BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
                 
 
       ROXANNE BENEFIEL,   
 
                 
 
          Claimant,   
 
                 
 
       vs.            
 
                                           File No. 948482
 
       PRINCIPAL MUTUAL LIFE    
 
       INSURANCE COMPANY,       
 
                                            A P P E A L
 
          Employer,   
 
                                           D E C I S I O N
 
       and            
 
                 
 
       WAUSAU INSURANCE COMPANIES,   
 
                 
 
          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 
 
       August 15, 1994 is affirmed and is adopted as the final agency 
 
       action in this case.
 
       
 
          Claimant shall pay the costs of the appeal, including the 
 
       preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of November, 1994.
 
       
 
       
 
                            ________________________________
 
                                    BYRON K. ORTON
 
                                INDUSTRIAL COMMISSIONER
 
       
 
       Copies To:
 
       
 
       Mr. Channing L. Dutton
 
       Attorney at Law
 
       West Towers Office Complex
 
       1200 35th Street, Suite 500
 
       West Des Moines, Iowa  50266
 
       
 
       Mr. Marvin E. Duckworth
 
       Attorney at Law
 
       2700 Grand Ave., Ste 111
 
       Des Moines, Iowa 50312
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                  2901, 2902, 2906, 3700, 1401,
 
                                  1402.40, 1803, 2206, 2209
 
                                  Filed November 30, 1994
 
                                  Byron K. Orton
 
                         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
       _________________________________________________________________
 
                 
 
       ROXANNE BENEFIEL,   
 
                 
 
          Claimant,   
 
                 
 
       vs.            
 
                                          File No. 948482
 
       PRINCIPAL MUTUAL LIFE    
 
       INSURANCE COMPANY,       
 
                                            A P P E A L
 
          Employer,   
 
                                           D E C I S I O N
 
       and            
 
                 
 
       WAUSAU INSURANCE COMPANIES,   
 
                 
 
          Insurance Carrier,   
 
          Defendants.      
 
       _________________________________________________________________
 
       
 
       2901, 2902, 2906, 3700
 
       
 
          The deputy excluded the deposition of claimant from evidence 
 
       on his own initiative for the reason that claimant was present in 
 
       the courtroom to testify on the points relevant and material to 
 
       the remaining issues at the time of hearing.  The deposition 
 
       could be used to refresh memory or to impeach the credibility of 
 
       the witness.
 
       
 
       1401, 1402.40, 1803, 2206, 2209
 
       
 
          It was determined that the injury, bilateral carpal tunnel 
 
       and bilateral cubital tunnel was not the cause of permanent 
 
       impairment, even though claimant had right and left carpal tunnel 
 
       surgery and right cubital tunnel surgery.
 
       
 
          Claimant did not prove that the injury was the cause of 
 
       thoracic outlet syndrome, chronic pain syndrome, myofascial pain 
 
       syndrome, reflex sympathy dystrophy, or Raynaud's disease.
 
       
 
          Claimant's shoulder, neck and back complaints preceded this 
 
       injury.  The recurrence of these symptoms did not recur until 
 
       claimant was off work and had performed no duties for employer 
 
       for over six months.  Likewise, it was determined that this was 
 
       not an aggravation of a preexisting condition.
 
       
 
          The one doctor who called it a thoracic outlet syndrome at 
 
       one time vacillated back and forth and ended up saying it was 
 
       either thoracic outlet syndrome or chronic pain syndrome, but he 
 
       could not determine which one.  His opinion was contrary to three 
 
       specialists that he had referred claimant to for an opinion on 
 
       thoracic outlet syndrome one of which was the final recognized 
 

 
 
 
 
 
 
 
 
 
       TOS specialist.
 
       
 
          The only impairment evaluator for the carpal tunnel and 
 
       cubital tunnel said there was no permanent impairment.  Claimant 
 
       did not have an independent medical examination to controvert or 
 
       rebut this opinion.
 
       
 
          The determination of no causal connection to permanent 
 
       disability made moot a determination of whether the injury was to 
 
       the hands, arms, or the body as a whole and claimant's 
 
       entitlement to permanent disability benefits.
 
       
 
 
            
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ROXANNE BENEFIEL,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 948482
 
            PRINCIPAL MUTUAL LIFE    
 
            INSURANCE COMPANY,  
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            WAUSAU INSURANCE COMPANIES,
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                                 INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Roxanne 
 
            Benefiel, claimant, against Principal Mutual Life Insurance 
 
            Company, employer, and Wausau Insurance Companies, insurance 
 
            carrier, defendants, for benefits as the result of an injury 
 
            which occurred on February 7, 1990.  
 
            
 
                 A hearing was held in Des Moines, Iowa, on November 22, 
 
            1993, and the case was fully submitted at the close of the 
 
            hearing.  Claimant was represented by Channing L. Dutton.  
 
            Defendants were represented by Marvin E. Duckworth and Tina 
 
            Eick.  The record consists of the testimony of Roxanne 
 
            Benefiel, claimant, Marsha Ray, manager, and Doug Hanselman, 
 
            vocational rehabilitation specialist, exhibit 1 minus pages 
 
            72 and 73 (Transcript page 219), exhibit 2 minus pages 110, 
 
            111, 112 (Tran. p. 225) and 114 and 115 (Tran. p. 227), 
 
            exhibit 3 minus pages 120, 121, 122 (Tran. p. 229), 126, 127 
 
            (Tran. p. 230), 133, 134 (Tran. p. 231) and pages 138 
 
            through 146 (Tran. p. 232), Exhibit 4, minus page 155 (Tran. 
 
            p. 233) and page 167 (Tran. p. 235), Exhibit 5, 7 and 8 
 
            (Tran. p. 240).  Exhibit 6, a deposition of claimant, was 
 
            excluded by the deputy for the reason that claimant was 
 
            present to testify at the hearing and the deposition could 
 
            be used to refresh memory or to impeach the credibility of 
 
            the witness.
 
            
 
                 The deputy ordered a transcript of the hearing.  
 
            Defendants' attorney filed an excellent post-hearing brief.  
 
            Claimant's attorney did not file a brief (Tran. pp. 211 & 
 
            212).
 
            
 
                                  STIPULATIONS
 
            
 
                 It was stipulated that claimant sustained an injury on 
 
            February 7, 1990, that arose out of and in the course of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            employment with employer; that the injury was the cause of 
 
            temporary disability; that claimant was entitled to and was 
 
            paid temporary disability benefits for the period from April 
 
            17, 1990 through July 14, 1991 (Tran. pp. 50 & 51); that the 
 
            medical expenses have all been paid; and that the rate of 
 
            compensation in the event of an award is $165.18 per week.  
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability. 
 
            
 
                 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 is 
 
            entitled to scheduled member benefits for an injury to a 
 
            scheduled member (hand or arm) or whether claimant is 
 
            entitled to industrial disability benefits for an injury to 
 
            the body as a whole (shoulders, neck, back or head).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                      causal connection-permanent disability
 
            
 
                 It is determined that the injury was not the cause of 
 
            permanent disability and that claimant is not entitled to 
 
            permanent disability benefits.  
 
            
 
                 In the past claimant worked for Happy Chef as a 
 
            waitress, cook and hostess from January of 1980 to June of 
 
            1983.  She worked for the Hotel Fort Des Moines as a 
 
            waitress, cashier and bartender from October of 1983 to July 
 
            of 1985.  Claimant worked for Hawkeye Security Insurance 
 
            Company from July of 1985 until March of 1988 handling mail, 
 
            filing and micro-fisching (Ex. 3, p. 125; Ex. 4, p. 148; 
 
            Tran. pp. 31-35).
 
            
 
                 Claimant started to work for employer on April 25, 1988 
 
            in the commercial real estate department as a receptionist 
 
            (Tran. pp. 36 & 110).  There were about 225 people on the 
 
            floor in that department at that time.  There were six 
 
            receptionists, including claimant.  Claimant explained that 
 
            a receptionist answered the overflow telephone calls to the 
 
            underwriters and other persons on the floor.  She described 
 
            that this work consisted of writing down urgent messages, 
 
            putting other messages on the CRT screen, preparing labels 
 
            for overnight mail and stamping documents.  Claimant related 
 
            that there were other special projects such as putting 
 
            together brochures for 801 Grand (Tran. pp. 36-44, 128 & 
 
            129).  
 
            
 
                 Marsha Ray, claimant's manager, testified that a 
 
            receptionist answered approximately 100 to 120 calls per day 
 
            (Tran. pp. 128-130 & 170).
 
            
 
                 Claimant testified that by February of 1990 she had 
 
            begun to experience problems in her arms, shoulders, neck 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            and back (Tran. pp. 44 & 45).  Claimant further explained 
 
            that the injury date of February 7, 1990 represented the 
 
            date that employer transferred claimant to the 
 
            rehabilitation department to perform lighter duties to 
 
            accommodate her injury symptoms (Tran. p. 48; Ex. 4, pp. 
 
            162-166).
 
            
 
                 Claimant related that as early as November of 1989 she 
 
            started to experience tingling and numbness in her hands and 
 
            it advanced into her neck, back and shoulders (Tran. pp. 44, 
 
            45 & 111).  Claimant testified that she reported this 
 
            problem to the company nurse and the nurse sent claimant to 
 
            see Arnis B. Grundberg, M.D., an orthopedic surgeon, in 
 
            January of 1990 (Tran. p. 46).  
 
            
 
                 Dr. Grundberg saw claimant on January 30, 1990.  He 
 
            diagnosed bilateral carpal tunnel syndrome, post operative 
 
            state, with recurrence of symptoms caused by the work that 
 
            she was doing for employer (Ex. 1, p. 1; Tran. pp. 51 & 52).  
 
            Previously, Sinesio Misol, M.D., another orthopedic surgeon, 
 
            had treated claimant for carpal tunnel syndrome in 1985 and 
 
            1987.  On May 15, 1987, Dr. Misol performed both a right and 
 
            a left carpal tunnel release (Ex. 1, pp. 10-18, 23 & 24; 
 
            Tran. pp. 52 & 119). 
 
            
 
                 On March 16, 1990, Dr. Grundberg said that an EMG 
 
            established a bilateral carpal tunnel and a bilateral 
 
            cubital tunnel syndrome but he declined to perform surgery 
 
            if claimant was not willing to change jobs (Ex. 1, p. 5; 
 
            Tran. p. 52).  Claimant only received injections from Dr. 
 
            Grundberg (Ex. 1, pp. 1-5).  
 
            
 
                 On March 22, 1990, Dr. Grundberg noted that claimant 
 
            was going to return to Dr. Misol for a second opinion (Ex. 
 
            1, p. 4).  Claimant testified that she requested to go back 
 
            to Dr. Misol (Tran. p. 52).  
 
            
 
                 During the course of his treatment of claimant at this 
 
            time, Dr. Grundberg does not make any mention or notation 
 
            whatsoever of any problems or complaints in claimant's 
 
            shoulders, neck or back (Ex. 1, pp. 1-6).
 
            
 
                 Claimant then saw Dr. Misol again on April 4, 1990 for 
 
            numbness, tingling and pain involving both upper 
 
            extremities.  He recorded that she does not sleep well at 
 
            night, is nervous and was thinking about requesting full 
 
            disability.  Dr. Misol diagnosed (1) recurrence, probably 
 
            secondary to scar of bilateral carpal tunnel surgery 
 
            performed three years ago, (2) mild ulnar cubital tunnel, 
 
            (3) past history of suicide attempt, and (4) possible 
 
            remaining psychological problems maybe even induced by 
 
            anorexia nervosa (Ex. 1, p. 8).  
 
            
 
                 Dr. Misol noted that he advised claimant that any 
 
            additional surgery would not be for the purpose of returning 
 
            her to work but only to relieve her symptoms and to enable 
 
            her to perform the duties of a homemaker (Ex. 1, p. 9).  Dr. 
 
            Misol performed another left carpal tunnel release on June 
 
            7, 1990 (Ex. 1, pp. 9 & 104; Tran. p. 51).  Dr. Misol had 
 
            planned to perform a right carpal tunnel and a right cubital 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            tunnel surgery but claimant's care was switched by the 
 
            insurance carrier to Scott B. Neff, D.O., another orthopedic 
 
            surgeon for another opinion (Tran. p. 53).
 
            
 
                 During the course of his treatment of claimant at this 
 
            time Dr. Misol makes no mention of any problems with 
 
            claimant's shoulders, neck or back (Ex. 1, pp. 6-9, 20-22).
 
            
 
                 Dr. Neff reported on April 23, 1990, May 16, 1990, June 
 
            11, 1990.  On October 29, 1990, Dr. Neff stated that he felt 
 
            that claimant had a positive Roo's sign and he recommended 
 
            that claimant see C. David Smith, M.D., a board certified 
 
            general surgeon, to rule out thoracic outlet syndrome prior 
 
            to performing any more surgeries on the right upper 
 
            extremity for carpal tunnel or cubital tunnel (Ex. 1, pp. 
 
            15-29; Tran. pp. 55 & 56). 
 
            
 
                 On January 16, 1991, Dr. Neff reported that Dr. Smith 
 
            did not feel that claimant had a thoracic outlet syndrome 
 
            (Ex. 1, p. 30).  Dr. Neff then performed a right carpal 
 
            tunnel revision and a right cubital tunnel release on 
 
            February 14, 1991 (Ex. 1, p. 32; Tran. p. 54).  The right 
 
            upper extremity was healing well on February 22, 1991 (Ex. 
 
            1, p. 33).  
 
            
 
                 Dr. Neff proposed to perform a left carpal tunnel 
 
            revision on March 29, 1991, but the surgery was cancelled 
 
            because the anesthesiologist learned that claimant had a 
 
            family history of malignant hyperthermia (Ex. 1, pp. 34 & 
 
            35).  The anesthesiologist refused to administer a general 
 
            anesthesia under outpatient surgical conditions.  Mercy 
 
            Hospital rules prohibited administering a general anesthesia 
 
            to a patient with malignant hyperthermia under any 
 
            conditions.  Claimant refused a block, which is a regional 
 
            anesthesia (Ex. 1, p. 36).  Thus, the third left carpal 
 
            tunnel surgery was never performed.  
 
            
 
                 On April 26, 1991, Dr. Neff reported that claimant had 
 
            a poor result from the right carpal tunnel and the right 
 
            cubital tunnel surgery and therefore he recommended against 
 
            the planned revision of the left carpal tunnel (Ex. 1, p. 
 
            37; Tran. pp. 55 & 56).  Dr. Neff said that the Roo's 
 
            maneuver on that date was equivocal.
 
            
 
                 During the entire period of time that claimant was 
 
            treated by Dr. Neff he did not treat claimant for shoulder, 
 
            neck or back pain (Ex. 1, pp. 25-42A).  He did mention one 
 
            time, in his letter of October 29, 1990, that claimant did 
 
            complain of numbness, aching and tingling in the left hand 
 
            that extended into her shoulder and neck (Ex. 1, p. 28).  No 
 
            other mention of shoulder, neck or back pain appears in his 
 
            office notes.
 
            
 
                 At the time of the history and physical on March 29, 
 
            1991,  (the date of the cancelled left carpal tunnel 
 
            revision surgery) Dr. Neff mentioned a limited range of 
 
            motion of the right shoulder and that a Roo's maneuver for 
 
            TOS was suspicious (Ex. 1, p. 58).  At the time of the 
 
            history and physical examination on February 14, 1991, (the 
 
            date of the right carpal and cubital tunnel surgeries) Dr. 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Neff made the same comment (Ex. 1, p. 41). 
 
            
 
                 Other than these few isolated passing comments, there 
 
            was no mention of an injury to the shoulder, neck or back in 
 
            Dr. Neff's records.  More importantly, there was no 
 
            treatment for claimant's shoulder, neck or back in Dr. 
 
            Neff's office notes.  Dr. Neff referred claimant to Dr. 
 
            Smith to see if she had thoracic outlet syndrome and Dr. 
 
            Smith said that she did not have it.
 
            
 
                 Claimant was taken off work on April 18, 1990 by Dr. 
 
            Misol (Ex. 1, p. 19; Tran. p. 50) even though she was paid 
 
            temporary disability benefits from April 17, 1990.
 
            
 
                 Claimant performed no work of any kind for employer 
 
            after April 17, 1990 until July 15, 1991.  Therefore, it is 
 
            difficult to attribute one remark about shoulder and neck 
 
            pain on October 29, 1990 to this injury which occurred on 
 
            February 7, 1990.  It is equally as difficult to attribute 
 
            any shoulder, neck or back symptoms to claimant's employment 
 
            for this employer when she had not performed any work of any 
 
            kind for employer for over six months on October 29, 1990, 
 
            and when Dr. Neff had not provided any specific treatment of 
 
            any kind for shoulder, neck or back complaints during the 
 
            course of his treatment.  
 
            
 
                 Moreover, after the initial bilateral carpal tunnel 
 
            surgeries of Dr. Misol back on May 15, 1987, his notes show 
 
            that claimant had a recurrence of her hand falling asleep on 
 
            November 3, 1987 (Ex. 1, p. 12).  However, claimant 
 
            testified that she was "100 percent fine." after the first 
 
            surgeries by Dr. Misol (Tran. p. 118).
 
            
 
                 On January 8, 1988, claimant reported to Joshua 
 
            Kimelman, an associate of Dr. Misol, that she had back pain 
 
            without any specific history of injury or trauma.  It just 
 
            came on and had gotten worse.  It increased with activity.  
 
            Claimant also reported to Dr. Kimelman that she had 
 
            radiating pain into the left arm and shoulder with weakness 
 
            of the left wrist status post bilateral carpal tunnel 
 
            release by Dr. Misol.  Thus, claimant did have continued 
 
            problems from her hands and wrists and there is documented 
 
            evidence of shoulder and neck pain on January 8, 1988 (Ex. 
 
            1, p. 11). 
 
            
 
                 Claimant did not start to work for employer until April 
 
            25, 1988.
 
            
 
                 On January 8, 1988, when claimant first mentioned head, 
 
            neck and shoulder she was employed by Hawkeye Security (Ex. 
 
            4, p. 148).
 
            
 
                 Dr. Kimelman said she denied depression or other 
 
            problems but he found some transverse scars on her wrists 
 
            secondary to a suicide attempt previously.  He also 
 
            mentioned that she had had a hysterectomy secondary to 
 
            recurrent infections status post being raped.  He noted that 
 
            claimant was 5 foot 4 inches tall and weighed 100 pounds.  
 
            With respect to thoracic problems, Dr. Kimelman noted on 
 
            January 8, 1988, that claimant had a right rib prominence 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            probably indicative of mild right thoracic curve (Ex. 1, p. 
 
            11).  Thus, there are early indications of both left arm and 
 
            shoulder pain as well as a thoracic abnormality prior to 
 
            claimant's employment by employer.  Dr. Kimelman diagnosed 
 
            chronic back pain, etiology unknown.  He took an x-ray of 
 
            the left wrist because of continued complaint of pain and 
 
            this was within normal limits (Ex. 1, p. 10).
 
            
 
                 On February 19, 1988, Dr. Kimelman reported that 
 
            claimant continued to have back pain but that her most 
 
            pressing problem was headache, neck ache and tingling and 
 
            numbness and going to sleep of both hands.  He said this has 
 
            been a continued problem since her prior carpal tunnel 
 
            releases.  Claimant was still working for Hawkeye Security 
 
            at this time.  He referred claimant to see Michael J. Stein, 
 
            D.O., a neurologist.  
 
            
 
                 Dr. Stein saw claimant on February 25, 1988.  Dr. Stein 
 
            reported that claimant told him that she has had headaches 
 
            which last from 24 to 48 hours since she was a child.  These 
 
            are frequently associated with photophobia, phonophobia, 
 
            nausea and vomiting and that she has to lie down when the 
 
            headaches occur.  Dr. Stein said she had a family history of 
 
            headaches, which she thought were the migraine type.  At the 
 
            time of this examination by Dr. Stein they had persisted for 
 
            approximately three or four months.  She also complained of 
 
            carpal tunnel symptoms which had persisted since her 
 
            surgeries by Dr. Misol in 1987.  He noted that the surgery 
 
            did not relieve her symptoms.  Dr. Stein said claimant also 
 
            complained of low back pain over the last several months 
 
            without definite radiation.  
 
            
 
                 Dr. Stein noted that claimant had received several 
 
            surgeries (1) bilateral carpal tunnel surgery, (2) 
 
            hysterectomy, (3) gall bladder surgery, (4) plastic surgery 
 
            on her nose in 1978 and (5) three laparoseopies.  Dr. Stein 
 
            noted that claimant had a loss of facial expression and 
 
            appeared to be depressed.  He did not see any muscle wasting 
 
            over her extremities nor the shoulders and neck.  Dr. Stein 
 
            concluded with this clinical impression:
 
            
 
                    This young lady has, I feel, a migraine 
 
                 cephalgia along with occipital neuralgia.  I can't 
 
                 help but wonder whether there is some sort of a 
 
                 tension stress component here although she denies 
 
                 it presently to me (Ex. 1, p. 101).
 
            
 
                 An EMG was attempted on March 28, 1988 and Dr. Stein 
 
            recorded that the EMG needle portion had to be stopped 
 
            because claimant could not tolerate it.  Median nerve 
 
            conductions were normal.  Her headaches still persisted (Ex. 
 
            1, p. 102).
 
            
 
                 At another point in her testimony, claimant's testimony 
 
            on whether Dr. Misol's 1987 bilateral carpal tunnel 
 
            surgeries relieved her symptoms was equivocal.  First she 
 
            said she did not remember if the symptoms were relieved or 
 
            not.  Then she stated that she went back to work and had no 
 
            problems.  Then she stated yes, it did relieve the symptoms 
 
            (Tran. p. 122).
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Thus, it can be seen from the foregoing evidence that 
 
            claimant has suffered from headaches, neck pain and back 
 
            pain for a long time prior to February 7, 1990, which began 
 
            prior to the date of her employment for employer on April 
 
            25, 1988, with many of her complaints, dating back to 
 
            childhood.
 
            
 
                 Therefore, it is determined that the injury of February 
 
            7, 1990, was not the cause of claimant's shoulder, neck and 
 
            back complaints first voiced in the medical records on 
 
            October 29, 1990 to Dr. Neff, some six months after she had 
 
            not performed any work for employer.  Claimant made no 
 
            mention of shoulder, neck or back complaints to Dr. 
 
            Grundberg or Dr. Misol of any kind.  She did not mention 
 
            anything to Dr. Neff until eight months after the injury 
 
            date and six months after she had been taken off work.  Even 
 
            then, Dr. Neff made no specific diagnosis and performed no 
 
            specific treatment for the shoulder or neck pain.  He only 
 
            mentions it as a passing remark in his notes.  
 
            
 
                 These first complaints of shoulder, neck and back pain 
 
            in October of 1990 are too remote in time to be causally 
 
            connected with this injury of February 7, 1990, with 
 
            symptoms that first appeared in November of 1989.  Nor can 
 
            it be said they were aggravated by her employment for 
 
            employer.  The medical evidence demonstrates that shoulder, 
 
            neck and back pains have been a common complaint of claimant 
 
            for many years preceding this injury.
 
            
 
                 Dr. Smith first saw claimant on December 11, 1990 at 
 
            the request of Dr. Neff (Ex. 1, pp. 71, 74 & 57).  Dr. Smith 
 
            did not believe that claimant had thoracic outlet syndrome 
 
            at that time and he recommended that Dr. Neff go ahead with 
 
            the right carpal tunnel surgeries.  At the same time he 
 
            acknowledged that Dr. Grundberg had found that there was a 
 
            high likelihood of recurrence even if claimant had the 
 
            surgeries.
 
            
 
                 Dr. Smith's letter of December 11, 1990, to the 
 
            insurance carrier contains a serious error.  He stated that, 
 
            "In December and January of last year she developed pain in 
 
            both arms, hands, shoulders, and neck which has been 
 
            progressive." (Ex. 1, p. 57).  This history totally 
 
            conflicts with the actual records of Dr. Grundberg, Dr. 
 
            Misol and Dr. Neff summarized above that show that claimant 
 
            did not develop pain in her neck and shoulders in December 
 
            of 1989 and January of 1990, save that the pain was 
 
            progressive.
 
            
 
                 On May 24, 1991, Dr. Smith wrote that, "Her findings 
 
            again are not classic for thoracic outlet syndrome, and 
 
            therefore I believe it would be in her best interest to seek 
 
            an alternate explanation." (Ex. 1, pp. 55 & 56).  However, 
 
            he recommended plain films and an MRI of her neck.  
 
            
 
                 On June 14, 1991, Dr. Smith stated that the cervical 
 
            spine film was unremarkable and the MRI showed no gross 
 
            abnormalities.  He said that claimant had no benefit from 
 
            the scalene injection on her prior visit and it was not 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            repeated.  Dr. Smith remarked that claimant had many 
 
            findings consistent with thoracic outlet syndrome, however, 
 
            he said she would not benefit from an operation for thoracic 
 
            outlet syndrome.  He said that he planned to treat her 
 
            nonoperatively like a thoracic outlet syndrome which was 
 
            bilateral.  He said that claimant could return to work with 
 
            restrictions of 20 pounds lifting, no repetitive work and no 
 
            work with her arms elevated up high (Ex. 1, p. 54).  On July 
 
            10, 1991, he changed his restrictions to 15 pounds lifting, 
 
            no repetitive work and that her right arm was to be kept 
 
            (immobilized) at her side.  He said these are permanent 
 
            restrictions (Ex. 1, p. 52).  On a return to work slip also 
 
            dated July 10, 1991, he said the lifting restriction was 10 
 
            pounds (Ex. 1, p. 60).
 
            
 
                 It should be noted that these restrictions were because 
 
            of shoulder, neck and back pain and not due to the bilateral 
 
            carpal and cubital tunnel.
 
            
 
                 When claimant returned to work on July 15, 1991, the 
 
            receptionist job had added the duties of microfilming, 
 
            faxing, filing and picking up express mail (Tran. pp. 73-77, 
 
            112 & 113).  A few of the jobs, such as mail handling, 
 
            inspection reports and stamping had been eliminated (Tran. 
 
            p. 113).  The work was within the restrictions imposed by 
 
            Dr. Smith and claimant's pay had been increased both during 
 
            her absence and again when she had returned to work (Tran. 
 
            p. 113).  Employer made accommodations in her work station 
 
            to attempt to make her comfortable (Tran. p. 78).  
 
            Nevertheless, claimant testified that she was miserable, she 
 
            was in a lot of pain, and she could not concentrate (Tran. 
 
            pp. 79 & 80).  She said there was a lot of mistakes in her 
 
            work (Tran. pp. 80 & 82.
 
            
 
                 On August 7, 1991, Dr. Smith gave claimant another 
 
            scalene injection which made her worse.  Dr. Smith appeared 
 
            to be puzzled.  On August 7, 1991, he wrote, 
 
            
 
                    Mrs. Benefiel's symptoms, history, and physical 
 
                 exam all appear to be consistent with thoracic 
 
                 outlet syndrome on the right side.  I am concerned 
 
                 about an exaggerated response to pain and the 
 
                 failure of the scalene block to improve her 
 
                 symptoms.  This is not a typical finding.  She may 
 
                 have the diagnosis; however, she may be 
 
                 malingering or she may have an alternate 
 
                 diagnosis.  Since her symptoms have worsened, I 
 
                 recommended she avoid work for two to four weeks 
 
                 (Ex. 1, p. 51).  
 
            
 
                 On September 9, 1991, Dr. Smith ordered that claimant 
 
            only work half-time but that she could work without her 
 
            shoulder immobilizer (Ex. 1, p. 62).
 
            
 
                 On September 20, 1991, claimant was terminated for 
 
            making too many mistakes in her work (Tran. pp. 82, 83, 86 & 
 
            114).  The testimony of Marsha Ray, manager, and the 
 
            personnel records establish that claimant did commit more 
 
            than the allowed number of significant mistakes (Ex. 4, pp. 
 
            168-174).  Likewise, the personnel records, as well as the 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            testimony of Ray and Doug Hanselman, the vocational 
 
            rehabilitation specialist, demonstrate that defendants did 
 
            make a sincere attempt to accommodate claimant's physical 
 
            problems (Ex. 4, pp. 156-167).
 
            
 
                 Other evidence shows that claimant was less than a 
 
            model employee due to a number of work interruptions due to 
 
            family problem in her life at this time.
 
            
 
                 Claimant was examined by Thomas W. Bower, L.P.T., on 
 
            May 1, 1991 for an evaluation in terms of permanent 
 
            impairment.  Repeat conduction studies were performed on 
 
            both the left and right upper extremities.  Mr. Bower 
 
            stated, "... Nerve conduction studies of the left and right 
 
            upper extremities demonstrate normal findings for all the 
 
            nerves tested, both in the left and right upper extremities.  
 
            Therefore, we find no persistent demyelinating changes that 
 
            are occurring." (Ex. 1, p. 106M).  Mr. Bower concluded, 
 
            "Therefore, in conclusion, I find that the patient has 
 
            sustained no impairment on the basis of the median and ulnar 
 
            nerve problems at the present time." (Ex. 1, p. 106N).
 
            
 
                 This latest finding revoked an earlier determination of 
 
            Mr. Bower that claimant had sustained a 2 percent impairment 
 
            of the left hand due to left median palmar latency (Ex. 1, 
 
            p. 106Q).  
 
            
 
                 Mr. Bower explained in his deposition given on October 
 
            21, 1993, that it was not unusual to repeat a study and find 
 
            normal results after a period of time had gone by (Ex. 7, p. 
 
            7).  Mr. Bower testified that he did not place any 
 
            restrictions on claimant's future work activity (Ex. 7, p. 
 
            9).  Mr. Bower added that typically a person with thoracic 
 
            outlet is going to experience tingling paresthesia in their 
 
            hands when they are above shoulder height.  However, he 
 
            noticed that claimant was experiencing these symptoms with 
 
            her hands down at her side (Ex. 7, p. 8 & 14).  
 
            
 
                 There is no evidence that claimant requested or 
 
            obtained an independent medical examination that would 
 
            controvert, contradict, rebut or refute Mr. Bower's 
 
            evaluation of no permanent impairment.  
 
            
 
                 Claimant found employment on October 8, 1991, with 
 
            Burger King and performed several repetitive jobs with her 
 
            hands and arms.  Claimant admitted that her employment with 
 
            Burger King required the repetitive use of her hands and 
 
            arms (Tran. pp. 86-93, 105 & 106).  The Burger King work 
 
            also involved lifting anywhere from a few pounds to 50 
 
            pounds (Tran. pp. 106-109).  Her primary employment for 
 
            Burger King was preparing food for breakfasts and lunches 
 
            (Tran. pp. 109 & 110).  Claimant worked for Burger King for 
 
            approximately two years.  
 
            
 
                 On August 23, 1993, claimant began working for DZ 
 
            Manufacturing performing repetitive work with her hands and 
 
            arms.  This was production assembly line type of work 
 
            packaging and labeling bug shields and contours with 
 
            mandatory overtime (Tran. pp. 94-97 & 102).  Claimant 
 
            admitted that this job requires repetitive use of her hands, 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            wrists and shoulders and that she is able to concentrate on 
 
            the job (Tran. p. 103).  Claimant had lost no time from work 
 
            since beginning this employment and was just a few days away 
 
            from completing her first 90 days at which time she would be 
 
            eligible for employee benefits.
 
            
 
                 Claimant was not receiving medical treatment at the 
 
            time of the hearing (Tran. p. 114).
 
            
 
                 Claimant voiced several complaints of pain and 
 
            disability at the time of the hearing but most of them both 
 
            predated and postdated this injury of February 7, 1990.  
 
            They are chronic in nature.  It cannot be said that these 
 
            apparently chronic conditions were aggravated by this injury 
 
            for the reason that the shoulder, neck and head complaints 
 
            did not recur until about one-half a year or more after 
 
            claimant discontinued hand and arm work with employer when 
 
            she was off work from April 17, 1990 to July 15, 1991 (Tran. 
 
            pp. 98-124).
 
            
 
                 It is determined that claimant did not establish that 
 
            this injury of February 7, 1990 was the cause of thoracic 
 
            outlet syndrome nor was it the cause of myofascial pain 
 
            syndrome nor was it the cause of a chronic pain syndrome.  
 
            
 
                 At the request of Dr. Smith, claimant was examined by 
 
            Todd C. Troll, M.D., a physical medicine and rehabilitation 
 
            doctor, on September 16, 1991 (Ex. 1, p. 70).  His 
 
            impression was chronic bilateral upper extremity and neck 
 
            pain.  He found that her neck pain was diffuse and her upper 
 
            extremities were sensitive to any touch.  Dr. Troll 
 
            concluded, "I feel the patient has chronic pain syndrome.  I 
 
            do not think that she has thoracic outlet syndrome." (Ex. 1, 
 
            p. 86).  Dr. Troll did not attribute this chronic pain 
 
            syndrome to this injury.  Nor did Dr. Troll find any 
 
            physical basis for it (Ex. 1, pp. 85 & 87).
 
            
 
                 Claimant was also examined by Dana Simon, M.D., at the 
 
            Mercy Hospital Nerve Block Center.  Dr. Simon did not 
 
            believe that claimant had thoracic outlet syndrome because 
 
            claimant did not respond to scalene injections and the MRI 
 
            of the cervical spine was unremarkable.  Dr. Simon related 
 
            that claimant had a history of intolerance for aspirin and 
 
            Tylenol because her stomach was denuded.  A prior 
 
            gastroscopy was recommended by her personal physician.  He 
 
            said claimant previously weighed 35 pounds but was up to 
 
            107.7 pounds but looks rather gaunt, if not thin (Ex. 1, p. 
 
            92).  Dr. Simon said that claimant was suffering from a 
 
            constitutional problem that he more specifically defined as 
 
            a chronic pain syndrome.  He testified that claimant was out 
 
            of a job, but other evidence indicates that claimant was 
 
            working at Burger King at this time.  
 
            
 
                 Dr. Simon did not say that any of claimant's problems 
 
            were caused by the injury of February 7, 1990.  Nor did he 
 
            say that they were caused by the carpal tunnel syndrome of 
 
            February 7, 1990.  Dr. Simon said claimant had 
 
            constitutional problems rather than specific problems in her 
 
            neck and shoulders.  He recommended extensive physical 
 
            therapy.  He said there was no derangement in either her 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            muscles or bones that would prevent her from performing 
 
            extensive physical therapy such as water therapy or hydro 
 
            therapy.  He recommended against injections because they 
 
            could aggravate her problem.  Furthermore, he found no 
 
            active trigger points that could be injected.  
 
            
 
                 Claimant returned to see Dr. Simon on December 30, 1991 
 
            and he stated, "Once again, I do not find anything 
 
            significant in terms of reflex sympathetic dystrophy or 
 
            myofascial pain in the past exam.  ... It is not felt, 
 
            generally speaking, that she has thoracic outlet syndrome as 
 
            I mentioned above." (Ex. 1, pp. 91-95).  Thus, Dr. Simon did 
 
            not causally relate any of claimant's problems to the injury 
 
            of February 7, 1990, or to the carpal tunnel syndrome that 
 
            was stipulated to have occurred on that date.  
 
            
 
                 Dr. Smith sent claimant to see Lawrence J. Rettenmaier, 
 
            M.D., a rheumatologist.  Dr. Rettenmaier saw claimant on 
 
            April 7, 1992, November 10, 1992 and wrote a letter on 
 
            September 14, 1993.  On April 7, 1992, Dr. Rettenmaier said 
 
            that claimant had a full range of motion of the cervical 
 
            spine and shoulders, albeit some discomfort.  He did not 
 
            find rheumatism, arthritis or thoracic outlet syndrome.  
 
            Rather he recommended a chronic pain management program 
 
            which would not heal her, but would help her to live with 
 
            the pain.  He did not believe that she had reflex 
 
            sympathetic dystrophy or Raynaud's disease.  
 
            
 
                 Dr. Rettenmaier commented that it was work-related but 
 
            he did not say what work caused it.  Claimant was working 
 
            for Burger King at the time of his examination and had been 
 
            working there for approximately six months prior to his 
 
            examination.  She had also worked for Happy Chef, Hotel Fort 
 
            Des Moines and Hawkeye Security in the recent past.  On his 
 
            April 7, 1992 report he said her current symptom complex 
 
            began sometime around April of 1988.  However, this date 
 
            precedes this injury of February 7, 1990 by a period of two 
 
            years.  
 
            
 
                 When claimant saw Dr. Rettenmaier on November 10, 1992, 
 
            he found she had no significant change in her symptoms.  He 
 
            corrected his previous report by stating that her condition 
 
            became more constant and developed around 1990 rather than 
 
            April of 1988.  He noted that claimant had a full range of 
 
            motion of the cervical spine and her shoulders.  His 
 
            impression was complex of diffuse upper extremity pain and 
 
            dysesthesias (Ex. 1, p. 77).  Dr. Rettenmaier said, "... my 
 
            current diagnosis would includes [sic] possible thoracic 
 
            outlet bilateral, as well as elements of chronic pain 
 
            syndrome." (Ex. 1, p. 78).  
 
            
 
                 Dr. Rettenmaier said that the diagnosis of thoracic 
 
            outlet syndrome was a very controversial one.  Again, he 
 
            said it was related to repetitive activities at work but he 
 
            did not say what work he was referring to.  Claimant was 
 
            still performing the repetitive hand and arm work at Burger 
 
            King at the time of his evaluation and had been employed 
 
            there for over a year at this time.  He thought that 
 
            thoracic outlet syndrome surgery would be risky and 
 
            unpredictable and that it might not be in her best interest.  
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            He said that he has not been doing impairment ratings but 
 
            referred them to a physiatrist (Ex. 1, pp. 76-79).
 
            
 
                 On April 7, 1992, Dr. Rettenmaier stated, "I certainly 
 
            do not consider myself experienced or an expert in thoracic 
 
            outlet." (Ex. 1, p. 82).
 
            
 
                 On September 14, 1993, Dr. Rettenmaier wrote to 
 
            claimant's attorney that he did not believe that claimant 
 
            had a classic thoracic outlet but there was an element of 
 
            chronic pain and he would diagnosis that.  He stated that he 
 
            was not seeing claimant in 1987 and 1988 and that he could 
 
            not make an accurate assessment of whether this condition 
 
            was similar in origin to her condition at that time or not 
 
            (Ex. 1, p. 75).
 
            
 
                 On March 18, 1992, Dr. Smith changed his diagnosis to 
 
            thoracic outlet syndrome.  This was after he had been seeing 
 
            her for over a year and this diagnosis was contrary to Dr. 
 
            Troll, Dr. Simon and Dr. Rettenmaier that he referred her 
 
            to.
 
            
 
                 On April 15, 1992, he noted that claimant had what 
 
            appeared to be a histrionic personality and that surgical 
 
            intervention for thoracic outlet syndrome might not be in 
 
            her best interest at that time.  He further noted that 
 
            claimant failed to respond to the scalene block and that she 
 
            did not want thoracic outlet surgery.  Later on June 15, 
 
            1992 and July 29, 1992, Dr. Smith said claimant did get 
 
            relief from scalene injections.  On January 16, 1992, he 
 
            told Job Service of Iowa that claimant had bilateral 
 
            thoracic outlet syndrome from January of 1990 until January 
 
            of 1992 (Ex. 1, p. 61).  
 
            
 
                 On May 20, 1992, Dr. Smith said claimant had an overlap 
 
            of thoracic outlet syndrome and chronic pain syndrome.  He 
 
            said that the onset of pain began when she was working for 
 
            employer and therefore he believed that her complaints were 
 
            work-related.  This is a repeat of his earlier erroneous 
 
            history.  The medical records show that claimant had 
 
            shoulder, neck and back symptoms along with her upper 
 
            extremities complaints as far back as 1988 with Dr. 
 
            Kimelman.  A causal connection opinion based upon erroneous 
 
            facts is not a reliable statement of causal connection.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
            (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 
 
            607 (1945).
 
            
 
                 On June 17, 1992, Dr. Smith continued to think that 
 
            claimant's symptoms were consistent with thoracic outlet 
 
            syndrome.  However, he recommended against surgery because 
 
            of her attitude and a certain amount of anger (Ex. 1, pp. 45 
 
            & 46).
 
            
 
                 On December 30, 1992, Dr. Smith said that for 
 
            medicolegal reasons his malpractice carrier requested, as of 
 
            October of 1992, that he discontinue this high risk surgery.  
 
            Therefore, he asked that claimant be evaluated by Douglas W. 
 
            Massop, M.D., a vascular surgeon (Ex. 8, p. 9 & 29).
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 Claimant saw Dr. Massop on January 8, 1993, for 
 
            evaluation of thoracic outlet syndrome.  He gave a very 
 
            definitive report to Dr. Smith in which he stated, 
 
            
 
                    As you know, she represents a challenging 
 
                 history.  The diffuse numbness is somewhat 
 
                 nondescript.  It appears to involve mainly the 
 
                 shoulder girdle area.  She has no objective or 
 
                 subjective evidence of weakness.  On further exam, 
 
                 I find no evidence of objective compression of the 
 
                 thoracic outlet.  That is to say, Adson's 
 
                 maneuvers and Roos' maneuvers are normal, and 
 
                 there is no obliteration of the radial pulse on 
 
                 either side.
 
            
 
                    After discussion with you and finding out that 
 
                 the MRI of her cervical spine, the EMG's, and 
 
                 plain films are all normal, I am somewhat 
 
                 reluctant to attempt an operative procedure on 
 
                 this young lady.
 
            
 
                    I am somewhat uncertain as to what her 
 
                 diagnosis at this time is.  However, I do not feel 
 
                 that she suffers from significant thoracic outlet 
 
                 syndrome, and therefore, should not be operated on 
 
                 (Ex. 1, p. 106).
 
            
 
                 Dr. Massop was equally as unequivocal in an office note 
 
            dated January 28, 1993, 
 
            
 
                    1/28/93:  I called Roxanne today at work and 
 
                 discussed findings of results obtained from Dr. C. 
 
                 David Smith.  I feel that she would not benefit 
 
                 from a thoracic outlet type procedure.  Her 
 
                 symptoms are quite vague, and the numbness that 
 
                 she experiences is not particularly classic for 
 
                 thoracic compression.  Adson's maneuver 
 
                 demonstrates no obliteration of the pulse.  There 
 
                 is some tingling associated with provocative 
 
                 maneuvers.  However, no specific findings are 
 
                 present.  Her EMG was entirely normal.  F-wave 
 
                 studies, I am told, are normal.  I have asked her 
 
                 to follow up with Dr. Smith if further questions 
 
                 arise.  DWM (Ex. 106T).
 
            
 
                 On February 1, 1993, Dr. Smith wrote to claimant as 
 
            follows, 
 
            
 
                    I received a letter from Doctor Massop dated 
 
                 January 8 after your visit with him.  It did not 
 
                 surprise me to learn that he was unwilling to 
 
                 operate on you and that he did not feel you had 
 
                 thoracic outlet syndrome.  I have told you in the 
 
                 past that your diagnosis fits criteria minimally.  
 
                 The criteria I use I don't believe he employs (Ex. 
 
                 1, p. 43).  
 
            
 
                 Dr. Smith gave a deposition on November 12, 1993, just 
 
            a few days prior to hearing (Ex. 8, p. 5).  At that time he 
 
            said that claimant had either thoracic outlet syndrome or 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            chronic pain syndrome but he could not determine which one 
 
            (Ex. 8, p. 5).  He said that thoracic outlet syndrome 
 
            typically would follow an automobile accident and that since 
 
            claimant did not have an automobile accident he wondered if 
 
            it was not myofascial pain syndrome or chronic pain syndrome 
 
            (Ex. 8, p. 6).  
 
            
 
                 Dr. Smith agreed with defense counsel that he did not 
 
            document any loss of range of motion in claimant's neck 
 
            until September of 1991 (Ex. 8, p. 16).  He further admitted 
 
            that claimant's symptoms did not meet the clinical criteria 
 
            for thoracic outlet syndrome (Ex. 8, p. 17).  He admitted 
 
            that he did not detect any thoracic outlet syndrome 
 
            complaints until June of 1991 (Ex. 8, pp. 21-23).  Dr. Smith 
 
            further admitted that in August of 1991 he said that 
 
            claimant may have thoracic outlet syndrome, or she may be 
 
            malingering, or she may have an alternate diagnosis (Ex. 8, 
 
            p. 23).
 
            
 
                 Dr. Smith said the condition appeared to be related to 
 
            employment with employer (Ex. 8, p. 6).  However, he 
 
            admitted he had no idea of what she was doing at the time 
 
            the symptoms began at her place of employment.  
 
            
 
                 Dr. Smith said he first considered myofascial pain 
 
            syndrome in February of 1992 (Ex. 8, p. 24).  However, he 
 
            admitted that he did not know what activities claimant was 
 
            involved in at that time.  Dr. Smith admitted that he did 
 
            not hold himself out as an expert in myofascial pain 
 
            syndrome or chronic pain syndrome (Ex. 8, p. 28).  
 
            
 
                 Thus, in the final analysis it can be seen that Dr. 
 
            Smith went from (1) a determination that claimant did not 
 
            have thoracic outlet syndrome, to (2) a determination that 
 
            claimant did have thoracic outlet syndrome, to (3) a 
 
            determination that claimant had either thoracic outlet 
 
            syndrome or chronic pain syndrome, but he did not know which 
 
            one.  Several doctors said that claimant did not have 
 
            thoracic outlet syndrome.  Dr. Smith still was not sure at 
 
            the time of his deposition ten days prior to hearing.
 
            
 
                 Wherefore, based on the foregoing evidence, it is 
 
            further determined that the injury of February 7, 1990 was 
 
            not the cause of thoracic outlet syndrome.  None of the many 
 
            physicians could definitively state that claimant had 
 
            thoracic outlet syndrome.  Furthermore, none of the 
 
            physicians could state that her shoulder, neck and back 
 
            complaints were caused by her employment for this employer 
 
            on February 7, 1990, or any other date during her employment 
 
            for this employer.  
 
            
 
                 It is further determined that the injury of February 7, 
 
            1990 was not the cause of myofascial pain syndrome or 
 
            chronic pain syndrome.  Claimant suffered from chronic 
 
            shoulder, neck and back complaints and headaches both prior 
 
            to and subsequent to this injury.  None of the physicians 
 
            stated that the injury of February 7, 1990, while working 
 
            for this employer, was the cause of the chronic pain 
 
            syndrome or myofascial syndrome.  
 
            
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
                 Furthermore, based on the foregoing evidence, it is 
 
            determined that the injury of February 7, 1990, which caused 
 
            bilateral carpal tunnel syndrome and bilateral cubital 
 
            syndrome was not the cause of permanent disability.  Mr. 
 
            Bower determined that claimant did not sustain any permanent 
 
            impairment from her carpal tunnel and cubital tunnel 
 
            surgeries.  Mr. Bower's impairment rating is supported by 
 
            the fact that claimant has performed repetitive work with 
 
            her hands and arms since October of 1991 for Burger King and 
 
            now for DZ Manufacturing.
 
            
 
                 Therefore, in conclusion it is determined as a matter 
 
            of fact that the injury of February 7, 1990 was not the 
 
            cause of any permanent disability and therefore claimant is 
 
            not entitled to any permanent disability benefits.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that the injury of February 7, 
 
            1990 was the cause of permanent disability.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl 
 
            v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that the injury of February 7, 
 
            1990 was the cause of either thoracic outlet syndrome, 
 
            chronic pain syndrome or myofascial pain syndrome.  Bodish, 
 
            257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl, 236 Iowa 296 
 
            18 N.W.2d 607 (1945).
 
            
 
                 Based on the foregoing two conclusions of law the issue 
 
            of whether claimant is entitled to any permanent disability 
 
            benefits is moot. 
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That no money is owed by defendants to claimant.
 
            
 
                 That both parties are to bear their own costs of this 
 
            action, except that defendants are to pay for the attendance 
 
            of the court reporter at hearing and the transcript of 
 
            hearing.  Rule 343 IAC 4.33 and Iowa Code sections 86.19(1) 
 
            and 86.40.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency.
 
            
 
                 Signed and filed this ____ day of August, 1994.
 
            
 
            
 
            
 
            
 

 
            
 
            Page  16
 
            
 
            
 
                                          
 
                                          
 
                                          
 
                                          -----------------------------
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Channing L. Dutton
 
            Attorney at Law
 
            1200 35th Street, Suite 500
 
            West Des Moines, IA  50266
 
            
 
            Mr. Marvin E. Duckworth
 
            Ms. Tina M. Eick
 
            Attorneys at Law
 
            2700 Grand Ave., Suite 111
 
            Des Moines, IA  50312
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                       2901, 2902, 2906, 3700, 1401,
 
                                       1402.40, 1803, 2206, 2209, 
 
                                       Filed August 15, 1994
 
                                       Walter R. McManus, Jr.
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            ROXANNE BENEFIEL,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 948482
 
            PRINCIPAL MUTUAL LIFE    
 
            INSURANCE COMPANY,  
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            WAUSAU INSURANCE COMPANIES,
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            2901, 2902, 2906, 3700
 
            
 
                 The deputy excluded the deposition of claimant from 
 
            evidence on his own initiative for the reason that claimant 
 
            was present in the courtroom to testify on the points 
 
            relevant and material to the remaining issues at the time of 
 
            hearing.  The deposition could be used to refresh memory or 
 
            to impeach the credibility of the witness.
 
            
 
            1401, 1402.40, 1803, 2206, 2209
 
            
 
                 It was determined that the injury, bilateral carpal 
 
            tunnel and bilateral cubital tunnel was not the cause of 
 
            permanent impairment, even though claimant had right and 
 
            left carpal tunnel surgery and right cubital tunnel surgery.
 
            
 
                 Claimant did not prove that the injury was the cause of 
 
            thoracic outlet syndrome, chronic pain syndrome, myofascial 
 
            pain syndrome, reflex sympathy dystrophy, or Raynaud's 
 
            disease.
 
            
 
                 Claimant's shoulder, neck and back complaints preceded 
 
            this injury.  The recurrence of these symptoms did not recur 
 
            until claimant was off work and had performed no duties for 
 
            employer for over six months.  Likewise, it was determined 
 
            that this was not an aggravation of a preexisting condition.
 
            
 
                 The one doctor who called it a thoracic outlet syndrome 
 
            at one time vacillated back and forth and ended up saying it 
 
            was either thoracic outlet syndrome or chronic pain 
 
            syndrome, but he could not determine which one.  His opinion 
 
            was contrary to three specialists that he had referred 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            claimant to for an opinion on thoracic outlet syndrome one 
 
            of which was the final recognized TOS specialist.
 
            
 
                 The only impairment evaluator for the carpal tunnel and 
 
            cubital tunnel said there was no permanent impairment.  
 
            Claimant did not have an independent medical examination to 
 
            controvert or rebut this opinion.
 
            
 
                 The determination of no causal connection to permanent 
 
            disability made moot a determination of whether the injury 
 
            was to the hands, arms, or the body as a whole and 
 
            claimant's entitlement to permanent disability benefits.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LINDA SANDERSON,              :
 
                                          :
 
                 Claimant,                :      File Nos.  948568
 
                                          :                1013377
 
            vs.                           :
 
                                          :
 
            UNITED TECHNOLOGIES           :     A R B I T R A T I O N
 
            AUTOMOTIVES,                  :
 
                                          :       D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            PACIFIC EMPLOYERS INSURANCE,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 These are proceedings in arbitration upon the petition 
 
            of claimant, Linda Sanderson, against her employer, United 
 
            Technologies, and its insurance carrier, Pacific Employers 
 
            Insurance, defendants.  On June 2, 1993, a hearing 
 
            assignment order was filed which set these matters for a 
 
            primary hearing date on January 10, 1994 at noon, at the Des 
 
            Moines County Courthouse in Burlington, Iowa.
 
            
 
                 At the aforesaid time and place, the undersigned deputy 
 
            industrial commissioner appeared.  Also present were William 
 
            Bauer, attorney for claimant, and Harry Dahl, attorney for 
 
            defendants, and a representative of defendant-employer.  
 
            Claimant did not appear.
 
            
 
                 Attorney Bauer made a professional statement on the 
 
            record with respect to the efforts he had made to contact 
 
            his client.  He stated that:
 
            
 
                 1.  Claimant's last known address was listed as 210 
 
            Dallas Road, Carthage, Illinois 62321, but that to the best 
 
            of his knowledge, claimant had no telephone.
 
            
 
                 2.  Attorney Bauer listed the following dates as dates 
 
            when he had tried to reach claimant by letter:
 
            
 
                               January 6, 1994
 
                               December 27, 1993
 
                               December 10, 1993
 
                               December 3, 1993
 
                               October 18, 1993
 
                               September 14, 1993
 
            
 
                 3.  Attorney Bauer indicated the last time he had 
 
            communicated with claimant was in September or October of 
 
            1993.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                 No witnesses testified for either party.  Claimant's 
 
            attorney offered claimant's exhibits 1-5.  Defendants' 
 
            attorney offered exhibits A-D.  All of the above exhibits 
 
            were admitted as part of the official record.
 
            
 
                                      ISSUES
 
            
 
                 The issues to be determined are:
 
            
 
                 For file numbered 948568:  (knee claim)
 
            
 
                 1.  Whether there is a causal relationship between the 
 
            work injury on April 30, 1990 and any permanent disability; 
 
            and,
 
            
 
                 2.  Whether claimant is entitled to any permanent 
 
            partial disability benefits.
 
            
 
                 For file numbered 1013377:  (right upper extremity)
 
            
 
                 1.  Whether claimant sustained an injury which arose 
 
            out of and in the course of her employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and any temporary or permanent disability; 
 
            and,
 
            
 
                 3.  Whether claimant is entitled to any healing period 
 
            or permanent partial disability benefits.
 
            
 
                                FINDINGS OF FACTS
 
            
 
                 The undersigned deputy finds:
 
            
 
                 Claimant was employed by defendant employer when she 
 
            sustained a work-related injury on April 30, 1990.  Claimant 
 
            fell on the parking lot adjacent to her place of employment.  
 
            She received medical treatment from Robert Kemp, M.D.  Dr. 
 
            Kemp's records for the date of the work injury revealed:
 
            
 
                 This patient was seen because of a fall in the 
 
                 parking lot at work in which she fell and injured 
 
                 her right knee by direct contusion and also 
 
                 apparently some problems with slight twisting.  
 
                 However on examination her ligaments are intact.  
 
                 She has a contusion just interior to the patella 
 
                 and x-rays are negative.  So this appears to be 
 
                 primarily a contusive affair.  The patient will be 
 
                 treated with ice packs, 4 inch Ace bandages, 
 
                 crutches, rest.  I will see her in 2 days.  She 
 
                 will have to be off work, completely, and followed 
 
                 up accordingly.
 
            
 
                    FINAL DIAGNOSIS:  contusion of the right knee.
 
            
 
            (Exhibit 1-1).
 
            
 
                 Dr. Kemp ordered x-rays.  The x-rays were negative.  
 
            Dr. Kemp continued with follow-up care.  Physical therapy 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            was prescribed but eventually claimant was discharged from 
 
            the physical therapy department.  
 
            
 
                 In June of 1990, claimant sought a consultation from 
 
            Keith W. Riggins, M.D., an orthopedic surgeon.  In his 
 
            report of June 7, 1990, Dr. Riggins opined:
 
            
 
                    Linda Sanderson is interviewed and evaluated  
 
                 on June 7, 1990.  She reports a fall occurring on 
 
                 April 30, 1990 in the course of her employment, at 
 
                 which time she struck the anterior aspect of the 
 
                 knee against a hard surface.  She has noted 
 
                 persistent discomfort in the anterior and 
 
                 posterior aspects of the knee, particularly 
 
                 associated with prolonged standing.  No true 
 
                 episodes of locking or giving way are related.
 
            
 
                    Examination of the right knee demonstrates 
 
                 range of motion to be full and complete.  No 
 
                 effusion is present.  No clinical laxity is 
 
                 apparent.  Tenderness is apparent over the 
 
                 patellar articular surface and anterior 
 
                 retinacular structures.
 
            
 
                    Previous x-ray examinations are reviewed and 
 
                 are within normal limits.
 
            
 
                    MRI of the knee is reviewed and demonstrated 
 
                 grade 1 changes within the substance of the 
 
                 meniscus which are not felt to be of clinical 
 
                 significance.
 
            
 
                    Diagnosis:  Traumatic patellar chondromalacia, 
 
                 code 717.7.
 
            
 
                    Recommendation:  The patient is counseled 
 
                 regarding the nature of that condition.  She may 
 
                 continue to work but should abstain from 
 
                 prolonged, standing, walking, kneeling or 
 
                 squatting.  She is provided a prescription for 
 
                 Feldene, 20 mgs. daily, and counseled regarding 
 
                 its use and is to return for re-examination in ten 
 
                 days.  If no improvement is noted on Feldene, MRI 
 
                 with trans-axial cuts through the patella to 
 
                 evaluate for possible sub-condylar fracture 
 
                 patella will be obtained.
 
            
 
            (Exhibit 2-1).
 
            
 
                 Later Dr. Riggins opined in his report of July 2, 1990:
 
            
 
                    Recommendation:  I am unable to definitively 
 
                 identify a pathologic condition responsible for 
 
                 Mrs. Sanderson's  discomfort, and must therefore, 
 
                 presume that it is persistent tendonitis secondary 
 
                 to contusion.  It is recommended she not engage in 
 
                 activities which require squatting or kneeling on 
 
                 a permanent basis.  No return visits are required.
 
            
 
            (Exhibit 2-4).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
                 In August of 1990, Dr. Riggins authored a final report 
 
            regarding claimant's condition.  He opined:
 
            
 
                    As of Ms. Sanderson's last visit to the office 
 
                 on July 2, 1990 I was unable to identify the 
 
                 presence of a rateable condition within her right 
 
                 lower extremity.  It is recommended that if she 
 
                 remains symptomatic at this time, she be returned 
 
                 for re-examination.
 
            
 
            (Exhibit 2-5).
 
            
 
                 On September 4, 1990, claimant sought treatment from 
 
            Werner F. Schoenherr, M.D.  Claimant complained of symptoms 
 
            which were consistent with symptoms of a right carpal tunnel 
 
            syndrome.  (Exhibit 3-2)   Dr. Schoenherr referred claimant 
 
            to Walid Hafez, M.D., a neurologist.  However, claimant did 
 
            not keep an appointment she had with him. 
 
            
 
                 The evidence indicates that claimant sustained an 
 
            injury to her left wrist on April 2, 1990.  Throughout the 
 
            course of the month, claimant received medical treatment 
 
            from Dennis Coventon, D.O.  Dr. Coventon diagnosed 
 
            claimant's condition as "Sprain L wrist pulled muscles". The 
 
            physician also indicated the injury was not related to 
 
            claimant's employment.  (Exhibit B-3)
 
            
 
                 In her answers to interrogatories, which claimant 
 
            completed on April 5, 1993, she answered under oath the 
 
            following in reply to interrogatory number 13:
 
            
 
                    ANSWER:  On August 8, 1990, I injured my right 
 
                 arm while working for United Technologies 
 
                 Automotive through repetitive use.  The Industrial 
 
                 Commissioner's claim number is 1013377 and is 
 
                 currently pending.  See the answers to 
 
                 interrogatories produced in that file for further 
 
                 answer.
 
            
 
            (Exhibit C)
 
            
 
                 In separate answers to interrogatories which claimant 
 
            also completed on April 5, 1993, claimant wrote in reply to 
 
            interrogatory number 17 that:
 
            
 
                    ANSWER:  There were no witnesses because my 
 
                 injury is a cumulative injury.  However, two other 
 
                 women who worked the same job as I did suffered 
 
                 from carpal tunnel also.  The name of these women 
 
                 are Marilyn Davis of Keokuk, and Carol Simpson of 
 
                 Keokuk, Iowa.  
 
            
 
            (Exhibit D)
 
            
 
                 On April 30, 1991, claimant completed a form, entitled, 
 
            Statement of Claim, Group Accident & Sickness.  On the face 
 
            of the application form, claimant indicated that she had 
 
            sustained a non-occupational injury.  According to 
 
            claimant's form, she "had flu became dizzy fell against sink 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            on wrist."  Claimant indicated the non-work injury occurred 
 
            on April 30, 1991.
 
            
 
                 Claimant's attorney, in anticipation of a hearing on 
 
            these matters, then referred claimant to Robert P. Randolph, 
 
            M.D.  Dr. Randolph examined claimant on June 5, 1991.  His 
 
            office notes for that date indicated in relevant portion:
 
            
 
                 The third orthopaedic problem has resulted in the 
 
                 pt being off work for the past 6 weeks.  She fell 
 
                 onto her right hand and was thought at one point 
 
                 apparently, to have had a fx of one of the carpal 
 
                 bones, presumeably [sic] the navicular or scaphoid 
 
                 bone.  A bone scan was performed and apparently, 
 
                 according to the pt's hx, no pathologic findings 
 
                 were noted.  It was for this injury that the pt 
 
                 has been off work, but she apparently prior to 
 
                 that had been working in some capacity throughout 
 
                 the course of her problem with the right knee.  In 
 
                 fact, dating back essentially to her original 
 
                 injury.  The pt is 180#, 5'2" tall and again, her 
 
                 pain and crepitance is localized to the right 
 
                 knee, but more appropriately localized to the 
 
                 lateral ligamentus complex and iliotibial band 
 
                 above the joint line, not specifically pointing in 
 
                 the direction of significant internal derangement.
 
            
 
                   E:  Pt's right lower extremity exam included 
 
                 exam of the knee where she found to have a 
 
                 slightly increased Q angle and somewhat increased 
 
                 mobility with passive medial and lateral 
 
                 subluxation of the patella, but no patellofemoral 
 
                 compression tenderness.  She had mild tenderness 
 
                 to joint line laterally and superiorly along the 
 
                 iliotibial tract, not specifically at G____ 
 
                 tubricle.  Knee ROM wsa [sic] from full extension 
 
                 to 125o of flexion.  She had no medial joint line 
 
                 tenderness.
 
            
 
                   There was no crepitance, locking and stable knee 
 
                 ligaments were noted with various and valgus 
 
                 stress testing in extension and 30o of flexion as 
 
                 well as with anterior drawer and Lachiman test.
 
            
 
                   ....
 
            
 
                   Given the fact that the pt's diagnostic studies 
 
                 including radiographs, MRI and ED studies and bone 
 
                 scan were all not presented for review, it would 
 
                 [be] inappropriate to make a final determination 
 
                 as to my assessment to the pt's etiology for her 
 
                 right knee pain.  In all likelihood, the pt's 
 
                 symptomatic right wrist is secondary to carpal 
 
                 tunnel syndrome, however, much improved and 
 
                 certainly on the basis of her clinical 
 
                 presentation at this time, not warranting 
 
                 additional tx including surgical release of the 
 
                 volar carpal ligament.
 
            
 
                   In my view, based on purely the hx and exam 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 findings today, the pt's right knee pain is not 
 
                 clearly intra-articular, but rather more strongly 
 
                 suggestive of a tendinitis in the lateral capsular 
 
                 structures, secondary restraints including 
 
                 iliotibial band.  She did not have any presenting 
 
                 signs or symptoms that would be strongly 
 
                 suggestive of a torn meniscus or ligamentus damage 
 
                 to the knee.  The pt, by way of further hx, 
 
                 suggested that she may have had some degenerative 
 
                 change noted radiographically, and certainly may 
 
                 be some pathologic findings with respect to the 
 
                 articular cartilage and meniscal structures within 
 
                 the knee that might warrant surgical intervention, 
 
                 specifically arthroscopic surgery.  Arthroscopic 
 
                 surgery was discussed, but not specifically as a 
 
                 therapeutic procedure, but given the pt's lengthy 
 
                 saga of pain, arthoscopic surgery certainly would 
 
                 add a dimention [sic] of additional diagnostic 
 
                 information and might be warranted on that basis.
 
            
 
            (Exhibit 4-1, 4-2)
 
            
 
                 Later Dr. Randolph wrote to claimant's attorney the 
 
            following report, dated, August 29, 1991:
 
            
 
                 It would appear that since her knee symptoms are 
 
                 related to an isolated traumatic episode that 
 
                 occurred on 040290, that this could legitimately 
 
                 be considered work related.  That injury, by 
 
                 history, having occurred at the work place.  In so 
 
                 far as she has developed carpal tunnel syndrome 
 
                 and her work situation involves repetitive use of 
 
                 the extremities, there may be a strong connection 
 
                 between work activities and the development of 
 
                 peripheral nerve entrapment neuropathies in the 
 
                 upper extremity as well .  On that basis, this 
 
                 problem, too, could be considered work related.
 
            
 
                 
 
            (Exhibit 4-3)
 
            
 
                 The record reveals that claimant was terminated from 
 
            her position with defendant on June 30, 1993 and after 
 
            claimant failed to report to work.  (Exhibit A)  Claimant 
 
            had sought subsequent employment but whether she had 
 
            obtained employment of any kind is unknown to this deputy.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            of" refer to the time, place and circumstance of the injury.  
 
            Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure 
 
            v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant also has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, 215 N.W.2d 296 (Iowa 
 
            1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W. 2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  
 
            
 
                 With respect to the alleged right upper extremity 
 
            condition, claimant has failed to meet the requisite burden 
 
            of proof which is required of every claimant who alleges she 
 
            has sustained a work-related injury.  Claimant is required 
 
            to prove that her injury arose out of and in the course of 
 
            her employment.  Claimant has failed to appear and to 
 
            testify on her own behalf.  There is not sufficient evidence 
 
            to support the allegations found in her original notice and 
 
            petition.  The evidence is conflicting whether the injury 
 
            was work related.  Claimant has failed to present sufficient 
 
            evidence to support allegations of a compensable work 
 
            injury.  Claimant takes nothing from these proceeding with 
 
            respect to file number 1013377.
 
            
 
                 Besides her right upper extremity claim, claimant has 
 
            alleged that she has sustained a work-related injury to her 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            right lower extremity.  The parties have stipulated that 
 
            claimant did sustain a work-related injury to her right knee 
 
            when she slipped on the parking lot.  The parties have also 
 
            stipulated that claimant has sustained a temporary 
 
            disability as a result of her work injury.  Previous to the 
 
            date of the hearing, defendants have paid claimant 4.286 
 
            weeks of weekly benefits at the stipulated rate of $270.02 
 
            per week.
 
            
 
                 Again, claimant has failed to appear and to testify on 
 
            her own behalf.  Claimant has failed to present sufficient 
 
            evidence to support the allegations in her original notice 
 
            and petition that her work injury has resulted in a 
 
            permanent condition and that she is entitled to any 
 
            permanent partial disability benefits.  
 
            
 
                 The medical evidence does not support any permanent 
 
            condition.  The radiographs are in the normal range.  The 
 
            range of motion of the right knee is in the normal range.  
 
            Dr. Riggins has opined that he is unable to identify the 
 
            presence of a ratable condition.  Dr. Randolph's findings 
 
            are minimal, at best.  He has diagnosed claimant as having a 
 
            strong suggestion of tendonitis.  Claimant's condition does 
 
            not appear to be permanent in nature.  Claimant takes 
 
            nothing further from these proceedings.
 
            
 
                                      ORDER
 
            
 
                 With respect to file numbered 1013377, claimant takes 
 
            nothing from the procedures.
 
            
 
                 With respect to file numbered 948568, claimant takes 
 
            nothing further from these proceedings.
 
            
 
                 Costs are taxed to defendant pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Defendant shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of January, 1994.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr. William Bauer
 
            Attorney at Law
 
            100 Valley Street
 
            P.O. Box 517
 
            Burlington, Iowa 52601
 
            
 
            Harry W. Dahl
 
            Attorney at Law
 
            974 73rd Street Suite 16
 
            Des Moines, Iowa 50314
 
            
 
            
 
 
            
 
 
 
 
 
                                             1400; 1402
 
                                             Filed January 21, 1994
 
                                             Michelle E. McGovern
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LINDA SANDERSON,    
 
                      
 
                 Claimant,                      File Nos.  948568
 
                                                          1013377
 
            vs.       
 
                      
 
            UNITED TECHNOLOGIES                A R B I T R A T I O N
 
            AUTOMOTIVES,   
 
                                                 D E C I S I O N
 
                 Employer, 
 
                      
 
            and       
 
                      
 
            PACIFIC EMPLOYERS INSURANCE,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1400, 1402
 
            Claimant failed to appear at the consolidated hearing of her 
 
            claims.  Claimant's attorney appeared and made a 
 
            professional statement regarding the attempts he had made to 
 
            contact his client.  A representative of defendant was 
 
            present at the hearing as well as defendants' attorney.  
 
            Various exhibits were offered and admitted.  
 
            With respect to file number 1013377, claimant did not 
 
            produce sufficient evidence in support of her allegations of 
 
            a compensable work injury.  Claimant failed to meet her 
 
            burden of proof.
 
            
 
            With respect to file number 948568, the parties stipulated 
 
            that claimant had sustained a work related injury to her 
 
            right lower extremity.  The parties also stipulated that the 
 
            injury caused a temporary disability.  It was disputed 
 
            whether claimant had sustained a permanent condition.  
 
            The medical evidence was insufficient to support a 
 
            conclusion that the condition was permanent in nature.  
 
            Because claimant failed to appear ar her hearing, she did 
 
            not provide any testimony in support of her allegations of a 
 
            compensable work injury and which was permanent in nature.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DEBORAH L. KNOLL,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 948815
 
            CHEROKEE MENTAL HEALTH        :
 
            INSTITUTE,
 
                                          :  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 Deborah 
 
            L. Knoll, claimant, against Cherokee Mental Health 
 
            Institute, employer and State of Iowa, insurance carrier, to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            the result of an injury sustained on April 21, 1990.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on February 4, 1992, in Storm Lake, 
 
            Iowa.  The record was considered fully submitted at the 
 
            close of the hearing.  The record in this case consists of 
 
            testimony of claimant, Philip Knoll, Billy McKay, and Bonita 
 
            Rupp; claimant's exhibits 1 through 5 and defendants' 
 
            exhibits A through H.  
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            February 4, 1992, the parties stipulate that an 
 
            employer-employee relationship between claimant and employer 
 
            existed at the time of the alleged injury and that claimant 
 
            sustained an injury on April 21, 1990, which arose out of 
 
            and in the course of her employment with employer.  The 
 
            parties submit the following issues for resolution:
 
            
 
                 .  Whether the work injury is a cause of permanent 
 
            disability;
 
            
 
                 .  The extent of entitlement to weekly compensation for 
 
            temporary total or healing period benefits;
 
            
 
                 .  The extent of entitlement to weekly compensation for 
 
            permanent disability benefits;
 
            
 
                 .  The extent of entitlement to medical benefits under 
 
            Iowa Code section 85.27; and
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 .  Defendants entitlement to credit under Iowa Code 
 
            section 85.38(2).
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on January 18, 1960, and completed 
 
            the twelfth grade of school.  Claimant's work activity has 
 
            been primarily as a child development worker/resident 
 
            treatment worker.  She worked eight years at Woodward State 
 
            Hospital School and transferred to Cherokee Mental Health 
 
            Institute in late 1988.  Claimant's duties at Cherokee prior 
 
            to her injury in April 1990 included housekeeping, 
 
            supervising adult male patients, delivering meals, 
 
            supervising patients' daily activities and acting as a link 
 
            between patients and their doctor.  Her medical history 
 
            prior to April 1990 includes a knee injury in 1986, which 
 
            was rated at 10 percent permanent disability.  Claimant's 
 
            present injury occurred on April 21, 1990.  While retrieving 
 
            linens in the hospital clothing room, she caught her shoe on 
 
            the corner of the cupboard and fell to the ground.  She 
 
            filled out an incident report indicating that she hurt her 
 
            back.  She worked the rest of her shift that day and the 
 
            following week.  On May 5, 1990, her back pain became so 
 
            severe that she required treatment at Sioux Valley Memorial 
 
            Hospital.  She was taken for conservative treatment.  She 
 
            returned to work for one day on October 3, 1990.  After 
 
            exhausting her sick and vacation leave, she applied for 
 
            medical leave of absence without pay.  She received 
 
            long-term disability payments from December 15, 1990 through 
 
            April 30, 1991.  On October 23, 1991, she was recalled by 
 
            employer and returned to work as a resident treatment worker 
 
            on the night shift.  
 
            
 
                 The pertinent medical evidence of record indicates that 
 
            claimant was seen in the emergency room at Sioux Valley 
 
            Memorial Hospital on April 29, 1990, for evaluation of back 
 
            pain.  She was given Motrin IM and discharged.  She then 
 
            made arrangements to see her treating physician, Steven J. 
 
            Veit, for follow-up evaluation (exhibit 1, page 12).
 
            
 
                 Dr. Veit admitted claimant to Sioux Valley Memorial 
 
            Hospital on May 5, 1990, for treatment of midline low back 
 
            pain.  A lumbar CT scan was negative at L3-L4 and L4-L5, but 
 
            showed vacuum degenerative disc with central herniation of 
 
            disc material at L5-S1 just to the left of the midline 
 
            putting pressure on the dural sac.  She was treated 
 
            conservatively with one week of pelvic traction.  She was 
 
            discharged on May 15, 1990 (ex. 1).
 
            
 
                 Claimant was referred by employer/insurance carrier to 
 
            Leonel H. Herrera, M.D., neurosurgeon, for evaluation on May 
 
            15, 1990.  After reviewing the claimant's medical history 
 
            and noting her complaints, Dr. Herrera performed a physical 
 
            examination.  He diagnosed lumbosacral and sacroiliac 
 
            ligamentous sprain with no focal neurological deficits.  It 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            was his impression that the centrally, mildly bulging disc 
 
            was not producing her symptoms.  He recommended time off 
 
            work and an out-patient physical therapy program (ex. A, pp. 
 
            1-2).
 
            
 
                 Claimant saw Dr. Herrera for follow-up examination on 
 
            June 5, 1990.  She reported that her back pain was much 
 
            improved and no longer presented difficulty for her.  Her 
 
            chief complaint was pain in the left hip with radiation down 
 
            the left leg into her foot.  She was advised to start a 
 
            rehabilitation program (ex. A, p. 3).  
 
            
 
                 After three physical therapy sessions, claimant 
 
            reported to Dr. Herrera increased back pain.  On 
 
            examination, she had some tenderness at the lumbosacral 
 
            junction with negative straight leg raising in the sitting 
 
            and supine positions.  She was advised to increase her 
 
            participation in the rehabilitation program (ex. A, p. 4).  
 
            
 
                 Dr. Herrera last saw claimant on July 17, 1990.  At 
 
            this time, he recommended that she return to work starting 
 
            on a light duty program with lifting no more than 10 pounds 
 
            and no repetitive bending or stooping.  He recommended 
 
            increasing work hours from four to six and then eight hours, 
 
            three times per week.  He requested a re-evaluation after 
 
            five days of eight hours work (ex. A, pp. 5 and 15).
 
            
 
                 Claimant requested a second opinion and wanted Dr. 
 
            Herrera to refer her to a physician in Spencer, Iowa.  
 
            Instead, he referred her to a neurosurgeon in Sioux City, 
 
            Iowa (ex. A, pp. 17-19).
 
            
 
                 Claimant felt that she was unable to return to full 
 
            duty as recommended by Dr. Herrera and was referred to K.J. 
 
            Liudahl, M.D., for orthopedic consultation on August 8, 
 
            1990.  On examination, he reported, in part, that she "Has 
 
            variable inconsistent complaints of back pain and leg pain 
 
            with internal, external rotation of her hip and negative 
 
            Patrick's test, negative Bowstring test.  Is neurological 
 
            intact in both lower extremities."  He indicated that he had 
 
            nothing further to offer her and recommended that she 
 
            continue under Dr. Herrera's care at Back Care, Inc. (ex. 1, 
 
            p. 2).  
 
            
 
                 Claimant was evaluated by Ralph F. Reeder on August 21, 
 
            1990.  After reviewing the claimant's medical history and 
 
            noting her complaints (low back pain with bilateral leg 
 
            pain, left side much worse than right), Dr. Reeder conducted 
 
            a neurological examination.  He also reviewed a myelogram 
 
            which was taken on July 26, 1990.  He recommended an 
 
            epidural flood and continuance on nonsteroidal 
 
            anti-inflammatory medication.  He recommended six more weeks 
 
            of total disability and a return to light duty on October 1, 
 
            1990.  He recommended lifting no more than 10 pounds and 
 
            restricted stooping, bending, crouching, twisting, pulling, 
 
            pushing, prolonged sitting.  After one month of these 
 
            restrictions, he indicated that she may return to full 
 
            duties with a permanent 50-pound weight restriction.  He 
 
            reported that "The prognosis for recovery is uncertain and 
 
            this patient may in fact be at maximum medical improvement.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            If she shows no improvement by the time of the 
 
            aforementioned dates, I believe that patient will be left 
 
            with a permanent partial disability of 5%...." (ex. B, pp. 
 
            2-3).  
 
            
 
                 Claimant returned to work on October 3, 1990, which was 
 
            her regularly scheduled work day.  She reported to the 6:30 
 
            a.m. shift and was placed on the adult men's open ward with 
 
            light duty restrictions.  Claimant testified that she did 
 
            not return to work on October 4, 1990, because she felt that 
 
            she could not do the work.  She testified that Dr. Reeder 
 
            sent her back to Dr. Veit and he took her off work.  
 
            However, there is no supporting documentation either in Dr. 
 
            Reeder's or Dr. Veit's notes indicating that she was 
 
            referred by Dr. Reeder to Dr. Veit.  Instead, a notation 
 
            from Dr. Veit dated October 4, 1990, states that "Tried to 
 
            work yesterday.  Now has a lot of back pain into left leg.  
 
            Had to do quite a bit of walking at work and now just has 
 
            almost a constant pain down the left side of her body.  In 
 
            addition, still notices the funny intermittent bizarre 
 
            feeling shooting down her left upper extremity."  Dr. Veit 
 
            made no mention of a referral from Dr. Reeder.  Based on her 
 
            subjective complaints, Dr. Veit took her off work for 
 
            another month and continued conservative care (ex. 1, p. 
 
            14).  
 
            
 
                 After being taken off work by Dr. Veit, claimant 
 
            presented to the Division of Vocational Rehabilitation 
 
            Services in Cherokee, Iowa, on October 9, 1990, for 
 
            evaluation.  Claimant was approved for enrollment at Iowa 
 
            Lakes Community Colleges Substance Abuse Counselor program 
 
            in January 1991.  Claimant testified that she has obtained 
 
            30 semester hours and expects to receive an associate degree 
 
            in January 1993 (ex. D).
 
            
 
                 Claimant was referred by Principal Insurance to Michael 
 
            T. O'Neil, M.D., for evaluation on July 1, 1991, to 
 
            determine whether she was still eligible for long-term 
 
            disability benefits.  Claimant presented with complaints of 
 
            dull aching low back pain and left posterior buttock and 
 
            lateral thigh pain.  X-rays of the lumbosacral spine were 
 
            obtained and revealed a severely narrowed L5-S1 
 
            intervertebral disc space.  Dr. O'Neil believed that there 
 
            was some functional overlay and malingering to claimant's 
 
            complaints.  He noted inconsistent straight leg raising 
 
            tests and inconsistent pain with minimal forward flexion of 
 
            the lumbar spine.  There was no evidence of any objective 
 
            neurological changes and minimal changes were noted on 
 
            previous myelograms and CT scans.  He felt that she could 
 
            return to work in a more sedentary type of occupation.  He 
 
            indicated that she has reached maximum medical improvement 
 
            and is entitled to a 5 percent permanent impairment of the 
 
            body as a whole as a result of her back injury (ex. E).
 
            
 
                                conclusions of law
 
            
 
                 The parties do not dispute that claimant sustained a 
 
            work-related injury to her back on April 21, 1990.  
 
            
 
                 The first issue to be determined is the extent of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant's entitlement to weekly compensation for temporary 
 
            total disability or healing period benefits.  
 
            
 
                 Defendants contend that claimant's entitlement to 
 
            temporary benefits ended sometime in 1990 when Dr. Reeder 
 
            released her for light duty.  Claimant contends that she is 
 
            entitled to temporary benefits from April 21, 1990, through 
 
            October 23, 1991, when she returned to work with employer.  
 
            
 
                 After carefully considering the total evidence in this 
 
            case, the undersigned concludes that claimant has suffered a 
 
            permanent disability.  Therefore, she is entitled to healing 
 
            period benefits under Iowa Code section 85.34(1).  Healing 
 
            period benefits may be characterized as that period during 
 
            which there is a reasonable expectation of improvement of a 
 
            disabling condition and ends when maximum medical 
 
            improvement is reached.  Armstrong Tire & Rubber Co. v. 
 
            Kubli, Iowa App., 312 N.W.2d 60, 65 (1981).  In discussing 
 
            the concept of healing period as contemplated by Iowa Code 
 
            section 85.34(1), the Kubli court observed that recuperation 
 
            refers to that condition in which healing is complete and 
 
            the extent of the disability can be determined.  Kubli, 312 
 
            N.W.2d 65.  The healing period generally terminates at the 
 
            time the attending physician determines that the employee 
 
            has recovered as far as possible from the effects of the 
 
            injury.  Kubli, 312 N.W.2d 65.  When a permanent rating is 
 
            given, it indicates that the physician does not expect the 
 
            claimant to improve and this conclusion meets the criteria 
 
            of Iowa Code section 85.34(1) and Thomas v. Wm. Knudson & 
 
            Sons, Inc., 349 N.W.2d 124, 126 (Iowa Ct. App. 1984).  
 
            
 
                 In this instance, claimant's healing period ended on 
 
            October 31, 1990, when she was released by Dr. Reeder for 
 
            full-time work duty and given a permanent partial disability 
 
            rating of 5 percent (ex. B, p. 3).
 
            
 
                 The next issue to be determined is claimant's 
 
            entitlement to permanent partial disability benefits.  The 
 
            causal connection of permanent partial disability to the 
 
            April 21, 1990, injury was established by physicians who 
 
            have treated and/or examined claimant for this injury and 
 
            claimant's testimony that she had no back problems prior to 
 
            the injury.  Claimant has clearly demonstrated that she 
 
            sustained an industrial disability as a result of her April 
 
            21, 1990, injury.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            first instance reference is to loss of earning capacity and 
 
            in the latter 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 healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            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.  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.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  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, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.   See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Industrial disability was defined in Diederich, 219 
 
            Iowa 587, 593, 258 N.W. 899, 902 as loss of earning capacity 
 
            and not a  mere `functional disability' to be computed in 
 
            terms of percentages of the total physical and mental 
 
            ability of a normal person.  The essence of an earning 
 
            capacity inquiry then, is not how much has the claimant been 
 
            functionally impaired, but whether that impairment, in 
 
            combination with the claimant's age, education, work 
 
            experience, pre and post-injury wages, motivation, and 
 
            ability to get a job within her restrictions, if any 
 
            restrictions have been imposed, have caused a loss of 
 
            earning capacity.  Olson v. Goodyear Service Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251, 257 (1963); Diederich, 219 Iowa 
 
            587, 593, 258 N.W. 899, 902; Peterson v. Truck Haven Cafe, 
 
            Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner 
 
            Decisions 654, 658 (Appeal Decision February 28, 1985); 
 
            Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa 
 
            Industrial Commissioner Decisions 529 (Appeal Decision March 
 
            26, 1985).
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There is no 
 
            equation which can be applied and then calculated to 
 
            determine the degree of industrial disability to the body as 
 
            a whole.  It therefore becomes necessary for the deputy or 
 
            commissioner to draw upon prior experience and general and 
 
            specialized knowledge to make a finding with regard to the 
 
            degree of industrial disability.  See, Peterson, vol. 1, no. 
 
            3 State of Iowa Industrial Commissioner Decisions 654, 658; 
 
            Christensen, vol. I, no. 3, State of Iowa Industrial 
 
            Commissioner Decisions 535.
 
            
 
                 In this instance, claimant is relatively young and her 
 
            industrial disability is not as serious as it would be for 
 
            an older employee.  McCoy, file numbers 782670 & 805200.  
 
            Claimant has been given a 5 percent functional impairment 
 
            rating and a 50 pound lifting restriction by Dr. Reeder and 
 
            limitations on sitting, standing, bending, stooping, and 
 
            climbing.  Claimant is still working at Cherokee Mental 
 
            Health Institute and is earning more money than she was at 
 
            the time of her injury.  There is some hint in the medical 
 
            evidence that claimant's complaints are out of proportion to 
 
            the clinical and laboratory findings and may well be 
 
            exaggerated.  Claimant's limitations and restrictions appear 
 
            to be based more on her subjective complaints of pain rather 
 
            than objective medical evidence.
 
            
 
                 Based upon the foregoing factors, all of the facts used 
 
            to determine industrial disability, and employing agency 
 
            expertise, it is determined that claimant sustained a 10 
 
            percent industrial disability and is entitled to 50 weeks of 
 
            permanent partial disability benefits commencing on November 
 
            1, 1990.
 
            
 
                 The final issue to be determined is whether claimant is 
 
            entitled to certain medical expenses under Iowa Code section 
 
            85.27.  
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.; Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise Constr. 
 
            Specialists, Inc., File No. 850096 (App. 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa Ct. App. 1983).
 
            
 
                 When a designated physician refers a patient to another 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            physician, that physician acts as the defendant employer's 
 
            agent.  Permission for the referral from defendants is not 
 
            necessary.  Kittrell v. Allen Memorial Hospital, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
 
            
 
                 An employer's right to select the provider of medical 
 
            treatment to an injured worker does not include the right to 
 
            determine how an injured worker should be diagnosed, 
 
            evaluated, treated or other matters of professional medical 
 
            judgment.  Assmann v. Blue Star Foods, Inc., File No. 866389 
 
            (Declaratory Ruling, May 18, 1988).
 
            
 
                 Defendants argue that some of claimant's medical 
 
            charges are not causally related to the April 1990 work 
 
            injury and were not authorized by defendants. 
 
            
 
                 The employer's obligation to furnish medical treatment 
 
            carries with it the privilege of selecting the care.  In an 
 
            emergency when an employer or the employer's agent cannot be 
 
            contacted immediately, the employee may choose care at the 
 
            employer's expense.  An employee who experiences 
 
            dissatisfaction with the provided care should communicate 
 
            the basis of the unhappiness to the employer.  This 
 
            communication should be in writing.  
 
            
 
                 The employer has a duty to monitor the treatment being 
 
            provided.  If for any reason the employer is dissatisfied 
 
            with the care given, it must provide an alternative and give 
 
            notice preferably in writing that care by a particular 
 
            practitioner is no longer authorized.  
 
            
 
                 Claimant has proven entitlement to reimbursement for 
 
            some medical and mileage expenses related to the April 21, 
 
            1990, injury including one office visit to Dr. Veit for 
 
            purposes of a second opinion, office visits and treatment by 
 
            Dr. Herrera and office visit and treatment recommendations 
 
            (an epidural flood and continuation of nonsteroidal 
 
            anti-inflammatory medication and Voltaren) recommended by 
 
            Dr. Reeder.  
 
            
 
                 Claimant has failed to prove entitlement to 
 
            reimbursement for medical mileage and expenses incurred with 
 
            Dr. Veit, (other than the one authorized visit) including 
 
            all treatments and referrals made by Dr. Veit and medication 
 
            prescribed by him.  Claimant insisted that Dr. Reeder 
 
            referred her back to Dr. Veit in October 1990, however, the 
 
            evidence does not support claimant's contentions.  
 
            Therefore, defendants are not obligated to pay medical bills 
 
            and expenses for unauthorized treatment.
 
            
 
                 Defendants seek a credit pursuant to Iowa Code section 
 
            85.38(2).  That section provides a credit against an award 
 
            for amounts paid under a nonoccupational group plan.  
 
            Claimant was an employee of the state of Iowa.  The State of 
 
            Iowa's Employee's Long-term Disablity Plan has been held to 
 
            constitute a nonoccupational group plan entitling defendants 
 
            to credit under Iowa Code section 85.38(2).  Lowe v. Iowa 
 
            State Penitentiary, (file numbers 673326, 776977, 805718) 
 
            Appeal Decision, December 16, 1988.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant twenty-seven point 
 
            seven one four (27.714) weeks of healing period benefits at 
 
            the rate of two hundred fifty-six and 98/100 dollars 
 
            ($256.98) per week from April 21, 1990, through October 31, 
 
            1990.
 
            
 
                 That defendants pay to claimant fifty (50) weeks of 
 
            permanent partial disability benefits at that rate of two 
 
            hundred fifty-six and 98/100 dollars ($256.98) per week 
 
            commencing November 1, 1990.
 
            
 
                 That defendants pay for all medical and mileage 
 
            expenses incurred for medical treatment and medication 
 
            authorized by them.
 
            
 
                 That defendants receive credit under Iowa Code section 
 
            85.38(2) for previous payments made under a nonoccupational 
 
            group health plan.
 
            
 
                 That defendants pay all of the costs pursuant to rule 
 
            343 IAC 4.33.
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants file claim activity reports as required 
 
            by this agency.
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. George Wittgraf
 
            Attorney at Law
 
            223 Pine St.
 
            PO Box 535
 
            Cherokee, Iowa  51012
 
            
 
            Mr. Greg Knoploh
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
                                       51802 51803 52500
 
                                       Filed February 13, 1992
 
                                       Jean M. Ingrassia
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         DEBORAH L. KNOLL,             :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 948815
 
         CHEROKEE MENTAL HEALTH        :
 
         INSTITUTE,
 
                                       :  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.              :
 
         ___________________________________________________________
 
         
 
         51802
 
         In a dispute as to when healing period benefits ended, it was 
 
         determined that pursuant to Armstrong Tire & Rubber Co. v. Kubli, 
 
         Iowa App., 312 N.W.2d 60, 65 (1981), that claimant's healing 
 
         period ended when she was given a permanent impairment rating and 
 
         it was determined that she reached maximum medical improvement.
 
         
 
         51803
 
         Based on claimant's age, education, work experience, pre and 
 
         post-injury wages, motivation, functional impairment and 
 
         restrictions, it was determined that claimant sustained a 10 
 
         percent industrial disability.
 
         
 
         52500
 
         Defendants stipulated that claimant sustained an injury which 
 
         arose out of and in the course of employment with employer.  
 
         Pursuant to Iowa Code section 85.27, the employer is obliged to 
 
         furnish reasonable services and supplies to treat an injured 
 
         employee and has the right to choose the care.  If the employee 
 
         is dissatisfied with the care offered, she must follow the 
 
         procedures set out in Iowa Code section 85.27 before procuring 
 
         alternate care.  Defendants agreed to pay all bills related to 
 
         services authorized by them.  There is no evidence that 
 
         claimant's chosen treatment was authorized by defendants.  
 
         Defendants are not obligated to pay medical bills for 
 
         unauthorized treatment.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         DUANE ULRICK,    
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                               File No. 949030
 
         GARNER PRINTING,      
 
                                                 A P P E A L
 
              Employer,   
 
                                               D E C I S I O N
 
         and         
 
                     
 
         EMPLOYERS MUTUAL,     
 
                     
 
              Insurance Carrier,    
 
                     
 
         and         
 
                     
 
              Defendants.      
 
         _________________________________________________________________
 
         The record has been reviewed de novo on appeal.  The ruling of 
 
         the deputy filed December 30, 1993 is affirmed and is adopted as 
 
         the final agency action in this case.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of April, 1994.
 
         
 
         
 
                                  ________________________________
 
                                          BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas P. Lenihan
 
         Attorney at Law
 
         5836 Grand #104
 
         Des Moines, Iowa 50312
 
         
 
         Mr. James F. Christenson
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-3203; 5-3302
 
                                             Filed April 29, 1994
 
                                             BYRON K. ORTON
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            DUANE ULRICK,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                              File No. 949030
 
            GARNER PRINTING,      
 
                                                A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            EMPLOYERS MUTUAL,     
 
                        
 
                 Insurance Carrier,    
 
                        
 
            and         
 
                        
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-3203; 5-3302
 
            On appeal it was determined that summary judgment should be 
 
            granted.  Claimant's alleged work injury had been settled in 
 
            a compromise special case settlement.  As a matter of law 
 
            when claimant's alleged injury in this case was settled 
 
            pursuant to Iowa Code section 85.35, claimant could not seek 
 
            benefits from the second injury fund alleging this injury 
 
            was a qualifying "second injury."
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            FORTUNATO TAMAYO,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 949353
 
            BLUE STAR FOODS,              :
 
                                               A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            SEDGWICK JAMES OF             :
 
             NEBRASKA, INC.,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding upon a petition in 
 
            arbitration filed by claimant Fortunato Tamayo against his 
 
            former employer, Blue Star Foods, and insurance carrier 
 
            Sedgwick James of Nebraska, Inc.  Mr. Tamayo sustained a 
 
            work injury while tugging on a heavy tub of ice on April 19, 
 
            1990.
 
            
 
                 A hearing was accordingly scheduled and held in Council 
 
            Bluffs, Iowa on February 21, 1994.  The record consists of 
 
            joint exhibits 1-12 and claimant's testimony.  In addition, 
 
            official notice was taken of a published case cited by 
 
            claimant as persuasive authority:  Tsuchiyama v. Kahului 
 
            Trucking and Storage, Inc., 638 P.2d 1381 (Hawaii App. 
 
            1982).
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the following:
 
            
 
                    1.  Claimant sustained injury arising out of 
 
                    and in the course of employment on April 19, 
 
                    1990;
 
            
 
                    2.  The injury caused both temporary and 
 
                    permanent disability;
 
            
 
                    3.  Entitlement to healing period benefits 
 
                    (April 19 through August 26 and October 10 
 
                    through October 14, 1990) is no longer 
 
                    disputed;
 
            
 
                    4.  Permanent disability should be 
 
                    compensated industrially;
 
            
 
                    5.  The correct rate of weekly compensation 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                    is $229.18;
 
            
 
                    6.  Entitlement to medical benefits is no 
 
                    longer in dispute; and,
 
            
 
                    7.  Prior to hearing, defendants paid 
 
                    claimant 80 weeks of compensation at the 
 
                    stipulated rate, 19.286 weeks of which are 
 
                    attributable to healing period.
 
            
 
                 The sole issue presented for resolution is the extent 
 
            of claimant's industrial disability, as an odd-lot employee 
 
            or otherwise.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Fortunato Tamayo, 67 years of age at hearing, left 
 
            school in the second grade and is functionally illiterate.  
 
            Although Mr. Tamayo speaks English as a second language, he 
 
            has reasonable proficiency and can be readily understood.  
 
            He cannot read or write in Spanish, his first language, and 
 
            in English, can sign his name, but cannot write a bank check 
 
            and recognizes street signs only by shape.
 
            
 
                 Born in Texas in 1926, claimant engaged in farm labor 
 
            until 1960, when he moved to Council Bluffs, Iowa.  He 
 
            thereupon accepted work with Blue Star Foods until retiring 
 
            in 1993.  Except for one year when he loaded trucks by hand, 
 
            Mr. Tamayo was employed as a forklift driver through the 
 
            date of injury.
 
            
 
                 Claimant was injured while defrosting a large walk-in 
 
            freezer.  He knocked a quantity of ice from the freezer 
 
            ceiling, placed it into a five foot by three foot tub, then 
 
            injured himself when he slipped while attempting to move it.
 
            
 
                 Radiographic evidence of a torn rotator cuff resulted 
 
            in a surgical repair on May 11, 1990, by orthopedic surgeon 
 
            Daniel J. Larose, M.D.  The procedure was described as 
 
            repair of the right rotator cuff, acromioplasty, section of 
 
            the coracoacromial ligament bursectomy and resection of the 
 
            distal 1 cm of the clavicle.
 
            
 
                 Dr. Larose eventually rated impairment at 20 percent of 
 
            the upper extremity or 12 percent of the whole person.  He 
 
            imposed permanent restrictions against lifting over 20 
 
            pounds and any lifting above shoulder level.  Given those 
 
            restrictions, Dr. Larose believed that claimant would 
 
            "certainly" be able to work as a forklift operator and 
 
            should be able to enjoy a comfortable retirement.
 
            
 
                 Claimant also complains of back, neck and head pain.  
 
            In particular, he complains of an inability to rotate his 
 
            head while operating a forklift.  According to Dr. Larose, 
 
            this cervical pain is not related to the initial injury.
 
            
 
                 Claimant was also seen by a neurosurgeon, Behrouz 
 
            Rassekh, M.D.  Dr. Rassekh would impose no restrictions due 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            to neck pain, but notes some limitation of neck motion 
 
            secondary to degenerative changes in the cervical spine, 
 
            described as cervical spondylosis.  He estimates permanent 
 
            impairment due to cervical problems as between 0-5 percent 
 
            of the body as a whole.
 
            
 
                 As to causation of neck pain, Dr. Rassekh wrote on 
 
            October 18, 1990: "I do believe some of the symptoms of this 
 
            patient is related to his rotator cuff injury rather than 
 
            any cervical pathology."  The writer does not understand 
 
            what Dr. Rassekh means by this statement.  On February 6, 
 
            1991, Dr. Rassekh wrote: "We still have no objective 
 
            evidence of explanation for the neck pain other than mild 
 
            degenerative changes."
 
            
 
                 Claimant returned to work for Blue Star Foods in a 
 
            light duty capacity in maintenance of the company cafeteria.  
 
            This work involved cleaning tables and the like, and 
 
            apparently honors the restrictions imposed by Dr. Larose.  
 
            Neither did the job entail a loss of pay.  Mr. Tamayo 
 
            continued at this job for approximately one year, then 
 
            requested re-assignment to forklift duties due to a personal 
 
            conflict with a fellow employee.  The record fails to 
 
            disclose any medical reason why claimant could not have 
 
            continued in this job.
 
            
 
                 Claimant then continued in his regular forklift job 
 
            until retiring at age 67.  During this time, a management 
 
            decision was made to require operation of unloaded forklifts 
 
            inside the plant only in reverse, so as to avoid the 
 
            possibility of spearing pedestrians with the fork prongs.  
 
            Mr. Tamayo felt unable to operate his forklift in reverse 
 
            due to difficulty rotating his head, but Blue Star 
 
            accommodated him by limiting his duties to the loading dock, 
 
            where the "reverse only" rule was not in effect.
 
            
 
                 Claimant eventually retired at age 67 on May 11, 1993.  
 
            He now lives on Social Security retirement benefits and a 
 
            very modest pension from Blue Star Foods.  Mr. Tamayo cites 
 
            several forklift mishaps, including a collision with a 
 
            pedestrian, as precipitating the decision to retire.  
 
            Indeed, he specified in testimony that he retired due to 
 
            fear that he might injure someone.  Mr. Tamayo further 
 
            blames consumption of substantial quantities of aspirin due 
 
            to residual pain from the work injury (he says he could 
 
            barely make it to his car after an 8-hour shift).  This 
 
            record, however, does not contain evidence that aspirin 
 
            interferes with the ability to safely operate machinery.  
 
            
 
                 According to Gerald Menges, who testified by deposition 
 
            on February 16, 1994, the collision with a pedestrian 
 
            shortly before claimant's retirement occurred as he was 
 
            coming through a curtained "blind spot" in a freezer.  
 
            Menges testified:
 
            
 
                    It was just a blind spot in the freezer.  He 
 
                    was coming through the curtains, and she was 
 
                    getting ready to go through the other way, 
 
                    and you can't see through the curtains.  
 
                    They're all frosted up.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            (Gerald Menges' Deposition, Page 11)
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 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.
 
            
 
                 The burden of persuasion on the issue of industrial 
 
            disability always remains with the worker.  When a worker 
 
            makes a prima facie case of total disability by producing 
 
            substantial evidence that the worker is not employable in 
 
            the competitive labor market, the burden to produce evidence 
 
            of suitable employment shifts to the employer, however.  If 
 
            the employer fails to produce such evidence and if the trier 
 
            of fact finds the worker does fall in the odd-lot category, 
 
            the worker is entitled to a finding of total disability.  
 
            Guyton, 373 N.W.2d at 106.  Even under the odd-lot 
 
            doctrine, the trier of fact is free to determine the weight 
 
            and credibility of evidence in determining whether the 
 
            worker's burden of persuasion has been carried, and only in 
 
            an exceptional case would evidence be sufficiently strong as 
 
            to compel a finding of total disability as a matter of law.  
 
            Guyton, 373 N.W.2d at 106.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Dr. Larose, the treating surgeon, has imposed medical 
 
            restrictions against lifting in excess of 20 pounds or above 
 
            shoulder level.  He also specified that claimant should be 
 
            able to work as a forklift operator so long as these 
 
            restrictions were observed.  He does not find cervical 
 
            complaints related to this injury, while Dr. Rassekh's view 
 
            on this question is unclear.  Nonetheless, Dr. Rassekh has 
 
            further specified that no physical restrictions were imposed 
 
            by reason of back pain.
 
            
 
                 Claimant was employed by Blue Star Foods for some 33 
 
            years before retiring at an age many consider a "normal" 
 
            retirement age.  There is little doubt that his 
 
            attractiveness on the competitive labor market is reduced by 
 
            reason of the rotator cuff repair and subsequent medical 
 
            restrictions, but this factor is of less significance in the 
 
            case of such a long-time employee, close to retirement age, 
 
            who is able to return to his regular, long time job.
 
            
 
                 The record shows no medical reason why claimant could 
 
            not have continued working either in the company cafeteria 
 
            or on the forklift, both at the same hourly wage he enjoyed 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            before the work injury.  While claimant experienced some 
 
            reduction in hours as a forklift driver, this was due to a 
 
            company reorganization, not the work injury.
 
            
 
                 Claimant is clearly not an odd-lot employee.  His 
 
            actual loss of earnings is little, if any.  His decision to 
 
            retire is not shown to be attributable to the work injury.  
 
            There is no medical reason why Mr. Tamayo could not have 
 
            continued operating the forklift, as he had done for so many 
 
            previous years.  His retirement, as noted, came at an age 
 
            many people would consider entirely normal.  
 
            
 
                 Considering then these factors in particular and the 
 
            record otherwise in general, it is held that claimant has 
 
            sustained a permanent partial disability equivalent to ten 
 
            percent of the body as a whole, or 50 weeks.  As defendants 
 
            have voluntarily paid compensation in excess of 50 weeks, 
 
            claimant takes nothing further.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing further.
 
            
 
                 Costs are assessed to defendants.
 
            
 
                 Signed and filed this ____ day of May, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Sheldon M Gallner
 
            Attorney at Law
 
            803 Third Avenue
 
            PO Box 1588
 
            Council Bluffs Iowa 51501
 
            
 
            Mr James F Thomas
 
            Mr Ronald L Comes
 
            Attorneys at Law
 
            1100 One Central Park Plaza
 
            2222 S 15th Street
 
            Omaha Nebraska 68102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1803
 
                                                Filed May 20, 1994
 
                                                DAVID RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            FORTUNATO TAMAYO,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 949353
 
            BLUE STAR FOODS,              :
 
                                               A R B I T R A T I O N
 
                 Employer,                :
 
                                                 D E C I S I O N
 
            and                           :
 
                                          :
 
            SEDGWICK JAMES OF             :
 
             NEBRASKA, INC.,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Industrial disability was less than benefits voluntarily 
 
            paid.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ----------------------------------------------------------------
 
                                       
 
         ALICE CHRISTINE VAN ROEKEL,   :
 
                                       :         File Nos. 955801
 
              Claimant,                :                   991582
 
                                       :                   949436
 
         vs.                           :
 
                                       :      
 
         IOWA VETERANS HOME,           :
 
                                       :     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.              :
 
         ----------------------------------------------------------------
 
         
 
              This matter came on for hearing at 3 p.m. on the third day 
 
         of February 1994 in accordance with the hearing assignment order 
 
         issued August 3, 1993.  Claimant did not appear and no one 
 
         appeared on her behalf.  No evidence was introduced.  
 
         
 
              The party who would suffer loss if an issue were not 
 
         established has the burden of proving that issue by a 
 
         preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the alleged injury actually occurred and that 
 
         it arose out of and in the course of employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967).  The words 
 
         "arising out of" refer to the cause or source of the injury.  The 
 
         words "in the course of" refer to the time, place and 
 
         circumstances of the injury.  Sheerin v. Holin Co., 380 N.W.2d 
 
         415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 
 
         1971).
 
         
 
              No evidence was introduced and the claimant failed to carry 
 
         the burden of proving that she had any entitlement in any of the 
 
         three claims.  
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from 
 
         these proceedings.  The costs of these actions are assessed 
 
         against the claimant.
 
         
 
              Signed and filed this __________ day of February, 1994.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       MICHAEL G. TRIER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Ms. Christine Van Roekel
 
         Box 173
 
         Marshalltown, Iowa  50158
 
         CERTIFIED AND REGULAR MAIL
 
         
 
         Mr. James Christenson
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 
         Des Moines, Iowa  50319
 
         
 
 
            
 
            
 
            
 
            
 
                                              1402.20 1402.40
 
                                              Filed February 9, 1994
 
                                              Michael G. Trier
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            ALICE CHRISTINE VAN ROEKEL,   :
 
                                          :         File Nos. 955801
 
                 Claimant,                :                   991582
 
                                          :                   949436
 
            vs.                           :
 
                                          :      
 
            IOWA VETERANS HOME,           :
 
                                          :     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.              :
 
            ------------------------------------------------------------
 
            1402.20 1402.40
 
            
 
            Claimant failed to appear for hearing.  Claimant failed to 
 
            carry burden of proof.