parties, 
 
         through their attorneys, entered into a stipulation whereby they 
 
         agreed to a running award for the duration of claimant's period 
 
         of disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant is to pay unto claimant a running award for weekly 
 
         benefits for the duration of claimant's period of disability with 
 
         said benefits commencing on February 24, 1990 and running contin
 
         uously through the period of disability at the stipulated rate of 
 
         two hundred sixty-seven and 28/l00 dollars ($267.28) per week.
 
         
 
              Defendant shall take credit for benefits previously paid 
 
         claimant.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year pur
 
         suant to section 85.30, Iowa Code, as amended.
 
         
 
              Costs are taxed to defendant pursuant to rule 343 IAC 4.33.
 
         
 
              Defendant shall file a claim activity report as requested by 
 
         this division pursuant to rule 343 IAC 3.l.
 
         
 
         
 
         
 
              Signed and filed this ____ day of July, 1992.
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Marvin E. Duckworth
 
         Ms. Jane E. Van Werden
 
         Attorneys at Law
 
         Terrace Center STE 111
 
         2700 Grant Avenue
 
         Des Moines, Iowa  50312
 
         
 
         Mr. Charles S. Lavorato
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1400; 1402
 
                                                  Filed July 24, 1992
 
                                                  MICHELLE A. McGOVERN
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARIA E. VALDES,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 948422
 
            IOWA STATE UNIVERSITY,        :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            1400; 1402
 
            Claimant failed to appear at his previously set hearing.   
 
            No evidence in support of his allegations of a compensable 
 
            work injury was presented.  Claimant failed to meet his 
 
            burden of proof.