BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BEVERLY BEIREIS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File Nos. 913904
 
            DUBUQUE STAMPING CO.,         :                949486
 
                                          :  
 
                 Employer,                :    A R B I T R A T I O N
 
                                          :      
 
            and                           :       D E C I S I O N
 
                                          :
 
            AMERICAN MANUFACTURERS MUTUAL,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Beverly 
 
            Beireis, claimant, against Dubuque Stamping Company, 
 
            employer, and American Manufacturers Mutual Insurance 
 
            Company, insurance carrier, for benefits as the result of 
 
            two injuries.  The first injury occurred to claimant's 
 
            middle finger and ring finger of the left hand on March 29, 
 
            1989 (file number 913904).  The second injury occurred to 
 
            claimant's right shoulder, neck and back on May 8, 1990 
 
            (file number 949486).  A hearing was held in Dubuque, Iowa, 
 
            on August 12, 1992, and the case was fully submitted at the 
 
            close of the hearing.  Claimant was represented by James P. 
 
            Hoffman.  Defendants were represented by Vicki L. Seeck.  
 
            The record consists of the testimony of Beverly Beireis, 
 
            claimant; Angella J. Mesch, claimant's daughter; Robert E. 
 
            Plourde, manager of employee relations; and joint exhibits 1 
 
            through 15.  Defendants' counsel presented a brief 
 
            description of disputes for each injury at the time of the 
 
            injury.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 With respect to the injury to the left ring and long 
 
            finger, which occurred on March 29, 1989, the parties 
 
            submitted the following issues for determination:
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability;
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits.
 
            
 
                 With respect to the injury to the right shoulder, neck 
 
            and back, which occurred on May 8, 1990, the parties 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            submitted the following issues for determination:
 
            
 
                 Whether the injury was the cause of permanent 
 
            disability;
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the extent of benefits to which she is 
 
            entitled;
 
            
 
                 Whether claimant is entitled to medical expenses, more 
 
            specifically, the chiropractic fees of Todd C. Spurling, 
 
            D.C., and if so, a designation of the fees to which he is 
 
            entitled.
 
            
 
                 fingers injury-march 29, 1989-file number 913904
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 causal connection-entitlement-scheduled members
 
            
 
                 It is determined that the injury to claimant's left 
 
            long finger and left ring finger on March 29, 1989, was not 
 
            the cause of permanent disability and, therefore, claimant 
 
            is not entitled to permanent disability benefits for these 
 
            two digits.
 
            
 
                 Claimant testified that she smashed the left long 
 
            finger and left ring finger while blanking rocker arms out 
 
            of steel.  Claimant testified that she was taken to Finley 
 
            Hospital and was off work for about one and one-half months.  
 
            She was paid workers' compensation for her time off work and 
 
            her medical expenses were paid by employer.
 
            
 
                 A surgeon's first report of injury states that claimant 
 
            fractured the tufts of both the left middle finger and left 
 
            ring finger and suffered subungual hematomas under both 
 
            fingernails which were drained with a vasectomy cautery 
 
            devise.  She was treated with ice, elevation and pain 
 
            medications and referred to David S. Field, M.D.  X-ray 
 
            diagnosis disclosed a fracture of the tufts of both fingers 
 
            (exhibit 8, page 77).
 
            
 
                 Dr. Field reported on April 4, 1989, that claimant 
 
            received a distal tuft fracture of the middle and ring 
 
            fingers of the left hand and that no permanent disability 
 
            was anticipated (ex. 8, p. 73).
 
            
 
                 Claimant testified that when it came time to be 
 
            evaluated for this injury, the treating physician, Dr. 
 
            Field, had left town and the evaluation was performed by 
 
            another doctor, Scott Schemmel, M.D.  Dr. Schemmel reported 
 
            on March 14, 1991, that he evaluated claimant for a 
 
            compression type injury to the left hand long and ring 
 
            fingers.  He said the patient reports occasional discomfort 
 
            out over the tip in the left hand ring finger.  She said her 
 
            fingernail felt strange like it was not there, the finger 
 
            gets colder than the other fingers and she feels like the 
 
            distal joint is smaller.  
 
            
 
                 An x-ray of the fourth finger on March 14, 1991, by Dr. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Schemmel showed that the PIP and DIP joints were well 
 
            maintained without evidence of posttraumatic degenerative 
 
            arthritis.  The MP joint also appeared to be normal.  He 
 
            said no residual fracture or adjoining incongruities were 
 
            identified (ex. 11, p. 90).  His final evaluation was as 
 
            follows:
 
            
 
                 On physical examination this patient's left finger 
 
                 shows no obvious deformity.  There is no 
 
                 hypertrophy or atrophy over any extent of the 
 
                 finger.  The DIP, PIP and MP joint range of 
 
                 motions to this finger are full and equal to that 
 
                 of the contralateral side.  There is no 
 
                 instability of the DIP joint in stressing and 
 
                 radial and ulnar directions.  There is no swelling 
 
                 of the joint.  The nail itself appears to be 
 
                 totally normal.  It is not discolored, cracked or 
 
                 abnormal in shape or with any tendency towards 
 
                 ingrowth.  The joint is not tender to direct 
 
                 palpation.  Composite motion is excellent and into 
 
                 the palm.  
 
            
 
                 AP and lateral x-rays were repeated today.  They 
 
                 show no degenerative changes to be present at the 
 
                 DIP joint is either plane.
 
            
 
                 I informed the patient that on the basis of the 
 
                 AMA guide to the evaluation of disability that she 
 
                 did not have any impairment of this finger....
 
            
 
            (exhibit 11, pp. 91-92)
 
            
 
                 Dr. Schemmel's evaluation and statement of no 
 
            impairment is not controverted, contradicted, rebutted, or 
 
            refuted by any other physician.
 
            
 
                 Claimant testified that the tips of the long finger and 
 
            ring finger on her left hand are numb and tingle.  She can 
 
            cut herself and not know it.  These two fingers become cold 
 
            and she frequently makes a fist with her left hand in order 
 
            to keep these fingers warm.  Claimant did acknowledge that 
 
            she could move and bend them normally.  Claimant is 
 
            credible.  There is no evidence, however, that these sensory 
 
            feelings are permanent.  Furthermore, claimant did not 
 
            testify that they impair the use of her left hand or the use 
 
            of these two fingers.
 
            
 
                 Wherefore, it is determined that the injury to 
 
            claimant's left long finger and left ring finger was not the 
 
            cause of any permanent impairment or disability and that 
 
            claimant is not entitled to permanent disability benefits 
 
            for the injury to these two fingers.
 
            
 
            right shoulder, neck and back injury-May 8, 1990-file number 
 
                                      949486
 
            
 
                 It is determined that the injury to claimant's right 
 
            shoulder, neck and back which occurred on May 8, 1990, was 
 
            the cause of permanent impairment and disability in the 
 
            amount of 5 percent to the body as a whole and that claimant 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            is entitled to 25 weeks of permanent partial disability 
 
            benefits.
 
            
 
                 Claimant testified that she fell from an elevated area 
 
            while raking rocker arms and struck her right shoulder (ex. 
 
            1, p. 3; ex. 4, p. 18; ex. 6, p. 32; ex. 10, p. 79; ex. 12, 
 
            p. 93).  Employer sent claimant to see Thomas J. Hughes, 
 
            M.D., an occupational medicine doctor.  He found trapezius 
 
            tenderness and inability to abduct or rotate her right arm.  
 
            X-rays were unremarkable.  He prescribed ice, massage, a 
 
            sling, medications, and took claimant off work (ex. 10, pp. 
 
            79-80).  He saw claimant 25 times between May 8, 1990 and 
 
            December 27, 1990, when he determined that claimant had made 
 
            a full and complete recovery except for some deep seated 
 
            aching in the right trapezius muscle which he felt would 
 
            essentially resolve over time and which did not cause any 
 
            decrement in her performance (ex. 10, p.79; 289).
 
            
 
                 Even though claimant did not have surgery, she, 
 
            nevertheless, had a long and difficult course of recovery as 
 
            demonstrated by (1) Dr. Hughes' office notes and records 
 
            (ex. 7, pp. 34-48; ex. 10, pp. 79-89), (2) Dr. Hughes' 
 
            letters to the insurance carrier (ex. 7, pp. 66-71), and (3) 
 
            the reports of the rehabilitation specialist employed by 
 
            employer (ex. 4, pp. 17-29).
 
            
 
                 In subsequent reports, Dr. Hughes reported claimant's 
 
            diagnosis variously as right shoulder strain, rotator cuff 
 
            injury right shoulder, acute tendonitis of the rotator cuff 
 
            of the right shoulder, rotator cuff syndrome of the right 
 
            shoulder, anterior impingement syndrome of the right 
 
            shoulder, right acromia, clavicula pain and left scapula 
 
            pain, rotator cuff and acromia clavicular strain, myofascial 
 
            pain syndrome, and chronic cervical myofascial pain (ex. 7, 
 
            pp. 49-65).
 
            
 
                 Dr. Hughes very comprehensibly, yet succinctly, 
 
            summarized the lengthy and difficult period of treatment in 
 
            his final letter dated June 29, 1992 (ex. 12, pp. 93-94).  
 
            After her initial visit, claimant was further treated with 
 
            physical therapy, anti-inflammatory agents, muscle 
 
            relaxants, and local injection of anesthetic and steroid.  
 
            Dr. Hughes stated, "A considerable amount of difficulty was 
 
            encountered in the management of this patient, and her 
 
            continuing complaint of pain." (ex. 12, p. 93).  An MRI of 
 
            the cervical spine was unremarkable.  Dr. Hughes performed 
 
            an arthrogram on June 28, 1990, which turned out to be 
 
            normal.  In September 1990 he prescribed a TENS unit.  She 
 
            was released to part-time work and finally on September 27, 
 
            1990, she was released to unrestricted work.  Because of the 
 
            lack of progress with conventional modalities, Dr. Hughes 
 
            approved chiropractic treatments at claimant's request.  On 
 
            December 27, 1990, claimant had a full range of motion of 
 
            her right shoulder and neck and he closed his file on that 
 
            date (ex. 11, p. 92; ex. 12, p. 93).
 
            
 
                 At the time of his evaluation on June 26, 1992, Dr. 
 
            Hughes stated that claimant continues to sit on the 
 
            examining table with extremely poor posture with sagging 
 
            shoulders, overjutting chin and she continued to complain of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            pain in the area of the right trapezius.  His measurements 
 
            of claimant's range of motion in her neck and right shoulder 
 
            were all normal or very much approximating normal and these 
 
            measurements, in his opinion, would not constitute any 
 
            evidence of permanent impairment based upon range of motion 
 
            criteria.  He said her poor posture made a major 
 
            contribution to her symptomology.  He found no sensory or 
 
            strength deficit.  He found no neurological impairment.  He 
 
            stated that his findings disagreed with the evaluation 
 
            findings of claimant's chiropractic evaluator (ex. 12, p. 
 
            94).  Dr. Hughes concluded his final report by stating:
 
            
 
                 Based on the preceding information, I would rate 
 
                 this individual as having 0% impairment, and no 
 
                 evidence of any residual difficulties, save the 
 
                 symptomatic complaint of pain.  Pain is not 
 
                 normally a ratable deficit unless there are other 
 
                 associated findings.  Furthermore, when a patient 
 
                 is reported to be accomplishing her job in a very 
 
                 satisfactory manner, in terms of both attendance 
 
                 and productivity, I cannot find any basis for 
 
                 awarding a Permanent Partial Impairment Rating on 
 
                 this patient's history of injury on 5-8-90.
 
            
 
            (exhibit 12, page 94)
 
            
 
                 The chiropractor that treated claimant was Todd C. 
 
            Spurling, D.C.  His only report unfortunately was 
 
            obliterated by a 3x5 piece of paper placed between his 
 
            report and the copy machine right in the middle of the sheet 
 
            (ex. 6, pp. 32-33).
 
            
 
                 At the hearing, claimant testified that she still has 
 
            pain in the vicinity of her right shoulder, neck and 
 
            trapezius.  She demonstrated that she gets some relief from 
 
            placing her warm hand on the painful area.  She testified 
 
            that she also gets relief from rubbing it with her hand.  
 
            Claimant related that she can only sleep on her right side 
 
            for about five to ten minutes.  The pain in increased if 
 
            claimant attempts to vacuum, mow grass or lift heavy 
 
            furniture.  Claimant testified that she was unable to 
 
            perform the job of utility B operator which she was 
 
            performing at the time of the accident due to discomfort 
 
            when she raises her right arm.  She was able to perform it 
 
            for a short time, but voluntarily transferred to a floor 
 
            inspector job for over one year.  This job gave her 
 
            headaches and she then transferred into her current job 
 
            which she described as a tumbler operator. 
 
            
 
                 Robert E. Plourde, manager of employee relations, 
 
            testified that these were all voluntary transfers which 
 
            claimant requested and was granted because she was qualified 
 
            and had the seniority to be awarded the bid.  Claimant 
 
            related that this job is easier for her to perform because 
 
            it involves the use of her whole body rather than her right 
 
            upper extremity and that a hoist does most of the work.  
 
            Claimant granted that she did have to raise her right upper 
 
            extremity to turn on valves and to reach for the hoist.
 
            
 
                 Claimant contended that she made less money now because 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            the utility B operator job paid (1) base pay (2) cost of 
 
            living increases, and (3) incentive pay.  Claimant submitted 
 
            no figures to prove the amount of her actual wage loss.  
 
            Defendants' figures of claimant's income for the years 1990, 
 
            1991 and 1992, did not establish a wage gain for the reason 
 
            that claimant was off work a portion of the time in 1990 and 
 
            the year 1992 was not yet completed.  Plourde testified that 
 
            claimant's job is classified as a labor tumbler.  He further 
 
            agreed that claimant was an excellent piece worker and one 
 
            of the top operators.  He further agreed that claimant is a 
 
            fast worker and signs up for overtime work at every 
 
            opportunity.  Plourde said it was hard for her to slow down.  
 
            He was not aware of any difficulty she had with any of her 
 
            prior jobs.  Plourde estimated that even though claimant 
 
            received top incentives in the utility B operator job, 
 
            nevertheless, she had not received any reduction in pay 
 
            because the base pay for tumbler operator was greater than 
 
            that of a utility B operator.  
 
            
 
                 Plourde related that claimant operates a fork lift with 
 
            levers that are approximately chest high.
 
            
 
                 Angella J. Mesch, claimant's daughter, age 13, 
 
            testified that since the injury, her mother was unable to 
 
            hang up washing, wash the car, mow the lawn, clean the 
 
            house, or run the vacuum.  She testified that these duties 
 
            were now performed by herself, her brothers and her 
 
            step-father.
 
            
 
                 Claimant was examined by Rick C. Courtney, D.C., a 
 
            chiropractor, on April 27, 1992.  He performed an extensive 
 
            examination and wrote a lengthy and detailed report of his 
 
            evaluation.  He reported that claimant had difficulty 
 
            reaching above her shoulders, lifting above her shoulders, 
 
            moderate to heavy lifting, driving a car, lifting her arm 
 
            with a twist with weight in her right hand, looking up too 
 
            long, repetitive lifting with reaching of her right hand and 
 
            arm.  She also complained of right shoulder pain, right 
 
            shoulder blade pain and spasms, headaches, and neck pain 
 
            with stiffness.  
 
            
 
                 His x-ray findings confirmed a decreased range of 
 
            motion on flexion and extension of her cervical spine.  
 
            Shoulder x-rays were negative.  Claimant's cervical x-rays 
 
            also showed kyphosis and her thoracic x-rays showed a mild 
 
            S-shaped scoliosis.  
 
            
 
                 Spinus percussion and muscular percussion in the 
 
            cervical and thoracic area elicited pain.  Several of his 
 
            orthopedic tests to the cervical, shoulder and right upper 
 
            extremity area were positive.  He found some diminished deep 
 
            tendon reflex reaction of the right biceps.  Her right 
 
            shoulder had some loss of sensation.  He found some limited 
 
            range of motion in the cervical and shoulder areas 
 
            accompanied by pain. 
 
            
 
                 Dr. Courtney diagnosed (1) rotator cuff injury, right; 
 
            (2) calcific tendonitis; (3) greater auricular headache; and 
 
            (4) chronic cervical/shoulder-right complex grade II strain.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Adding and combining his measurements, Dr. Courtney 
 
            determined that claimant has sustained a 15 percent 
 
            permanent impairment to the body as a whole based on the AMA 
 
            Guides to the Evaluation of Permanent Impairment, 3d ed. 
 
            (ex. 1, pp. 1-7).
 
            
 
                 Claimant fell and received a severe shoulder injury.  
 
            She had a long and difficult period of recovery which 
 
            employed several modalities of treatment and still complains 
 
            of chronic pain in her right shoulder, neck and back.  She 
 
            testified it hurts but she does her job anyway.  Dr. Hughes 
 
            did not think claimant's pain and slight loss of cervical 
 
            and shoulder range of motion were ratable.  Dr. Courtney 
 
            thought that they were.  Dr. Hughes' impairment rating of 
 
            zero, is probably too low.  Dr. Courtney's impairment rating 
 
            of 15 percent is probably too high.  
 
            
 
                 Quite frequently, agency decisions determine that 
 
            persistent pain which does not respond to several modalities 
 
            of treatment and extends beyond a year or more warrants a 
 
            permanent impairment rating of 5 percent.  Moreover, the 
 
            Guides to the Evaluation of Permanent Impairment, 3d ed 
 
            (revised), section 3.3b, "Impairments Due to Specific 
 
            Disorders of the Spine," at table 53, section II, 
 
            "Intervertebral Disc and other Soft Tissue Lesions," 
 
            subparagraph B, at pages 80 and 81, shows that soft tissue 
 
            lesions which are unoperated with medically documented 
 
            injury and a minimum of six months medically documented pain 
 
            and rigidity with or without muscle spasm, associated with 
 
            none to minimal degenerative changes on structural tests 
 
            warrants an impairment rating of 4 percent in the cervical 
 
            area.  
 
            
 
                 At age 38 claimant is approaching her peak years of 
 
            earnings in her employment life and this tends to increase 
 
            her industrial disability.  Becke v. Turner-Busch, Inc., 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            34 (Appeal Decision  1979); Walton v. B & H Tank Corp., II 
 
            Iowa Industrial Commissioner Report 426 (1981); McCoy v. 
 
            Donaldson Company, Inc., file numbers 782670 & 805200 (App. 
 
            Dec. 1989).
 
            
 
                 Claimant has a high school education with no additional 
 
            education or training of any kind and her employment 
 
            experience has been limited to factory work for this one 
 
            employer for 20 years.  Thus, claimant does not have a 
 
            diverse employment background.  She has few, if any, 
 
            transferable skills.  She would not appear to be a good 
 
            candidate for academic retraining.  Conrad v. Marquette 
 
            School, Inc., IV Iowa Industrial Commissioner Report 74, 89 
 
            (1984).
 
            
 
                 Claimant was able to return to her former employer and 
 
            perform her former job at that same pay.  When it caused her 
 
            difficulty, she was able to transfer to the floor inspector 
 
            job and perform the labor tumbler job because of her 20 
 
            years of seniority with employer.  Plourde said the main 
 
            factor in obtaining a job transfer was seniority.  Plourde 
 
            also testified that claimant was one of the top employees of 
 
            employer.  Thus, claimant has been able to accommodate her 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            right shoulder difficulties because of her 20 years of 
 
            seniority and the high regard this employer had for her 
 
            abilities.  These job advantages with employer would not 
 
            transfer to other employers if she had to start over with a 
 
            new employer with no seniority and an unknown performance 
 
            record.  Hartwig v. Bishop Implement Company, IV Iowa 
 
            Industrial Commissioner Report, 159 (app. dec. 1984).  
 
            Claimant would not find the same facility of movement to 
 
            accommodate her right shoulder pain with a new employer.  
 
            Todd v. Department of General Services, Buildings and 
 
            Grounds, IV Industrial Commissioner Report 373 (1983).
 
            
 
                 At that same time, claimant's industrial disability is 
 
            reduced for the reason that the injury did not require 
 
            surgery.  Neither physician, Dr. Hughes or Dr. Courtney, 
 
            imposed and permanent restrictions on claimant's ability to 
 
            be fully employed.  However, under the heading of 
 
            "Prognosis" Dr. Courtney stated that due to the nature of 
 
            her condition and his findings at the time of his 
 
            examination, her prognosis is considered poor to fair (ex. 
 
            1, p. 6).  Claimant further testified that the numbness in 
 
            her ring finger and middle finger on the left hand do not 
 
            impair her ability to perform her tasks for employer.
 
            
 
                 In conclusion, when (1) the impairment ratings of the 
 
            two physicians of 0 percent and 15 percent are weighed 
 
            together and (2) considered with claimant's credible 
 
            complaints of right shoulder, neck and back complaints and 
 
            (3) agency expertise is applied based upon the ratings of 
 
            physicians in numerous similar cases and (4) the application 
 
            of the AMA Guides is considered with their normal 
 
            application in numerous similar cases and (5) claimant's 
 
            age, education, retrainability and inability to transfer her 
 
            seniority to other employers, it is determined that claimant 
 
            has sustained a 5 percent industrial disability to the body 
 
            as a whole and is entitled to 25 weeks of permanent partial 
 
            disability benefits.
 
            
 
                 Wherefore, it is determined that the injury to the 
 
            right shoulder, neck and back, which occurred on May 8, 
 
            1990, was the cause of permanent impairment; that claimant 
 
            has sustained an industrial disability of 5 percent to the 
 
            body as a whole; and that claimant is entitled to 25 weeks 
 
            of permanent partial disability benefits.
 
            
 
                                 MEDICAL BENEFITS
 
            
 
                 The dispute is whether claimant is entitled to payments 
 
            for the chiropractic treatments of Todd C. Spurling, D.C., 
 
            for the period from November 26, 1990 and thereafter.  The 
 
            parties agreed that Dr. Spurling's itemized statement was 
 
            not correct, because it failed to show a credit for over 
 
            $900 in payments made by the insurance carrier to Dr. 
 
            Spurling.  In addition, the deputy notices that apparently a 
 
            page of itemized expenses are missing.  At the bottom of 
 
            page one, the last entry is January 16, 1991, and the 
 
            current balance due was $355.  At the beginning of page two, 
 
            the first entry is March 15, 1991, and shows a current 
 
            balance of $615.  Thus it would appear that the charges for 
 
            the dates between January 16, 1991 and March 15, 1991, which 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            added $260 to his bill, appears to be missing.  The parties 
 
            requested merely an adjudication of defendants' liability 
 
            for dates of treatment and they further agreed that they 
 
            could work out the correct charges and credits between 
 
            themselves.
 
            
 
                 The insurance carrier submitted Dr. Spurling's bill for 
 
            a peer review analysis to an organization named Encompass, 
 
            Creative Health Care Solutions.  On October 29, 1991, the 
 
            director of private review stated that the case had been 
 
            submitted to their chiropractic reviewer who determined that 
 
            Dr. Spurling's charges appeared to be reasonable.  However, 
 
            in view of the recorded diagnosis, the length of time from 
 
            initial injury to physician's treatment, and lack of 
 
            neurologic or substantive findings on examination, it was 
 
            the opinion of their examiner that four months of care from 
 
            November of 1990 to February 1991, inclusive, should be 
 
            considered as necessary (ex. 15, pp. 104-105).  For the same 
 
            reasons, it is determined by this deputy that the same 
 
            amount of chiropractic care is determined to be reasonable 
 
            medical care within the context of Iowa Code section 85.27.
 
            
 
                 Wherefore, it is determined that claimant is entitled 
 
            to recover the charges of Dr. Spurling from the time of the 
 
            initial examination on November 26, 1990 through February 
 
            1991.  The precise amount of these charges cannot be 
 
            determined because that page is missing from the itemized 
 
            statement.  Furthermore, the parties agreed that they could 
 
            work out the charges and credits between themselves.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 With respect to the injury to the left ring and long 
 
            finger which occurred on March 29, 1989, it is determined 
 
            that the injury was not the cause of permanent disability 
 
            and that claimant is not entitled to permanent disability 
 
            benefits.  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); Iowa Code section 85.34(2)(c)(d).
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
         
 
              With respect to the right shoulder, neck and back injury 
 
         which occurred on May 8, 1990, it is determined that the injury 
 
         was the cause of permanent impairment and disability.  Bodish, 
 
         257 Iowa 516, 133 N.W.2d 867; Lindahl, 236 Iowa 296 18 N.W.2d 
 
         607.
 
         
 
              It is further determined that claimant has sustained a 5 
 
         percent industrial disability to the body as a whole and is 
 
         entitled to 25 weeks of permanent partial disability benefits.  
 
         Iowa Code section 85.34(2)(u).
 
         
 
              With respect to the right shoulder, neck and back injury, it 
 
         is determined that claimant is entitled to be paid for the 
 
         services of Dr. Spurling from November 26, 1990 through the month 
 
         of February 1991.  Iowa Code section 85.27.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant twenty-five (25) weeks of 
 
         permanent partial disability benefits based upon a five (5) 
 
         percent industrial disability to the body as a whole at the 
 
         stipulated rate of three hundred forty-four and 55/100 dollars 
 
         ($344.55) per week in the total amount of eight thousand six 
 
         hundred thirteen and 75/100 dollars ($8,613.75) commencing on 
 
         September 27, 1990, as stipulated to by the parties.
 
         
 
              That these benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30. 
 
         
 
              That defendants pay to claimant or the provider of services, 
 
         Dr. Spurling, his charges for the period between November 26, 
 
         1990 to the end of February 1991, in an amount to be agreed to by 
 
         the parties with defendants being given credit for an amount to 
 
         be agreed to between the parties.
 
         
 
              That the costs of this action, including the cost of the 
 
         attendance of the court reporter at hearing, are charged to 
 
         defendants pursuant to Iowa Code section 86.40 and rule 343 IAC 
 
         4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to rule 343 IAC 3.1.
 
         
 
              Signed and filed this ____ day of September, 1992.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         
 
         
 
         Copies to:
 

 
         
 
         Page òòò 11        
 
         
 
         
 
         
 
         
 
         Mr. James Hoffman
 
         Attorney at Law
 
         Middle Road
 
         PO Box 1087
 
         Keokuk, IA  52632-1087
 
         
 
         Ms. Vicki Seeck
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         111 E 3rd 
 
         Davenport, IA  52801
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                                              51803 52501 52700
 
                                              Filed September 1, 1992
 
                                              Walter R. McManus, Jr.
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BEVERLY BEIREIS,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File Nos. 913904
 
            DUBUQUE STAMPING CO.,         :                949486
 
                                          :  
 
                 Employer,                :    A R B I T R A T I O N
 
                                          :      
 
            and                           :       D E C I S I O N
 
                                          :
 
            AMERICAN MANUFACTURERS MUTUAL,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51803
 
            Injury to fingers was not the cause of any permanent 
 
            disability and no benefits were awarded.  Defendants' 
 
            evaluator said 0 percent of impairment.  Claimant submitted 
 
            no opposing evidence. 
 
            Injury to shoulder, neck and back was the cause of 5 percent 
 
            industrial disability and claimant was awarded 25 weeks of 
 
            permanent disability benefits.  Defendants' evaluator said 0 
 
            percent impairment.  Claimant's chiropractic evaluator said 
 
            15 percent impairment.  Claimant has persistent pain and 
 
            slight loss of range of motion.  Claimant was age 38, had a 
 
            high school education, was not too retrainable, and had few, 
 
            if any, transferable skills.  Claimant's seniority allowed 
 
            her to change jobs within the plant to accommodate her own 
 
            residuals from the injury.
 
            
 
            52501 52700
 
            Claimant awarded medical benefits based on the determination 
 
            of a peer review evaluation ordered by defendants.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         LUELLA D. MUELLER,    
 
                     
 
              Claimant,                           File No. 949601
 
                     
 
         vs.                                        A P P E A L
 
                     
 
         WINNEBAGO INDUSTRIES, INC.,              D E C I S I O N
 
                     
 
              Employer,   
 
              Self-Insured,    
 
              Defendant.       
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         December 3, 1991 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         The deputy industrial commissioner, if not expressly, at least 
 
         implicitly found that the claimant was not a credible witness.  
 
         For the same reasons reviewed and discussed by the deputy, the 
 
         industrial commissioner finds the claimant was not a credible 
 
         witness.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of October, 1992.
 
         
 
         
 
         
 
         
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey, III
 
         Attorney at Law
 
         P.O. Box 679
 
         Mason City, Iowa 50401
 
         
 
         Mr. R. Jeffrey Lewis
 
         Attorney at Law
 
         2600 Ruan Center
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              9999
 
                                              Filed October 30, 1992
 
                                              Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            LUELLA D. MUELLER,    
 
                        
 
                 Claimant,                           File No. 949601
 
                        
 
            vs.                                        A P P E A L
 
                        
 
            WINNEBAGO INDUSTRIES, INC.,             D E C I S I O N
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed December 3, 
 
            1991, with short additional analysis.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LUELLA D. MUELLER,            :
 
                                          :
 
                 Claimant,                :      File No.  949601
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            WINNEBAGO INDUSTRIES, INC.,   :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Luella 
 
            D. Mueller, claimant, against Winnebago Industries, 
 
            self-insured employer, to recover benefits under the Iowa 
 
            Workers' Compensation Act as a result of an alleged injury 
 
            sustained on March 1, 1990.  This matter came on for hearing 
 
            before the undersigned deputy industrial commissioner on 
 
            November 14, 1991, in Mason City, Iowa.  The record was 
 
            considered fully submitted at the close of the hearing.  The 
 
            record in this case consists of joint exhibits 1 through 11, 
 
            claimant's exhibits 12 through 15 and 17, and defendant's 
 
            exhibits I and II.  The record also consists of claimant's 
 
            testimony and testimony from her husband, Richard Mueller; 
 
            Daniel Olson; Mark Stanton; and Boyd Eser.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            November 14, 1991, the parties have identified the following 
 
            issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on March 1, 
 
            1990, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 2.  Whether the alleged injury is a cause of temporary 
 
            and permanent disability;
 
            
 
                 3.  The extent of entitlement to weekly compensation for 
 
            temporary total disability or healing period benefits and 
 
            the time off work for which claimant seeks such benefits;
 
            
 
                 4.  The extent of entitlement to weekly compensation for 
 
            permanent disability and the commencement date for such 
 
            disability;
 
            
 
                 5.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27 and whether the expenses for 
 
            such benefits are causally connected to her alleged work 
 
            injury;
 
            
 
                 6.  Whether defendant is entitled to a credit under Iowa 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Code section 85.38 for medical expenses paid by Iowa 
 
            Benefits under claimant's husband's insurance policy;
 
            
 
                 7.  Whether claimant is entitled to interest, mileage 
 
            and costs; and
 
            
 
                 8.  Whether claimant is entitled to penalty benefits 
 
            under Iowa Code section 86.13(4).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all of the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on July 26, 1956, and completed the 
 
            twelfth grade of school in 1975.  She received certification 
 
            as a geriatric aide after completing course studies at North 
 
            Iowa Community College and worked for a short time in a 
 
            nursing home.  In 1975 she was hired by Winnebago Industries 
 
            as a window screener.  She worked in this capacity until 
 
            October 1979.  She did some babysitting after leaving 
 
            Winnebago and while raising her two daughters.  In October 
 
            1987 she returned to Winnebago Industries, part-time, on the 
 
            5 p.m. to midnight shift.  She was assigned to the Cycle-Sat 
 
            Building cleaning executive offices.  Her duties included 
 
            dusting, washing sinks, vacuuming, and general housekeeping.  
 
            In February 1990 she was transferred from Cycle-Sat into the 
 
            main plant and cleaned offices in five different buildings.  
 
            This job involved primarily vacuuming.  She continued her 
 
            babysitting service during the day while working evenings at 
 
            Winnebago.
 
            
 
                 In 1990 claimant earned $2,898.20 from her home child 
 
            care activities.  Claimant testified that she continues to 
 
            operate this service, but has reduced the hours and number 
 
            of children cared for.  
 
            
 
                 Claimant testified that she experiences muscle spasms, 
 
            headaches, and arm and shoulder pain.  She attributes her 
 
            symptoms to her work activities, particularly vacuuming, and 
 
            transporting of a cannister vacuum from the first to the 
 
            second floor while cleaning offices in the main building.  
 
            Claimant testified that on the second day of her new job she 
 
            noticed pain and aching in both arms and muscle spasms in 
 
            her neck.  By March 2, 1990, she felt intense pain and 
 
            sought medical treatment.  She was taken off work on March 
 
            2, 1990, and has not returned to Winnebago.  Claimant 
 
            testified to a limited residual functional capacity 
 
            including a minimal ability to perform household, 
 
            recreational and daily activities due to headaches, muscle 
 
            spasms, shoulder, neck and bilateral arm pain.  
 
            
 
                 The pertinent medical evidence of record indicates that 
 
            claimant has been seen on a regular basis at Park Clinic 
 
            Forest City Office by Jim McGuire, physician's assistant, 
 
            since January 1986 for an annual physical examination.  In 
 
            January and February 1986 she was also seen at the Konen 
 
            Chiropractic Clinic with various aches and pains, including 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            neck, low back, shoulder pain and headaches (exhibits 1 and 
 
            2).  
 
            
 
                 On March 2, 1990, claimant presented to Mr. McGuire 
 
            with complaints of neck and right arm pain.  She was taken 
 
            off work that day until a more thorough examination could be 
 
            conducted (ex. 4, page 1).  She was examined by Mr. McGuire 
 
            on March 5, 1990, and he diagnosed cervical strain and 
 
            spasm.  She was started on conservative therapy.  A 
 
            reevaluation on March 12, 1990, showed no improvement in her 
 
            condition and a referral was made to A.J. Wolbrink, M.D. 
 
            (ex. 2).  
 
            
 
                 Dr. Wolbrink saw claimant on March 13, 1990, at the 
 
            Park Clinic in Mason City, Iowa.  After conducting a 
 
            physical examination and reviewing x-ray results, his 
 
            impression was, "Muscular neck pain, aggravated now by her 
 
            work, but secondary to her thoracic kyphosis and 
 
            compensatory cervical lordosis."  He recommended continuing 
 
            with physical therapy, Tylenol for pain and imipramine at 
 
            night (ex. 3).  
 
            
 
                 Claimant saw Mr. McGuire on March 26 and April 2, 1990.  
 
            He noted "improving and resolving neck strain."  Mr. McGuire 
 
            felt that claimant could return to limited duty on April 2, 
 
            1990, but felt she must avoid lifting over ten pounds, 
 
            repeated bending, extension motion with her arms and 
 
            vacuuming (ex. 2, p. 4 and ex. 4, p. 6).  
 
            
 
                 Claimant presented her work release and restrictions to 
 
            employer, but jobs were not available within her 
 
            restrictions.  
 
            
 
                 Claimant saw Mr. McGuire on April 16 and April 30, 
 
            1990.  She presented with tightness in her neck muscles and 
 
            difficulty bending or turning her head.  She was instructed 
 
            to continue with medication and physical therapy.  
 
            
 
                 On May 8, 1990, claimant saw B.H. Carlson, M.D.  His 
 
            impression was cervical strain.  Claimant was instructed to 
 
            continue on the same regimen as prescribed by Mr. McGuire.  
 
            On May 12, 1990, claimant called Dr. Carlson after being 
 
            contacted by employer regarding a day job mopping floors.  
 
            He recommended that she give it a try.  However, she felt 
 
            that this job would not work out well for her because it 
 
            interfered with her daycare service and she was also 
 
            concerned that mopping and dumping a pail of water would be 
 
            too much for her neck to tolerate (ex. 2, p. 5).
 
            
 
                 On June 6, 1990, claimant saw K.B. Washburn, M.D.  
 
            Claimant related that while she has been unable to return to 
 
            work, she has been doing housework such as dishes, making 
 
            beds, picking up around the house, doing some laundry and 
 
            cooking.  Dr. Washburn agreed with Dr. Wolbrink's assessment 
 
            that claimant had a preexisting condition, namely, thoracic 
 
            kyphosis with resultant cervical lordosis, aggravated by 
 
            work activity.  He recommended an MRI of the cervical spine.  
 
            This was performed on June 8, 1990, and revealed a, "Small 
 
            central disc herniation C5-6 and slight central disc 
 
            protrusion, C4-5." (ex. 5).
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant continued to have headaches and occasional 
 
            pain into her arms.  Therefore, Dr. Washburn felt that a 
 
            neurological evaluation should be performed and he referred 
 
            her to David W. Beck, M.D. (ex. 3, p. 2).  
 
            
 
                 Dr. Beck saw claimant on June 20, 1990, for evaluation.  
 
            On examination, she had full range of motion of her neck, 
 
            but pain on motion.  She had no motor loss and her reflexes 
 
            were symmetric and intact.  Cervical spine x-rays taken on 
 
            June 6, 1990, revealed no abnormalities.  Dr. Beck indicated 
 
            that, in his opinion, claimant's neck spasms and headaches 
 
            are the result of the small disc protrusion at C5-6.  He 
 
            recommended a home traction unit for reduction of the disc 
 
            bulge and relief of her symptoms.  
 
            
 
                 Claimant saw Dr. Beck for follow-up examination on July 
 
            11, 1990.  She reported improvement in muscle spasms but, 
 
            continued headaches.  He prescribed Midrin along with 
 
            imipramine (ex. 6, p. 2).
 
            
 
                 Claimant continued to see Dr. Washburn and on January 
 
            15, 1991, showed no improvement in her symptoms (ex. 3, p. 
 
            4).  She saw Dr. Beck on January 28, 1991, and he reported, 
 
            "She is better than when I last saw her in July.  She knows 
 
            what things aggravate her and tries to avoid them."  He 
 
            recommended that she avoid repetitive movement of the arms 
 
            and neck (ex. 8).  
 
            
 
                 On February 14, 1991, claimant saw Dr. Washburn for a 
 
            final evaluation.  At this time, he felt that she was not 
 
            eligible for a work hardening program because of the 
 
            possibility of rupturing the disc in her neck.  In an 
 
            eight-hour work day, he imposed restrictions including 
 
            sitting for two hours at one time before getting up and 
 
            moving around; standing and walking for one hour at a time; 
 
            lifting and carrying up to two pounds up to one-third of the 
 
            day; pushing and pulling a wheeled cart with 25 pounds in it 
 
            up to one third of the day; occasional bending and stooping; 
 
            reaching above shoulder level with about two pounds weight; 
 
            no strong pinching, grasping, squeezing or repetitive 
 
            motions with her arms; and no driving more than 20 to 30 
 
            miles at one time.  
 
            
 
                 Based on these restrictions, limitations of motion and 
 
            underlying disc disease, Dr. Washburn indicated that 
 
            claimant has 5 percent impairment to the body as a whole 
 
            (ex. 3, p. 4 and ex. 9).
 
            
 
                 On February 27, 1990, Dr. Beck reported to claimant's 
 
            attorney as follows:
 
            
 
                    It is my opinion that the work activities at 
 
                 Winnebago Industries as a cleaning person 
 
                 aggravated the condition for which I evaluated 
 
                 her.  She does have a history of neck pain on and 
 
                 off prior to this, and she states in the record 
 
                 that it is similar to the pain she has had on and 
 
                 off for the past four years.  However, this is 
 
                 worse.  Therefore, I think she aggravated a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 pre-existing condition.
 
            
 
            (claimant's exhibit 10)
 
            
 
                 Dr. Beck indicated that in view of claimant's normal 
 
            neurological findings with neck pain, the extent of her 
 
            impairment is about 3 percent (ex. 10).  
 
            
 
                 On March 26, 1991, claimant presented to Richard W. 
 
            Haas, D.C., with complaints of pain and stiffness in her 
 
            neck, arm pain, tingling sensations in her feet, and 
 
            headaches.  At this time, Dr. Haas initiated chiropractic 
 
            treatment which continued through May 1991 and which, 
 
            according to claimant, provided no relief or improvement in 
 
            her condition.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on March 1, 
 
            1990, which arose out of and in the course of her 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967).
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 
 
            Iowa 352, 154 N.W.2d 128. 
 
            
 
                 The supreme court of Iowa in Almquist v. Shenandoah 
 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
 
            discussed the definition of personal injury in workers' 
 
            compensation cases as follows:
 
            
 
                 
 
            
 
                 While a personal injury does not include an 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 occupational disease under the Workmen's 
 
                 Compensation Act, yet an injury to the health may 
 
                 be a personal injury.  [Citations omitted.]  
 
                 Likewise a personal injury includes a disease 
 
                 resulting from an injury....The result of changes 
 
                 in the human body incident to the general 
 
                 processes of nature do not amount to a personal 
 
                 injury.  This must follow, even though such 
 
                 natural change may come about because the life has 
 
                 been devoted to labor and hard work.  Such result 
 
                 of those natural changes does not constitute a 
 
                 personal injury even though the same brings about 
 
                 impairment of health or the total or partial 
 
                 incapacity of the functions of the human body. 
 
            
 
                    ....
 
            
 
                 
 
                 A personal injury, contemplated by the Workmen's 
 
                 Compensation Law, obviously means an injury to the 
 
                 body, the impairment of health, or a disease, not 
 
                 excluded by the act, which comes about, not through the 
 
                 natural building up and tearing down of the human body, 
 
                 but because of a traumatic or other hurt or damage to 
 
                 the health or body of an employee.  [Citations 
 
                 omitted.]  The injury to the human body here 
 
                 contemplated must be something, whether an accident or 
 
                 not, that acts extraneously to the natural processes of 
 
                 nature, and thereby impairs the health, overcomes, 
 
                 injures, interrupts, or destroys some function of the 
 
                 body, or otherwise damages or injures a part or all of 
 
                 the body.
 
            
 
                 On February 19, 1990, claimant commenced her new job 
 
            cleaning offices in the main Winnebago plant.  She testified 
 
            that this job involved only vacuuming and was not as 
 
            diversified as the job she had in Cycle-Sat.  She vacuumed 
 
            offices in five different buildings during the five and 
 
            one-half hours she worked.  She stated that she used both a 
 
            regular commercial upright-type vacuum as well as a round 
 
            canister-type vacuum.  She alleged that on the first night 
 
            of her new job, she had to carry a canister vacuum up one 
 
            flight of stairs because there was no vacuum available on 
 
            the second floor.  The second night at work, she experienced 
 
            pain and aching in her arms, muscle spasms and headaches.  
 
            Eight days later she informed her supervisor, Daniel Olson, 
 
            that she needed to see a doctor because she was in so much 
 
            pain.  In her deposition she stated that she told her 
 
            supervisor that her arms were hurting and she had muscle 
 
            spasms, but did not tell him that she had to carry the 
 
            canister vacuum up stairs (ex. 15, p. 91).  
 
            
 
                 Claimant has the burden of proof to show by a 
 
            preponderance of the evidence that she received an injury 
 
            which arose out of and in the course of her employment with 
 
            employer.  Arising out of implies some causal relation 
 
            between the employment and the injury.  Volk v. 
 
            International Harvester Co.,  252 Iowa 298,106 N.W.2d 649 
 
            (1960).
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Claimant has not met her burden of proof.  She 
 
            testified that she worked alone in the building at night and 
 
            no one witnessed the event which allegedly led to her neck 
 
            injury.  Claimant's supervisor, Daniel Olson, testified that 
 
            she complained to him about her new job the very first day 
 
            she was moved to the main plant.  She felt that it was a 
 
            dirty place to work and she resented the change in duties.  
 
            She mentioned to him that she was getting a doctor's 
 
            statement in order to go on medical leave, but would be 
 
            applying for other jobs while on leave.  He stated that in 
 
            his experience, employees do not regularly carry canister 
 
            vacuums up stairs.  Occasionally, vacuums are carried down 
 
            stairs.  Mr. Olson testified that he noticed a change in 
 
            claimant's attitude after she was moved to the main 
 
            building.  She began coming late to work and constantly 
 
            complained about the working conditions.  He also stated 
 
            that the job in the main plant was lighter work than that in 
 
            Cycle-Sat.  Mr. Olson stated that claimant never told him 
 
            that she needed to see a doctor because she was having 
 
            severe pain in her arms, hands, neck, and shoulders.  
 
            However, she did tell him that her husband was going to 
 
            check with personnel as to whether quitting her job without 
 
            giving two weeks notice would effect her chances of 
 
            returning.  
 
            
 
                 Boyd Eser testified that he called claimant at home 
 
            during the first week she had changed jobs because he was 
 
            told that she was upset about the move.  During the course 
 
            of the conversation, she complained about the dirty 
 
            atmosphere of the main plant and threatened to quit.  She 
 
            indicated that she was being treated unfairly.  At the time 
 
            of this conversation, she never mentioned any physical 
 
            complaints.  
 
            
 
                 In rebuttal testimony claimant denied all of the 
 
            allegations made by Mr. Olson and Mr. Eser.  Her husband 
 
            also denied that he inquired about the effect of her 
 
            quitting without notice on her chances of being rehired by 
 
            the company.  
 
            
 
                 Claimant's credibility is an issue in this case.  
 
            Claimant has presented no corroborating evidence supporting 
 
            a work-related injury with employer.  The record does show 
 
            that claimant had a preexisting medical condition of 
 
            thoracic kyphosis with resultant cervical lordosis resulting 
 
            in muscle aching.  Dr. Beck attributed claimant's neck 
 
            spasms and headaches to a small disc protrusion found at 
 
            C5-6.  Dr. Beck further opined that claimant's work 
 
            activities at Winnebago Industries aggravated this 
 
            condition.  However, Dr. Beck and all of the other 
 
            physicians who treated and examined claimant, only knew what 
 
            she told them.  She did not disclose her continuing child 
 
            care activities.  Their opinions as to causal connection are 
 
            not relevant if claimant cannot demonstrate that she 
 
            sustained a work-related injury which aggravated a 
 
            preexisting condition.  Claimant's complaints coincidentally 
 
            surfaced at the same time that she was transferred from one 
 
            job to another.  There is no evidence in the record which 
 
            supports claimant's description of the injury.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 It is clear that claimant engaged in other activities, 
 
            outside of work, which could have aggravated her condition.  
 
            Specifically, claimant operated a day care service in her 
 
            home.  She provided eight hours of care to infants between 
 
            the ages of one and four.  She performed activities such as 
 
            lifting, turning, feeding, and all other activities 
 
            associated with routine child care (ex. 15, p. 14).  It is 
 
            just as conceivable that claimant could have aggravated her 
 
            preexisting condition by performing the physical activities 
 
            required of an active child care worker.  She has engaged in 
 
            this business since 1979 and only recently reduced her hours 
 
            from eight to six per day.  
 
            
 
                 Claimant's complaints appear to be far out of 
 
            proportion to the clinical and laboratory findings in the 
 
            record.  When examined by Dr. Beck on June 20, 1990, she had 
 
            full range of motion of her neck, but pain on motion.  
 
            X-rays of the cervical spine showed no abnormalities.  An 
 
            MRI scan showed a small disc protrusion at C5-6.  Dr. 
 
            Washburn gave her significant restrictions only because she 
 
            subjectively complained that everything she does aggravates 
 
            her pain.  Dr. Beck indicated that she is normal 
 
            neurologically, but has subjective complaints of pain.  
 
            Therefore, he gave her a rating of only 3 percent.  
 
            
 
                 After carefully considering the total evidence in this 
 
            case, the undersigned concludes that claimant has not met 
 
            her burden of proving by a preponderance of the evidence 
 
            that she sustained an injury on March 1, 1990, which arose 
 
            out of and in the course of her employment with employer.  
 
            There is no direct chain of causation apparent between 
 
            claimant's alleged work incident and her current disability.  
 
            This issue is dispositive of the entire case and further 
 
            analysis is unnecessary. 
 
            
 
                                        
 
            
 
                                        
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That claimant take nothing from this proceeding.
 
            
 
                 The parties shall pay their own costs in this action.
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert S. Kinsey, III
 
            Attorney at Law
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            214 N. Adams
 
            PO Box 679
 
            Mason City, IA  50401
 
            
 
            Mr. R. Jeffrey Lewis
 
            Attorney at Law
 
            2600 Ruan Ctr
 
            Des Moines, IA  50309
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                              51402.30
 
                                              Filed December 3, 1991
 
                                              Jean M. Ingrassia
 
            
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LUELLA D. MUELLER,            :
 
                                          :
 
                 Claimant,                :      File No.  949601
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            WINNEBAGO INDUSTRIES, INC.,   :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            51402.30
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that she sustained an injury on March 1, 1990, which arose 
 
            out of and in the course of her employment with employer.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         SANDRA PERRY,                 :
 
                                       :        File No. 949644
 
              Claimant,                :
 
                                       :     A R B I T R A T I O N
 
         vs.                           :
 
                                       :        D E C I S I O N
 
         MERCY HOSPITAL MEDICAL CNTR., :
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Sandra Perry, against her self-insured employer, Mercy Hospital 
 
         Medical Center, to recover benefits under the Iowa Workers' 
 
         Compensation Act as a result of an injury sustained on April 11, 
 
         1990.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner at Des Moines, Iowa on July 30, 
 
         1992.  A first report of injury has been filed.  The record con
 
         sists of the testimony of claimant; of Robert Perry; of Grace C. 
 
         Johnson; and of Tamara Singleton; as well as joint exhibits 1 
 
         through 21.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the hearing assignment order, the prehearing 
 
         report and the oral stipulation of the parties, the parties have 
 
         stipulated to the following:
 
         
 
              1.  That claimant's gross weekly wage was $252.40 and that 
 
         claimant was married and entitled to two exemptions at the time 
 
         of her injury resulting in a weekly compensation rate of $168.11.
 
         
 
              2.  That claimant did receive an injury arising out of and 
 
         in the course of her employment on April 11, 1990.
 
         
 
              3.  That a causal relationship exists between claimant's 
 
         injury and temporary total disability with claimant entitled to 
 
         temporary total disability benefits from April 27, 1990 through 
 
         May 15, 1990 and from October 25, 1990 through February 10, 1991.
 
         
 
              4.  That the commencement date for any permanent partial 
 
         disability benefits due claimant is February 11, 1991.
 
         
 
     
 
         
 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         Issues remaining to be decided are:
 
         
 
              1.  Whether a causal relationship exits between claimant's 
 
         injury and claimed permanent disability; and,
 
         
 
              2.  The extent of any permanent disability entitlement.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered the 
 
         evidence, finds:
 
         
 
              Claimant is a 47-year-old married lady who has worked in 
 
         non-skilled clerical and food service industries jobs.  Her 
 
         primary work history has been in child care, however.  Claimant 
 
         has a two year degree as a child development specialist from Des 
 
         Moines Area Community College and has also accumulated a number 
 
         of continuing education credits in that area.  Claimant began 
 
         full time work at the Mercy Hospital Child Development Center in 
 
         April 1989 working in the 18 month to 2-year-old room.  She cared 
 
         for six 2-year-olds.  She engaged in all activities required to 
 
         care for toddlers, including lifting and carrying them, diaper
 
         ing, fixing meals, storytelling and reading and engaging them in 
 
         small and large motor activities.
 
         
 
              Claimant was injured on April 11, 1990 in the course of her 
 
         employment when she attempted to catch a child who had fallen 
 
         from a chair behind her.  The child fell over claimant's left 
 
         shoulder; claimant fell to her right, twisting her back.  
 
         Claimant felt pain in her back, in both hips and down the poste
 
         rior aspect of her left leg.  David D. Berg, M.D., of Iowa 
 
         Occupational Medicine, examined claimant on the injury date.  He 
 
         found claimant extremely tender over the L4-5 and L5-S1 disc 
 
         spaces and soft tissues bilaterally.  Straight leg raising was 
 
         positive on the left at 30 degrees and on the right at 45 
 
         degrees.  No neuro-motor or vascular deficits were noted; DTR's 
 
         were positive 2/4 bilaterally.
 
         
 
              Dr. Berg prescribed Motrin and took claimant off work.  
 
         Claimant returned to light duty work in May 1990 serving as a 
 
         receptionist for the Child Development Center.  When in pain, 
 
         claimant answered the phone in the Center's lounge while lying on 
 
         the floor.  Claimant subsequently returned to her regular job in 
 
         fall.  She voluntarily switched to working with 18-month-olds in 
 
         a head teacher's job with better hours.  Claimant was then using 
 
         a TENS unit; she reported she turned it up after several hours of 
 
         work.  Claimant went off work again in October 1990.
 
         
 
              James L. Blessman, M.D., recommended claimant undergo pain 
 
         center treatment.  Claimant entered the Mercy Pain Center for 
 
         four weeks in January - February 1991.  Claimant was released for 
 
         light duty on February 11, 1991 with a 20 pound, floor to waist 
 
         lifting restriction.  Subsequent to that work release claimant 
 
         returned to work in a light duty capacity in Mercy's radiology 
 
         department.  Claimant secured written medical reports to X-ray 
 
         folder jackets.
 
         
 
              Claimant reported that as a result of her pain she began to 
 
         use personal leave rather than stay in her light duty job.  On 
 
         March 14, 1991, claimant was terminated for failure to call in on 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         three consecutive dates.  Claimant indicated that her termination 
 
         resulted from a miscommunication with Tamara Singleton, R.N., of 
 
         Mercy Employee Health Services in that claimant had indicated to 
 
         Ms. Singleton that claimant would be absent Thursday through 
 
         Friday meaning from Thursday, March 7, 1991 through Friday of the 
 
         following week.  Nurse Singleton recorded that claimant would be 
 
         absent on Thursday, March 7, 1991 and Friday, March 8, 1991.  
 
         Claimant subsequently grieved her termination.  Her grievance was 
 
         denied at the first level.  She did not further pursue the 
 
         grievance.  It is found that defendant employer did not act 
 
         improperly in terminating claimant and did not terminate claimant 
 
         on account of her work injury.  
 
         
 
              Claimant is not now working.  Claimant reported to Donna J. 
 
         Bahls, M.D., on April 23, 1991 that claimant is not interested in 
 
         seeking full time work since her husband is retired and does not 
 
         want her to work full time.  Claimant also then reported that she 
 
         has no financial need to work and so testified at time of hear
 
         ing.  It is expressly found that claimant is significantly lack
 
         ing in motivation to work.  
 
         
 
              Claimant continues to report severe pain.  Claimant uses a 
 
         massaging vibrator for pain; claimant uses a TENS unit for the 
 
         pain; claimant uses heat and ice for pain.  Claimant also does 
 
         water exercises two to three times per week in Osceola.  Claimant 
 
         no longer vacuums, sweeps, or does general housecleaning.  
 
         Claimant does not drive for greater than 20 miles.  Claimant 
 
         reported that on her worse days she stays in bed, takes pain 
 
         medication and uses a heating pad and a special pillow.  On 
 
         moderate days she naps; on good days she has discomfort only but 
 
         is not pain free.
 
         
 
              Claimant has had a CT scan of the lumbosacral spine, MRI of 
 
         the lumbosacral spine and an EMG of the left lower extremity.  
 
         All three tests were within normal limits.
 
         
 
              Dana Simon, M.D., on December 7, 1990, indicated that 
 
         claimant had clinical evidence of left L5 radiculopathy if not Sl 
 
         radiculopathy although there was no testing evidence for such.  
 
         Dr. Simon administered an epidermal steroid injection.  Claimant 
 
         indicated some relief from such in that she was able to ride in 
 
         the car for approximately an hour after such.  
 
         
 
              William R. Boulden, M.D., an orthopedic surgeon, first saw 
 
         claimant on May 15, 1990.  His impression was of mechanical back 
 
         pain with referred left leg pain.  He opined that claimant's 
 
         signs and symptoms were not consistent with a herniated disc.  
 
         Dr. Boulden and Thomas W. Bower, LPT, subsequently examined 
 
         claimant in July 1991.  On July 22, 1991, Mr. Bower and Dr. 
 
         Boulden opined that there were no objective reasons for 
 
         claimant's ongoing complaints.  They characterized claimant as 
 
         pain fixated and opined she had no permanent partial impairment 
 
         as a result of her work injury.  In his deposition of April 20, 
 
         1992, Dr. Boulden opined that claimant's complaints of thoracic 
 
         back pain in October 1990 did not relate to the April 1990 injury 
 
         and low back complaints since claimant had no complaints of tho
 
         racic back pain until approximately two months after she was 
 
         initially seen.  Dr. Boulden further opined that claimant's left 
 
         arm complaints of April 1991 were not related to the April 1990 
 
         injury for similar reasons.  Dr. Boulden stated nothing was 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         "surgically wrong" with claimant's back and that she did not need 
 
         further medical treatment.  He opined that claimant reached maxi
 
         mum medical improvement in July 1990.
 
         
 
              On December 12, 1990, a neurologist to whom Dr. Berg had 
 
         referred claimant, S. Randy Wilson, M.D., opined that a direct 
 
         relationship existed between claimant's chronic lumbosacral 
 
         strain and her employment injury.  Dr. Wilson declined to give an 
 
         opinion as to permanent partial impairment.
 
         
 
              Grace C. Johnson, licensed physical therapist, initially 
 
         evaluated claimant on October 31, 1990.  On evaluation, claimant 
 
         under Waddell's test showed positive signs for symptom magnifica
 
         tion illness.
 
         
 
              Ronald C. Evans, D.C., evaluated claimant on April 13, 1992.  
 
         Dr. Evans indicated that claimant's work injury had produced 
 
         moderate to severe left lumbosacral spinal sprain and that 
 
         claimant then presented with chronic lumbosacral myofascitis.  He 
 
         noted that some sciatica was present although specific nerve root 
 
         involvement could not be identified.  Claimant scored six on the 
 
         Borg pain scale index.  Dr. Evans felt that score indicated 
 
         either severe pathology or symptom magnification behavior.  
 
         Claimant had a score of three on the Waddell symptom magnifica
 
         tion test.  Given such, Dr. Evans concluded that symptom magnifi
 
         cation existed.  Dr. Evans reported that great discrepancies 
 
         existed between claimant's tested and observed spinal function.  
 
         He indicated that claimant's range of motion losses did not 
 
         equate with any factor other than muscular pain and "patient 
 
         fear."  Some lost tone in the left leg was noted but not true 
 
         atrophy.  The left hip had mild signs of capsulitis but the joint 
 
         itself functioned well.  Dr. Evans assigned claimant a permanent 
 
         partial impairment rating of five percent of the body as a whole 
 
         under the AMA Guides for lumbosacral myofascitis.  Dr. Evans 
 
         characterized such as "global soft tissue rating for the low 
 
         back."  Dr. Evans opined:
 
         
 
                 There is no medical reason to believe the patient is 
 
              likely to suffer injury, harm, or further medical 
 
              impairment by engaging is [sic] usual activities of 
 
              daily living or other activities necessary to meet per
 
              sonal, social or occupational demands.
 
         
 
                 There is no medical reason to believe other restric
 
              tions or accommodations are necessary to help the 
 
              patient carry out usual activities or meet personal, 
 
              social and occupational demands.
 
         
 
         (Exhibit 17, page 7)
 
         
 
              Dr. Boulden's opinion that claimant has no permanent partial 
 
         impairment related to her April 11, 1990 work injury is accepted 
 
         over Dr. Evans' opinion and assignment of a five percent perma
 
         nent partial impairment rating.  Dr. Boulden is a board certified 
 
         orthopedic surgeon who participated in claimant's treatment sub
 
         sequent to her work injury.  Dr. Evans is a chiropractic physi
 
         cian who saw claimant for evaluation only.  Given such, Dr. 
 
         Boulden's opinion is entitled to greater weight than is Dr. 
 
         Evans' opinion.  Furthermore, Dr. Boulden's opinion that claimant 
 
         has no permanent partial impairment causally related to her work 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         injury is more consistent with Dr. Evans' overall findings that 
 
         claimant engages in symptom magnification and with Dr. Evans' 
 
         belief that claimant is not likely to suffer injury, harm or med
 
         ical impairment by engaging in her usual activities of daily 
 
         living or other activities necessary to meet personal, social or 
 
         occupational demands and his belief that claimant needs no fur
 
         ther restrictions or accommodations to engage in usual activities 
 
         of daily living or meet routine life demands.
 
         
 
              S. Randy Winston, M.D., in December 1990, opined that causal 
 
         relationship existed between claimant's diagnosis of chronic lum
 
         bosacral strain and her employment.  That statement is not suffi
 
         cient to carry claimant's burden of establishing a causal rela
 
         tionship between her work injury and claimed permanent disabil
 
         ity, however.  The record does not demonstrate that Dr. Winston 
 
         had the benefit of having reviewed claimant's full history and 
 
         treatment including the information regarding symptom magnifica
 
         tion presented in the record as a whole.  For that reason, his 
 
         opinion is entitled to lesser weight.
 
         
 
              Claimant is expressly found to be an individual who engages 
 
         in symptom magnification.  It is expressly found that claimant 
 
         has few objective findings to support her continuing complaints 
 
         of pain.  It is further expressly found that the record does not 
 
         reflect that claimant's work injury either aggravated or lit up 
 
         her propensity for symptom magnification such that claimant 
 
         should be entitled to any recovery on account of a causal rela
 
         tionship between the work injury and her propensity for symptom 
 
         magnification.  Medical evidence on this causation issue was not 
 
         presented.  It appears that claimant's work injury, at best, pro
 
         vided claimant a stage for displaying her symptom magnification 
 
         behavior.  Recovery is not committed where employment merely pro
 
         vides a stage for a nervous injury.  Newman v. John Deere Ottumwa 
 
         Works of Deere & Co., 372 N.W.2d 199 (1985).
 
         
 
              It is expressly found that claimant has not established the 
 
         requisite causal connection between her April 11, 1990 work 
 
         injury and claimed permanent partial disability.  In that the 
 
         requisite causal connection does not exist, no permanent partial 
 
         disability entitlement exists.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the disabil
 
         ity on which the claim is based.  A cause is proximate if it is a 
 
         substantial factor in bringing about the result; it need not be 
 
         the only cause.  A preponderance of the evidence exists when the 
 
         causal connection is probable rather than merely possible.  
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); 
 
         Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert testimony.  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on the 
 
         causal connection between the injury and the disability.  The 
 
         weight to be given to any expert opinion is determined by the 
 
         finder of fact and may be affected by the accuracy of the facts 
 
         relied upon by the expert as well as other surrounding circum
 
         stances.  The expert opinion may be accepted or rejected, in 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
         (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
         1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, its mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956).  If the 
 
         claimant had a preexisting condition or disability that is mate
 
         rially aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v. 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
         Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961).
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by the 
 
         industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 
         injuries were fresh; his arrangement as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other fac
 
         tors which bear upon the weight and value of the physician's tes
 
         timony.  Both parties may bring all this information to the 
 
         attention of the fact finder as either supporting or weakening 
 
         the physician's testimony and opinion.  All factors go to the 
 
         value of the physician's testimony as a matter of fact not as a 
 
         matter of law.  Rockwell Graphic Systems, Inc. v. Prince, 366 
 
         N.W.2d 176, 192 (Iowa 1985).
 
         
 
              As is noted in the above findings of fact, claimant has vir
 
         tually no objective findings to substantiate her claim of an 
 
         ongoing permanent disability on account of her April 11, 1990 
 
         work injury.  Claimant's continuing subjective complaints and her 
 
         tendency to symptom magnify are insufficient to establish the 
 
         existence of a medical condition significant enough to be consid
 
         ered a permanent disability as contemplated in the workers' com
 
         pensation law.  Claimant has not established a causal relation
 
         ship between her injury and her claimed permanent disability.
 
         
 
              In that permanent disability must exist prior to an award of 
 
         permanent partial disability benefits, claimant has likewise not 
 
         established any entitlement to an award of permanent partial dis
 
         ability benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing from this proceeding.
 
         
 
              Claimant pay costs of this proceeding pursuant to rule 343 
 
         IAC 4.33.
 
         
 
         
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
              Signed and filed this ______ day of ____________, 1992.
 
         
 
              
 
         
 
              
 
              
 
                                       ______________________________
 
                                       HELENJEAN M. WALLESER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         West Bank Building  STE 212
 
         1601 22nd Street
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. Stephen W. Spencer
 
         Attorney at Law
 
         218 6th Ave  STE 300
 
         P O Box 9130
 
         Des Moines, Iowa  50306
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108; 1108.20
 
                                                 Filed August 19, 1992
 
                                                 HELENJEAN M. WALLESER
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            SANDRA PERRY,                 :
 
                                          :        File No. 949644
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            MERCY HOSPITAL MEDICAL CNTR., :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            1108; 1108.20
 
            No causal connection found between claimant's minor work 
 
            injury and her continuing complaints.  Evidence established 
 
            claimant was a symptom magnifier whose complaints were 
 
            inconsistent with objective findings.  Work injury did not 
 
            lite up claimant's propensity for symptom magnification but 
 
            merely provided a stage for displaying it under Newman v. 
 
            John Deere Ottumwa Works of Deere & Co., 372 N.W.2d 199 
 
            (Iowa 1985).
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JAMES PAYTON,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 949693
 
            FARNER-BOCKEN COMPANY,        :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ROYAL INSURANCE,              :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by James 
 
            Payton against his former employer based upon an admitted 
 
            injury of December 7, 1989.  The primary disputed issue is 
 
            claimant's claim for permanency benefits.  He contends that 
 
            he is permanently, totally disabled and relies upon the 
 
            odd-lot doctrine.  Claimant also seeks to recover the 
 
            medical expenses shown in exhibits 9, 10, 11, and 12.
 
            
 
                 The case was heard at Cedar Rapids, Iowa, on May 16, 
 
            1994.  The record consists of joint exhibits 1 through 12; 
 
            defendants' exhibits A through D and testimony from James 
 
            Payton, Clyde Satterly and Charles Perrin.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made:
 
            
 
                 James Payton fell while at work on December 7, 1989.  
 
            He initially sought chiropractic care and then received care 
 
            from Alan C. Robb, M.D., a family practitioner.  (exhibit 
 
            3).  Claimant continued to be symptomatic.  He was evaluated 
 
            by John Walker, M.D.  Dr. Walker found claimant to be very 
 
            tender but the neurological examination was normal.  The 
 
            diagnosis was a sprain of the left and right sacroiliac 
 
            joints and of L3 through S1.  Treatment in the nature of 
 
            chiropractic adjustments and other physical therapy was 
 
            recommended together with a low back support.  (ex. 5).  
 
            According to claimant he saw Dr. Walker four or five times 
 
            but did not recover.
 
            
 
                 Starting in July 1990 claimant began treating with 
 
            James B. Worrell, M.D., a neurologist.  Dr. Worrell also 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            found claimant to be very tender in the lumbosacral area but 
 
            to have a normal neurologic examination.  He diagnosed 
 
            severe lumbar strain syndrome.  X-rays showed only minimal 
 
            degenerative changes.  (ex. 6, pages 1-2).  On April 10, 
 
            1991, Dr. Worrell noted that claimant reported his pain to 
 
            be in the range of 1 to 4 on a scale of 10.  Claimant had 
 
            been extensively tested and studied at the University of 
 
            Iowa Hospital Spine Center but nothing had produced 
 
            significant improvement.  An MRI was conducted on August 31, 
 
            1990 which showed no significant findings.  An EMG was also 
 
            interpreted as normal.  (defendants' ex. D3, pp. 15-16; def. 
 
            ex. D5, p. 43).  A functional capacity evaluation conducted 
 
            at the University of Iowa on June 20, 1990, showed claimant 
 
            to be capable of performing nonrepetitive lifting in the 
 
            range of 20 pounds and lifts using only his arms in the 
 
            range of 30 pounds.  (def. ex. D5, p. 40).  Dr. Worrell 
 
            reported that claimant could return to work with 
 
            restrictions of lifting in the range of 20 to 25 pounds, 
 
            nonrepetitively.  (ex. 6, p. 3).  By November 6, 1991, Dr. 
 
            Worrell reported that claimant has myofascial syndrome 
 
            related to the December 1989 injury.  He indicated that 
 
            treatment had been totally unsuccessful, that claimant did 
 
            not have a herniated disc.  He assigned a permanent 
 
            impairment rating of 6 percent of the body as a whole.  (ex. 
 
            6, p. 8; def. ex. D2, p. 13).  
 
            
 
                 Claimant was sent to therapy at the Bettendorf physical 
 
            therapy center in 1991.  He produced inconsistent results 
 
            which were interpreted as indicating symptom magnification.  
 
            (def. ex. D1).  In 1992 claimant was seen by Saturino 
 
            Ortega, M.D., and diagnosed with a depressive disorder.  Dr. 
 
            Ortega attributed the depressive problem to the injury, back 
 
            pain, ineffective treatment, inability to work, and 
 
            financial problems.  (ex. 2, pp. 1-4).  The diagnosis of 
 
            depression was confirmed by Kenneth J. Herrmann, M.D.  (ex. 
 
            8, pp. 11-12).  Claimant was treated successfully with 
 
            chemotherapy and psychotherapy.  His medication was 
 
            discontinued.  In July 1993 Dr. Ortega reported that there 
 
            was no evidence of depression in that claimant had been 
 
            doing quite well without being on any anti-depressant.  
 
            (def. ex. D7).  
 
            
 
                 Since the injury claimant was off work for a 
 
            substantial period of time.  There were efforts to return 
 
            him to work which ultimately proved unsuccessful.  About the 
 
            only function which claimant desired to perform was placing 
 
            tax stamps on cigarettes.  Claimant ceased going to work 
 
            when he was assigned to refurbish a rest room.  Claimant did 
 
            not attempt to perform any part of the project.  
 
            
 
                 This case presents a situation in which there are 
 
            minimal objective findings of significant physical injury 
 
            yet there are subjective symptoms which seem to be out of 
 
            proportion to the objective medical findings.  The only 
 
            objective medical finding which has been found is minimal 
 
            degenerative changes.  (ex. 6, pp. 1-2).  Bakkiam Subbiah, 
 
            M.D., who evaluated claimant in November 1991 felt that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant had mechanical lower back pain that was most likely 
 
            secondary to osteoarthritic changes in the lower back.  He 
 
            recommended that claimant resume work and over a period of 
 
            six to eight weeks he should be back into his normal work 
 
            routine.  (def. ex. D4, pp. 19-24).  Simply stated, there is 
 
            no objective basis in the record of this case which 
 
            indicates any substantial physical disability associated 
 
            with the condition of claimant's back.  The undersigned does 
 
            not doubt, however, that claimant experiences pain in the 
 
            range of 1 to 4 on a scale of 10 with regard to his back.  
 
            It is likely that he has constant pain regardless of whether 
 
            or not he is particularly active.  
 
            
 
                 Claimant also developed a depressive disorder as a 
 
            result of the injury and its consequences.  Fortunately for 
 
            claimant the disorder was promptly and effectively treated.  
 
            There is no indication that the depression continues or that 
 
            it has produced any permanent disability.  The evidence in 
 
            the record is to the contrary.
 
            
 
                 It is therefore found that the injury of December 7, 
 
            1989 produced a myofascial syndrome in claimant's low back 
 
            which causes him pain and that the condition is not likely 
 
            to resolve.  It also produced a depressive disorder which 
 
            was not permanent.  Claimant remains capable of being 
 
            gainfully employed within the restrictions recommended by 
 
            Dr. Worrell and other health care providers.  He is not 
 
            capable of performing repetitive activity with his back and 
 
            needs to be able to change position approximately every 30 
 
            minutes. 
 
            
 
                 Exhibit 11 contains a number of prescriptions.  It is 
 
            found that those prescribed by Drs. Ortega and Worrell were 
 
            for treatment of this injury.  Those prescribed by Dr. Robb 
 
            were not incurred in providing treatment for this injury.  
 
            The charges in exhibit 9 are found to have been incurred in 
 
            treating the psychological injury and depression.  It is 
 
            noted that in joint exhibit 12 the diagnosis made by Dr. 
 
            Robb included depression.  It appears that it was this 
 
            diagnosis which led claimant into the course of care which 
 
            cured his depression.  Accordingly, it is found that the 
 
            charges in exhibit 12 were produced as a result of the 
 
            injury.  Claimant testified at hearing that the pain center 
 
            treatment which had been provided for this injury 
 
            recommended that he obtain dumbbells to use for exercise.  
 
            No corroboration of that testimony appears in the record of 
 
            the case.  It cannot be determined whether the dumbbells 
 
            were for his general fitness and well-being or whether they 
 
            were for treatment of the back injury itself.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 At the time of hearing it was indicated that the 
 
            entitlement to healing period benefits was not in dispute.  
 
            The dispute deals with the permanency claim and medical 
 
            expenses.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 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.  If the 
 
            employer fails to produce such evidence and if the trier of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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.
 
            
 
                 It was stipulated that claimant fell on December 7, 
 
            1989.  Thereafter he went into an extended course of medical 
 
            care and absences from work, none of which seemed to improve 
 
            the condition of his back.  His subjective symptoms have not 
 
            been corroborated by objective medical findings, even though 
 
            extensive and appropriate diagnostic testing has been 
 
            performed.  The only diagnosis which has been made is of a 
 
            myofascial syndrome or a strain.  Nevertheless, the 
 
            condition has proved to be permanent.  The activity 
 
            restrictions which have been imposed are based upon 
 
            functional capacity evaluations.  There are a number of 
 
            indications in the record that the claimant has not been 
 
            particularly frank and sincere about his efforts to resume 
 
            work.  The activity restrictions which have been imposed 
 
            would not prohibit him from being gainfully employed.  
 
            Claimant receives social security disability.  It is noted 
 
            that the disability award occurred at a time when the 
 
            depression was ongoing.  Claimant is not now handicapped by 
 
            depression.  
 
            
 
                 When claimant's age, education, work background, and 
 
            physical restrictions are considered, together with the fact 
 
            of his failure to make a substantial bona fide effort to 
 
            find employment, it is determined that he has a 20 percent 
 
            permanent partial disability.  This entitles him to recover 
 
            100 weeks of compensation benefits under the provisions of 
 
            section 85.34(2)(u).  This case fails to make a prima facie 
 
            showing of total disability and it is not one in which the 
 
            odd-lot doctrine is applicable.
 
            
 
                 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 is entitled to recover the expenses shown in 
 
            exhibits 9 and 12.  Defendants are also responsible for 
 
            $261.77 of the charges shown in exhibit 11.  Defendants are 
 
            also responsible for claimant's mileage in the amount of 
 
            $48.30.  
 
            
 
                 Since claimant has prevailed in this proceeding he is 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            entitled to recover the costs as set forth in his motion.  
 
            These include the filing fee of $65, the fee for a report 
 
            from Dr. Worrell in the amount of $80 and the deposition 
 
            transcript for the claimant's deposition in the amount of 
 
            $90.60.  There is no provision for recovery of medical 
 
            records, however.  The amount of costs to be recovered is 
 
            therefore $235.60.  
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay James 
 
            Payton one hundred (100) weeks of compensation for permanent 
 
            partial disability at the stipulated rate of one hundred 
 
            ninety-four and 05/100 dollars ($194.05) per week payable 
 
            commencing September 4, 1991.  The entire amount thereof is 
 
            past due and shall be paid to claimant in a lump sum 
 
            together with interest after credit is given for all 
 
            permanent partial disability benefits which have been 
 
            previously paid. 
 
            
 
                 It is further ordered that defendants pay claimant the 
 
            sum of one thousand five hundred ninety-seven and 07/100 
 
            dollars ($1,597.07) pursuant to the provisions of section 
 
            85.27 for his medical expenses and mileage.  
 
            
 
                 It is further ordered that defendants pay to claimant 
 
            the sum of two hundred thirty-five and 60/100 dollars 
 
            ($235.60) as and for the costs of this proceeding pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this __________ day of September, 
 
            1994.
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Thomas Currie
 
            Attorney at Law
 
            4040 First Ave N.E.
 
            PO Box 998
 
            Cedar Rapids, Iowa  52406-0998
 
            
 
            Mr. Richard Book
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines, Iowa  50309-2421
 
            
 
            
 
            
 
 
            
 
            
 
            
 
                                           1108.20 1803 2204 2501
 
                                           Filed September 20, 1994
 
                                           Michael G. Trier
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JAMES PAYTON,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 949693
 
            FARNER-BOCKEN COMPANY,   
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            ROYAL INSURANCE,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            1108.20 1803 2204 2501
 
            
 
            Claimant fell and developed a painful back condition but no 
 
            objective evidence of serious injury was found despite 
 
            extensive testing.  Claimant later developed a depression 
 
            which was found to have been proximately caused by the 
 
            injury.  Claimant made less than exemplary efforts to resume 
 
            employment.  The depressive condition was effectively 
 
            treated and resolved without any evidence of permanency.  
 
            Claimant awarded 20 percent permanent partial disability.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
              BEFORE THE IOWA INDUSTRIAL COMMISSIONER         
 
                  
 
FRED BEBOUT,    
 
         
 
     Claimant, 
 
         
 
vs.                                 File Nos. 949915/1053466
 
         
 
HY-VEE FOOD STORES, INC.,            A R B I T R A T I O N
 
         
 
     Employer,                          D E C I S I O N
 
         
 
and        
 
         
 
EMC INSURANCE COMPANIES,  
 
         
 
     Insurance Carrier,  
 
         
 
and        
 
         
 
SECOND INJURY FUND OF IOWA     
 
         
 
     Defendants.    
 
         
 
         
 
                  STATEMENT OF THE CASE
 
         
 
                    
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
These cases came on for hearing on June 13, 1995 at Des 
 
Moines, Iowa.  These are proceedings in arbitration wherein 
 
claimant seeks compensation for permanent partial disability 
 
as a result of alleged injuries occurring on May 1, 1987, 
 
November 1, 1989, May 17, 1990 and July 20, 1990.  Claimant 
 
had filed the two petitions referred to by the file numbers 
 
above, representing injuries of May 1, 1987 and May 17, 
 
1990.  When the hearing report was presented and signed by 
 
both parties it had the four respective dates set out 
 
therein.  Normally, in a situation of this kind, one would 
 
have four files and usually multiple filing fees unless all 
 
of the cases involving the same claimant and defendant are 
 
filed at the same time.  The record in the proceeding 
 
consists of the testimony of the claimant and Allen Dix, 
 
joint exhibits 1 through 4 and defendants' exhibit A.
 
         
 
                  ISSUES
 
         
 
The issues for resolution are:
 
         
 
1.  Whether an injury arose out of and in the course of 
 
claimant's employment on the respective injury dates;
 
         
 
2.  Whether there is any causal connection as to 
 
claimant's alleged disability and the respective alleged 
 
injury dates;
 
         
 
3.  The commencement date at which benefits would begin.
 
         
 
                    
 
         
 

 
         
 
 
 
 
 
The additional issues as to file no. 1053466 are:
 
         
 
1.  Whether claimant filed his action timely in 
 
accordance with Iowa Administrative Code 85.26 
 
(statute of limitations);
 
         
 
2.  Whether claimant gave timely notice of his injury 
 
in accordance with Iowa Administrative 
 
Code 85.23 (notice statute).
 
         
 
                  FINDINGS OF FACT
 
         
 
The undersigned deputy, having heard the testimony and 
 
considered all the evidence finds that:
 
         
 
Claimant is a 60 year old high school graduate who has 
 
had no further education.  He last worked for the defendant 
 
employer May 17, 1990 and was with the defendant corporation 
 
for almost 29 years, the last 20 years being continuous, 
 
until he last worked.
 
         
 
Claimant also testified through his deposition on March 
 
6, 1995.  (Joint Exhibit 4)
 
         
 
Claimant described the nature of his work which the 
 
majority of claimant's time with the defendant employer 
 
involved working as a meat cutter and then a seafood service 
 
meat manager, the latter position claimant holding from 
 
sometime in 1986 until March 1989.
 
         
 
In April 1988 claimant had a heart attack, after which 
 
         
 

 
         
 
 
 
 
 
 
 
time he returned to work around August 4, 1988 to light 
 
duty.  Around October 2, 1988 until November 26, 1988 he was 
 
on full duty, continuing as seafood service meat manager.  
 
Claimant then was off from November 26, 1988 through March 
 
6, 1989 for anxiety.
 
         
 
Claimant testified that around March 7, 1989 to 
 
December 13, 1989, after he had returned to work, his job 
 
was basically stocking the meat department with luncheon 
 
meat, cheeses and stocking shelves in the department.  
 
Claimant said that when he first returned to work in March 
 
1989, he tried to cut meat but couldn't.  
 
         
 
Following claimant's approximately nine months back to 
 
work, that ended December 13, 1989, claimant was then again 
 
off work December 14, 1989 through April 5, 1990 because of 
 
lung problems.  April 6, 1990 to May 17, 1990 claimant had 
 
returned to work servicing the counter and stocking luncheon 
 
meat, cheeses, etc.  May 17, 1990 was claimant's last day of 
 
work and he has not worked since that time to the present, 
 
nor has he looked for any work from that time to the 
 
present, either with the defendant employer or with any 
 
other employer.
 
         
 
Claimant then had surgery on May 17, 1990 on his left 
 
hand and arm.  On July 20, 1990 he had surgery on his right 
 
hand and arm.  These two surgery dates are also reflected in 
 
the claimant's alleged two injury dates.
 
         
 
Claimant described the nature of his jobs and what they 
 
entailed as far as the use of his hands, the tools used and 
 
the requirement of holding meat with pressure, cutting with 
 
pressure, cutting and slicing meat and sawing 
 
         
 

 
         
 
 
 
 
 
 
 
meat bones with a saw.  He also described how his profession 
 
has changed as far as the nature of the meat he had to cut.  
 
When claimant first began working he had to carry a quarter 
 
of a carcass from the cooler to the table and cut it up into 
 
the respective pieces.  Now, and since approximately 1986, 
 
the meat is brought in as boxed beef and there are various 
 
parts of the carcass already carved up into the respective 
 
categories like ribs, loins, etc.  He indicated the amount 
 
of weight he would have to lift or carry was substantially 
 
reduced when they went to boxed beef versus having to cut up 
 
a quarter of beef.
 
         
 
Claimant also had to handle fish with the weight being 
 
anything from around 3/4 of a pound to a 20 pound salmon.  
 
He described how he had to handle and cut the fish.  In many 
 
instances, the fish was delivered in whole for the claimant 
 
to cut and fillet.
 
         
 
Claimant testified as to how he was exposed to 
 
chemicals when they had to cut the meat wrapping with a hot 
 
wire during approximately 15 years of the time he was with 
 
the defendant employer.  He said they later had a ceramic 
 
cutting mechanism that cut the wrapping and did not let off 
 
as much fumes and at that time, they also used a different 
 
meat wrapping cellophane.
 
         
 
Claimant also described how he would be going in and 
 
out of the cooler and the varying temperatures to which he 
 
would be exposed while cutting meat or working in the meat 
 
department.
 
         
 
Claimant then testified as to the respective alleged 
 
injuries.  The first alleged injury being May 1, 1987, in 
 
         
 

 
         
 
 
 
 
 
 
 
which he indicated he had started noticing problems grasping 
 
cold things, his hand would go into a claw and he would have 
 
pain in it.  He said it gradually got worse to the extent 
 
that he couldn't saw or grab a knife.
 
         
 
He next described the November 1, 1989 alleged injury 
 
in which he is contending his asthma was either caused or 
 
was substantially aggravated by his work conditions, 
 
particularly the fumes from cutting of the meat wrapping 
 
and/or the exposure to the cold in the meat department.  
 
         
 
Claimant then testified as to his May 17, 1990 alleged 
 
injury to his left hand and arm, at which time he did not 
 
return to work, and then his subsequent similar surgery on 
 
July 20, 1990 to his right hand and arm.  Claimant contended 
 
that prior to his surgery, and as one of his reasons for 
 
quitting work on May 17, 1990, was that he was unable to cut 
 
meat and that he was unable to handle, grasp or stock the 
 
luncheon meat, etc.  He also said that he was having 
 
breathing problems.  
 
         
 
Claimant testified that he had a major heart attack 
 
April 1, 1988, after which time he had an angiopalsty 
 
surgery, which was the balloon procedure.  Claimant returned 
 
to light duty work after that attack on August 4, 1988.  He 
 
had lifting restrictions and breathing problems.  Claimant 
 
later contended that the breathing problems were later 
 
involving his lungs, and not his heart.  He seemed to 
 
indicate he felt his lifting restrictions eventually were 
 
not as a result of his heart problems.  The undersigned 
 
might note, in looking at the records, that the medical 
 
evidence does not seem to support claimant's contention.  
 
         
 
Claimant indicated that sometime in the first part of 1991, 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
when he was still having problems with his hands and arms, 
 
was unable to grip or pinch, or have control of his hands, 
 
that he had a discussion with the defendant employer as to 
 
attempting to get back to work.  The end result was that 
 
claimant resigned and his employment terminated July 11, 
 
1991.  (Jt. Ex. 2)  There was considerable testimony 
 
surrounding this joint exhibit, as to the fact that it 
 
states thereon that claimant voluntarily retired due to a 
 
heart condition.  It appears that, other than the signature 
 
of the claimant, he did not fill this form out, nor did Mr. 
 
Dix, who also signed the form.  It appeared possibly, that 
 
Thomas Noll, who witnessed the parties' signature, was the 
 
one who filled it out.  It appeared that claimant is 
 
disavowing the fact that he was retiring due to his heart 
 
condition and, pursuant to questions, wanted to lead the 
 
undersigned to believe that this was filled out possibly 
 
after he had signed it in blank.  Of course, there is no 
 
evidence to this fact, and if there were any question, Mr. 
 
Noll could have been called as a witness by the claimant.  
 
The document otherwise, speaks for itself, and there would 
 
be no reason for the defendants to call Mr. Noll.  Claimant 
 
seemed to indicate that he signed it without reading.  
 
         
 
Assuming that is true, which assumption the undersigned is 
 
not making, it is such a simple document with so few words 
 
that it is hard for the undersigned to believe that claimant 
 
didn't know what he was doing.  Obviously, when one has 
 
litigation, hindsight is always better than foresight, but 
 
the undersigned believes what was written at the time, in 
 
1991, is the best evidence and the best capturing of the 
 
facts and what was in the claimant's mind.  It is obvious at 
 
that time that claimant was not thinking of litigation.  
 
         
 
Claimant contended at the time he resigned he was not having 
 
any having any heart problems, but his hands and lungs were 
 
         
 

 
         
 
 
 
 
 
 
 
giving him problems.  Claimant related the various medicines 
 
he is taking for his asthma and/or heart problem.
 
         
 
Since claimant was manager of the meat department, he 
 
received his full salary from the time of his heart attack 
 
in April 1988 up to March 6, 1989.  As indicated earlier, 
 
during part of that time he had returned to light duty and 
 
then full duty as seafood service meat manager.  When he 
 
then returned March 7, 1989 he was not the manager of the 
 
seafood meat department.
 
         
 
Claimant could not recall, when testifying, as to the 
 
reason he was off work December 14, 1989 through April 5, 
 
1990.
 
         
 
Claimant acknowledged that prior to April 1989 he did 
 
not see anyone for any lung problems.
 
         
 
Claimant also acknowledged that after his heart attack 
 
he was given a restriction by the doctor not to lift 
 
anything over 15 pounds.  He doesn't remember if that 
 
restriction was ever lifted.  The undersigned might note 
 
there is nothing in the medical records that would indicate 
 
that that restriction was lifted or should be lifted.  
 
         
 
Claimant's breathing, hacking and coughing started after his 
 
heart attack.
 
         
 
Claimant was asked concerning certain jobs that he 
 
thought he could do at Hy-Vee.  He was asked concerning the 
 
video department and as a greeter.  Claimant seemed to 
 
indicate that Hy-Vee didn't have a greeter before he left.  
 
Mr. Dix, who is the manager of the store, indicated that 
 
they have had a greeter since 1986 at the store at which 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
claimant last worked.  
 
         
 
Claimant commented that he didn't think he could possibly do 
 
that job, as he couldn't lift a child.  As to the video 
 
department, he didn't think he could handle it because of 
 
his asthma.  These responses seem unbelievable to the 
 
undersigned.  It is obvious claimant has no intent to work, 
 
or find work and doesn't want to work.  Claimant is on 
 
Social Security and this, likewise, gives him no incentive 
 
to try to work or find work.  He was referred to joint 
 
exhibit 3, page 5, in which Delwin E. Quenzer, M.D. 
 
indicated on February 13, 1991 that claimant was able to do 
 
a light duty job if such employment was available.  It is 
 
obvious claimant never tried.  Claimant was also asked 
 
concerning that joint exhibit 3, page 5, the February 13, 
 
1991 letter of Dr. Quenzer, in which he indicated that the 
 
primary reason for claimant's disability is his cardiac 
 
status at present.  Claimant indicated he didn't believe 
 
this.
 
         
 
It would seem from the claimant's testimony that he, in 
 
fact, did not tell the defendant employer that he felt his 
 
asthma was work connected.  Mr. Dix, the Hy-Vee manager, 
 
first knew claimant was contending that was when he had 
 
notice of claimant's petition, which was filed February 15, 
 
1994.  
 
         
 
Allen Dix testified that he has worked for Hy-Vee for 
 
25 years and has been claimant's supervisor since February 
 
1985 until claimant left his employment May 17, 1990.  He 
 
was asked several questions concerning claimant's medical 
 
condition as he understood it, his job at Hy-Vee and the 
 
nature of claimant's job.  He basically agreed with 
 
claimant's description of his duties and job.  He referred 
 
         
 

 
         
 
 
 
 
 
 
 
to joint exhibit 3, page 6, and indicated claimant could not 
 
do his meat cutting job with those restrictions, ten pounds 
 
being the problem, but he indicated claimant would have no 
 
problem stocking luncheon meat, cheeses, etc.  He indicated 
 
that other stocking of shelves (things other than the meat 
 
department) could be a problem due to the ten pound limit.  
 
He indicated claimant could work in the video department 
 
which pays about 40 to 50 percent less money than claimant 
 
would make as a meat cutter.  Mr. Dix indicated they have 
 
always had a greeter at the new store, the first one being 
 
hired in December 1986.  He said claimant would be good for 
 
that job because he gets along well with customers.  
 
 
 
Currently, they have an 80 year old doing this job 24 hours 
 
a week.  The pay would be similar to what one would make in 
 
the video department.  There were considerable questions 
 
concerning an alleged conversation Mr. Dix had with the 
 
claimant and whether it was in 1990 or 1991.  Mr. Dix did 
 
not believe he had a conversation in 1991 with claimant, 
 
mainly for the reason that claimant hadn't worked since May 
 
17, 1990.  He indicated he did have a conversation with 
 
claimant which he believes was in 1990, before claimant 
 
quit, concerning various jobs up front that claimant could 
 
do.  
 
         
 
Mr. Dix acknowledged that claimant filed a civil rights 
 
action against him because of alleged demotion following 
 
claimant's heart attack.  He indicated he and claimant did 
 
not have a good communication rapport.  The civil rights 
 
action came as a result of claimant not being put in charge 
 
as the manager of the seafood service meat department upon 
 
his return in March 1989.  Mr. Dix said that the employer 
 
won the civil rights action.  Mr. Dix said that when he had 
 
originally asked claimant to take the seafood service meat 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
manager job, he felt claimant was a good salesman and worked 
 
well with the customers.  He said these same qualities would 
 
be good for claimant's work in the video department or 
 
as a greeter.  He said the video or greeter jobs would 
 
comply with claimant's restrictions referred to in joint 
 
exhibit 3, page 6, said restriction pursuant to a February 6, 
 
1991 report.  Mr. Dix said that claimant's demotion from 
 
the seafood department had to do with the protection of the 
 
department and not claimant's physical condition.
 
         
 
He said that when claimant retired in July 1991 
 
claimant did not say he was retiring because of his hand, 
 
arm problem or asthma.  He emphasized that he never knew of 
 
claimant's asthma as it was connected to any work until he 
 
was notified when the petition was filed, said petition 
 
being filed February 15, 1994.
 
         
 
Mr. Dix acknowledged that he had a discussion with 
 
claimant in July 1991 as to claimant resigning.  He said 
 
claimant called him or came in and said he was going to go 
 
on Social Security and was quitting work.  He said he had 
 
the paperwork done by their company and that a Tom Noll was 
 
there, as he would be the one looking up claimant's records.  
 
He was referred to joint exhibit 2 and indicated that other 
 
than his signature that was not his handwriting and presumed 
 
it was Tom Noll's.  When asked whether the claimant has 
 
worked since July 1991 he said that claimant does cleanup 
 
work at the park at Red Rock Lake.  He said he saw claimant 
 
there one time and he was emptying trash.  The undersigned 
 
might note that he noticed claimant's demeanor when Mr. Dix 
 
said this.
 
         
 
                    
 
         
 

 
         
 
 
 
 
 
 
 
Joint exhibit 3, page 1 is a June 6, 1991 letter of 
 
Delwin E. Quenzer, M.D., an orthopedic surgeon, who opined 
 
that claimant had a total of 37 percent impairment of the 
 
right upper extremity plus a 9 percent impairment of the 
 
left hand, said impairment determined by his use of the AMA 
 
Guides to the Evaluation of Permanent Impairment, Third 
 
Edition.
 
         
 
Page 2 of said exhibit, which is an April 22, 1991 
 
report of Dr. Reagan, shows that he suspected at that 
 
time that claimant has probably reached maximum 
 
improvement.  This impairment by Dr. Douglas S. Reagan 
 
was pursuant to Dr. Quenzer having referred claimant to 
 
his partner.  On February 13, 1991, Dr. Quenzer, in his 
 
report (Jt. Ex. 3, p. 5) indicated that he preferred 
 
not to issue a final rating on claimant' permanent 
 
partial impairment at that time, but he also had 
 
indicated that claimant's healing period regarding the 
 
carpal tunnel and cubital tunnel releases has been 
 
concluded.  It is these two letters, joint exhibit 3, 
 
pages 2 and 5, that has caused the dispute between the 
 
parties as to the extent of claimant's healing period.  
 
The parties agreed that any period began May 17, 1990.  
 
         
 
Claimant contends it extended through April 22, 1991 as 
 
per the page 2 letter and defendants contend that it 
 
extended only through February 13, 1991, as reflected 
 
on page 5 of said exhibit.  The undersigned finds that 
 
any healing period was from February 17, 1990 through 
 
April 22, 1991.  It is obvious to the undersigned that 
 
on February 13, 1991 Dr. Quenzer was not only reluctant 
 
to issue any permanent impairment, but subsequent 
 
thereto, referred claimant to his partner for another 
 
opinion.  In this same February 13, 1991 letter, Dr. 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
Quenzer indicated that claimant was still in a therapy 
 
program for problems relating to his right forearm.  
 
Taking the letter as a whole and considering the 
 
ultimate letter of Dr. Reagan, the undersigned does not 
 
believe claimant's healing period, in fact, ended on 
 
February 13, but, in fact, claimant reached maximum 
 
improvement on April 22, 1991, which would amount 
 
to 48.714 weeks of healing period instead of 39 weeks.
 
         
 
Joint exhibit 3, page 6 is the patient status 
 
report in which the doctor sets out certain 
 
restrictions, one of which is a ten pound lifting 
 
restriction, that claimant may lift 25 pounds 
 
occasionally.
 
         
 
Joint exhibit 3, page 9 is the status report dated 
 
August 14, 1990, in which Dr. Quenzer diagnoses a 
 
bilateral carpal/cubital tunnel, which he indicated was 
 
work related.  He set out in the limitations that 
 
claimant must follow.  He further commented that he 
 
hoped that claimant could start at least light duty in 
 
another month.  As the evidence and testimony reflects, 
 
claimant never did work after May 17, 1990.
 
         
 
Page 11 of joint exhibit 3 is Dr. Quenzer's letter 
 
in which he opined that claimant's carpal/cubital 
 
tunnel problems are substantially caused or 
 
significantly exacerbated by the nature of claimant's 
 
work.  On pages 10 and 12 of said exhibit it is obvious 
 
claimant was having cardiac problems and had a history 
 
of repeated myocardial infarctions.  Page 21 of joint 
 
exhibit 3 shows the final diagnosis on claimant's 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
admission on August 1, 1990 at the Iowa Methodist 
 
Medical Center was a coronary artery disease and 
 
chronic obstructive asthma.
 
         
 
Pages 31 through 35 of joint exhibit 3 are 
 
exhibits concerning claimant's May 17, 1990 left carpal 
 
and cubital tunnel surgery.  Joint exhibit 3, pages 26 
 
through 30 are exhibits concerning claimant's July 20, 
 
1990 right carpal tunnel and cubital tunnel release.
 
         
 
Pages 38 through 40 is a report of Dr. Greg A. 
 
Hicklin, a pulmonoligist, dated May 16, 1995.  In the 
 
report he notes a different history claimant gave Mayo 
 
Clinic and him concerning the extent of claimant's 
 
smoking history.  In summary, the doctor said he did 
 
not feel claimant's work environment caused claimant's 
 
asthma, but that he felt historically, his work 
 
environment caused him to cough and wheeze when exposed 
 
to cold air and fumes.  In May 1993, page 41 of joint 
 
exhibit 3, the doctor made a similar conclusion, 
 
opining that claimant's occupation did not cause his 
 
asthma, but again indicated exposure to cold air and 
 
fumes from the cellophane meat wrappings were 
 
associated with the exacerbation of claimant's asthma 
 
and felt it reasonable for claimant to avoid exposure 
 
to these situations that causes exacerbation of his 
 
asthma.  
 
 
 
Pages 36 through 37 is the Mayo Clinic report 
 
of February 14, 1991.  Dr. Hicklin, in his report, also 
 
showed elevated left ventricular and diastolic pressure 
 
and noted that when claimant was seen in June by a 
 
cardiologist, the cardiologist felt that claimant had a 
 
left ventricular dysfunction.  (Jt. Ex. 3, p. 38)  Dr. 
 
John Glazier, in June 1992, was highly suspicious that 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
claimant had left ventricular dysfunction which was the 
 
cause of claimant's shortness of breath.  (Jt. Ex. 3, 
 
p. 45)  
 
         
 
Page 64 of joint exhibit 3 indicates that claimant 
 
has had a history of anxiety depression in addition to 
 
his other problems.  The rest of joint exhibit 3, to 
 
page 81 contains considerable information in 1989 and 
 
1990 concerning claimant's treatment with the doctors 
 
and reports dealing with his lung disease or asthma.  
 
It has notations concerning his cardiology problems, 
 
anxiety, etc.  Dr. Jay Yans, of the Mid-Iowa Heart 
 
Institute, on June 19, 1990 issued a report at that 
 
time indicating that claimant had 
 
clinical evidence compatible with systolic as well 
 
diastolic dysfunction of the ventricle.
 
         
 
The rest of joint exhibit 3 involving claimant's 
 
medical treatment and history does not change, add to 
 
or detract from the conclusion that is being rendered 
 
herein.  There is no necessity of going into any more 
 
detail concerning it.
 
         
 
The undersigned finds that claimant suffered a 
 
simultaneous bilateral carpal tunnel and cubital tunnel 
 
upper extremity injury on May 17, 1990.  Claimant had 
 
his left carpal and cubital tunnel surgery on May 17, 
 
1990 and then less than approximately two months later 
 
had the same surgery on his right.  Claimant is arguing 
 
that the same symptoms began showing on claimant's left 
 
in May 1987, and symptoms on the right a substantial 
 
time later.  There was no impairment, restrictions or 
 
permanency existing until a substantial time later, 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
which culminated due to the cumulative injury as far as 
 
claimant's left on May 17, 1990, when he had surgery 
 
and as to the right on July 20, 1990, when he had 
 
surgery.  The undersigned does not believe that the 
 
date of injury was when claimant first experienced some 
 
pain, as claimant contends.  Claimant's contention, of 
 
course, would cause him to be able to claim, as he is, 
 
that he has had two separate injuries and therefore, 
 
brings in the Second Injury Fund.  The undersigned 
 
believes and finds that the two left and right carpal 
 
tunnel and cubital conditions accumulated over a period 
 
of time and that they were simultaneous.  This 
 
conclusion is drawn from the fact that the two 
 
surgeries were approximately two months apart.  The 
 
undersigned finds that the evidence is clear that 
 
because of the nature of claimant's work and his long 
 
history at this work, that this simultaneous bilateral 
 
upper extremity injury was caused by his work and arose 
 
out of his work.
 
         
 
In light of the above conclusion, the undersigned 
 
finds that the Second Injury Fund is not responsible to 
 
pay claimant any benefits, as the conditions for 
 
involvement of the Second Injury Fund do not exist.  We 
 
do not have a first and second injury.
 
         
 
In file no. 1053466, claimant adds another factor, 
 
contending that claimant's asthma, respiratory disease 
 
or breathing problems arose out of and in the course of 
 
claimant's employment and caused claimant to become 
 
totally disabled, or at least substantially disabled.
 
         
 
The undersigned finds that the much greater weight 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
of medical evidence shows that claimant has had a long 
 
history of medical problems, has had heart problems and 
 
has asthma.  There is no medical evidence that causally 
 
connects claimant's asthmatic or lung condition with 
 
his work.  
 
 
 
There is no evidence that claimant's heart 
 
condition that is adding to his breathing condition was 
 
caused by his work.  The only evidence is that the 
 
change in temperatures and cold to which claimant was 
 
subjected during his employment aggravated his 
 
breathing or asthma condition.  It is likewise obvious 
 
that once removed, claimant would not suffer from such 
 
conditions in relation to his work.  Claimant has had 
 
considerable problems since he left work May 17, 1990, 
 
thereby, he is not being exposed to any conditions at 
 
work.  
 
 
 
Claimant has failed to carry his burden to show 
 
that the claimant's problems that currently exist 
 
concerning his breathing, asthma or lung problem was 
 
caused by his work.  Dr. Hicklin opined that he did not 
 
feel that claimant's work environment caused claimant's 
 
asthma.  (Jt. Ex. 3, p. 40)  
 
 
 
There is testimony and evidence that claimant has a 
 
restriction as to lifting connected 
 
with his carpal tunnel surgeries.  There is also 
 
evidence that claimant had restrictions as to lifting 
 
connected with his heart condition.  One could conclude 
 
that the reason for claimant quitting his employment 
 
and for sure not seeking any other work or 
 
rehabilitation since May 17, 1990, has as much, if not 
 
more, to do with his heart condition as it has to do 
 
with any other condition claimant has involving his 
 
upper extremities.  
 
 
 
Claimant had a massive heart attack 
 
in 1988 and had a balloon procedure later on.  The 
 
record is full of references to claimant's heart 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
history and condition.  The undersigned believes that 
 
one could conclude, without hesitation, that claimant's 
 
obtaining of Social Security disability is a result of 
 
his heart, cardiac, pulmonary, breathing and asthmatic 
 
conditions.  There is no evidence that that was caused 
 
by claimant's work.  Claimant seemed to make a big 
 
point of the fact that he has not been offered a job or 
 
asked to come back to work for the defendant employer.  
 
         
 
Claimant was the one who quit and then eventually asked 
 
for retirement.  If he were motivated or wanted to 
 
work, he has as much, if not more responsibility to go 
 
seek employment either with the defendant employer or 
 
some other potential employer.  The undersigned 
 
therefore, finds that claimant does not have body as a 
 
whole injury as to any asthmatic or lung condition.  
 
 
 
Claimant's lawyer indicated that his action for 
 
claimant's lung condition was encompassed within file 
 
no. 1053466.  This is further substantiated by 
 
claimant's recasting of his amendment to his petitions 
 
pursuant to a deputy industrial commissioner's ruling.  
 
         
 
This file no. encompasses basically the same claims 
 
that are in file no. 949915, except that the allegation 
 
concerning claimant's asthma has been added in addition 
 
thereto in file no. 1053466.  The undersigned 
 
therefore, finds that claimant is entitled to no 
 
recovery under file no. 1053466 and that those parts of 
 
said file that deal with claimant's upper extremities 
 
will be disposed of under file no. 949915.
 
         
 
The undersigned finds that claimant has a 37 
 
percent permanent impairment of his right upper 
 
extremity and a 9 percent permanent impairment of his 
 
left hand as found by Dr. Delwin E. Quenzer on joint 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
exhibit 3, page 1.  Converting these to body as a whole 
 
and using the combined charts, the undersigned finds 
 
that as a result of claimant's simultaneous bilateral 
 
carpal and cubital tunnel injuries, he has 26 percent 
 
body as a whole injury, which entitles claimant to 130 
 
weeks of permanent partial disability benefits payable 
 
at a rate of $314.90 per week.
 
         
 
As to the dispute concerning healing period, the 
 
undersigned finds that claimant's healing period is May 
 
17, 1990 through April 22, 1991, as the undersigned 
 
believes that Dr. Quenzer's February 13, 1991 letter 
 
still left doubts in the doctor's mind as to claimant 
 
actually reaching maximum recovery.  The record shows 
 
that Dr. Quenzer then referred claimant to his partner, 
 
Dr. Reagan, who then opined that he felt claimant 
 
reached maximum improvement on April 22, 1991.  (Jt. 
 
Ex. 3, p. 2)  Therefore, the undersigned finds that 
 
claimant is entitled to 48.71 weeks of healing period, 
 
which the undersigned finds arose out of and in the 
 
course of claimant's May 17, 1990 work injury, which 
 
resulted from claimant's simultaneous bilateral carpal 
 
tunnel-cubital tunnel injuries.  As indicated earlier, 
 
the Second Injury Fund does not owe any benefits to the 
 
claimant.
 
         
 

 
         
 
         
 
                  
 
         
 
                 CONCLUSIONS OF LAW
 
         
 
The claimant has the burden of proving by a 
 
preponderance of the evidence that the alleged injury 
 
actually occurred and that it arose out of and in the course 
 
of employment.  McDowell v. Town of Clarksville, 241 
 
N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 
 
Iowa 352, 154 N.W.2d 128 (1967).  The words "arising out of" 
 
refer to the cause or source of the injury.  The words "in 
 
the course of" refer to the time, place and circumstances of 
 
the injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 
 
1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 
 
1971).
 
         
 
The claimant has the burden of proving by a 
 
preponderance of the evidence that the injury is a proximate 
 
cause of the disability on which the claim is based.  A 
 
cause is proximate if it is a substantial factor in bringing 
 
about the result; it need not be the only cause.  A 
 
preponderance of the evidence exists when the causal 
 
connection is probable rather than merely possible.  
 
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 
 
296 (Iowa 1974).
 
         
 
The question of causal connection is essentially within 
 
the domain of expert testimony.  The expert medical evidence 
 
must be considered with all other evidence introduced 
 
bearing on the causal connection between the injury and the 
 
disability.  The weight to be given to any expert opinion is 
 
determined by the finder of fact and may be affected by the 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
accuracy of the facts relied upon by the expert as well as 
 
other surrounding circumstances.  The expert opinion may be 
 
accepted or rejected, in whole or in part.  Sondag v. 
 
Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. 
 
Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. 
 
Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
When the disability develops gradually over a period of 
 
time, the "cumulative injury rule" applies.  For time 
 
limitation purposes, the compensable injury is held to occur 
 
when because of pain or physical disability, the claimant 
 
can no longer work.  McKeever Custom Cabinets v. Smith, 
 
379 N.W.2d 368 (Iowa 1985).
 
         
 
Section 85.64 governs Second Injury Fund liability.  
 
Before liability of the Fund is triggered, three 
 
requirements must be met.  First, the employee must have 
 
lost or lost the use of a hand, arm, foot, leg or eye.  
 
Second, the employee must sustain a loss or loss of use of 
 
another specified member or organ through a compensable 
 
injury.  Third, permanent disability must exist as to both 
 
the initial injury and the second injury.  
 
         
 
The Second Injury Fund Act exists to encourage the 
 
hiring of handicapped persons by making a current employer 
 
responsible only for the amount of disability related to an 
 
injury occurring while that employer employed the 
 
handicapped individual as if the individual had had no 
 
preexisting disability.  See Anderson v. Second Injury 
 
Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa 
 
Workers' Compensation-Law and Practice, section 17-1.
 
         
 
The Fund is responsible for the industrial disability 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
present after the second injury that exceeds the disability 
 
attributable to the first and second injuries.  Section 
 
85.64.  Second Injury Fund of Iowa v. Braden, 459 N.W.2d 
 
467 (Iowa 1990); Second Injury Fund v. Neelans, 436 
 
N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal 
 
Co., 274 N.W.2d 300 (Iowa 1970).
 
         
 
Benefits for permanent partial disability of two 
 
members caused by a single accident is a scheduled benefit 
 
under section 85.34(2)(s); the degree of disability must be 
 
computed on a functional basis with a maximum benefit 
 
entitlement of 500 weeks.  Simbro v. Delong's Sportswear, 
 
332 N.W.2d 886 (Iowa 1983).
 
         
 
Section 85.34(1) provides that healing period benefits 
 
are payable to an injured worker who has suffered permanent 
 
partial disability until (1) the worker has returned to 
 
work; (2) the worker is medically capable of returning to 
 
substantially similar employment; or (3) the worker has 
 
achieved maximum medical recovery.  The healing period can 
 
be considered the period during which there is a reasonable 
 
expectation of improvement of the disabling condition.  See 
 
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
Ct. App. 1981).  Healing period benefits can be interrupted 
 
or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
1986).
 
         
 
It is further concluded that claimant incurred 
 
simultaneous bilateral upper extremity injury on May 17, 
 
1990, causing claimant to incur a 37 percent permanent 
 
impairment to his left upper extremity and a 9 percent 
 
permanent impairment to his right hand, resulting in 
 
claimant, under 85.34(2)(s), to incur a 26 percent permanent 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
impairment, resulting in claimant being entitled to 130 
 
weeks of permanent partial disability benefits at the rate 
 
of $314.90 per week.
 
         
 
That claimant is entitled to healing period beginning 
 
May 17, 1990 through April 22, 1991 amounting to 48.714 
 
weeks at the weekly rate of $314.90 per week.
 
         
 
That claimant's asthmatic or lung disease or condition 
 
or any disability resulting therefrom, did not arise out of 
 
and it was not caused by claimant's work.  Claimant did not 
 
incur an injury or permanent disability that arose out of 
 
and in the course of his employment on May 1, 1987, November 
 
1, 1989, nor July 20, 1990.
 
         
 
That defendants' affirmative defenses as to file no. 
 
1053466, concerning timely notice under 85.23 and 
 
statute of limitations under 85.26 of the Iowa 
 
Administrative Code are moot in light of the decision 
 
herein.
 
         
 
That Second Injury Fund is not responsible to pay 
 
claimant any benefits, as there was no first and second 
 
injury.
 
         
 
                  ORDER
 
         
 
THEREFORE IT IS ORDERED:
 
         
 
As to file no. 1053466:
 
         
 
Claimant takes nothing from this proceeding.
 
         
 
                    
 
         
 

 
         
 
 
 
 
 
As to file no. 949915:
 
         
 
The defendant corporation and insurance carrier 
 
shall pay unto claimant healing period benefits at the 
 
rate of three hundred fourteen and 90/100 dollars 
 
($314.90) for the period of May 17, 1990 through April 
 
22, 1991, encompassing forty-eight point seven one four 
 
(48.714) weeks.
 
         
 
That defendant corporation and insurance carrier 
 
shall pay unto claimant one hundred thirty (130) weeks 
 
of permanent partial disability benefits at the rate of 
 
three hundred fourteen and 90/100 dollars ($314.90) 
 
beginning April 23, 1991.
 
         
 
That defendant corporation and insurance carrier 
 
shall pay the accrued weekly benefits in a lump sum and 
 
shall receive credit against the award for weekly 
 
benefits previously paid.  The parties stipulated that 
 
the defendant corporation and insurance carrier paid 
 
claimant 39 weeks of temporary total disability or 
 
healing period and one hundred forty point six (140.6) 
 
weeks of permanent partial disability benefits at two 
 
hundred ninety-six and 21/100 dollars ($209.21) per 
 
week.
 
         
 
That defendant corporation and insurance carrier shall 
 
pay interest on benefits awarded herein as set forth in Iowa 
 
Code section 85.30.
 
         
 
That defendant corporation, defendant insurance carrier 
 
and claimant are each responsible for payment of one-half 
 
(1/2) the costs of these actions, pursuant to rule 343 IAC 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
4.33.
 
         
 
That defendant corporation and insurance carrier shall 
 
file an activity report upon payment of this award as 
 
required by this agency, pursuant to rule 343 IAC 3.1.
 
         
 
The Second Injury Fund is not responsible for payment 
 
of any benefits to the claimant herein, and is not 
 
responsible for payment of any costs.
 
         
 
Signed and filed this _____ day of June, 1995.
 
         
 
                  
 
                  
 
         
 
                        ______________________________
 
                        BERNARD J. O'MALLEY
 
                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
Copies to:
 
         
 
Mr. Steven C. Jayne
 
Attorney at Law
 
5835 Grand Avenue STE 201
 
Des Moines, Iowa 50312
 
         
 
E. J. Giovannetti
 
Attorney at Law
 
2700 Grand Avenue STE 111
 
Des Moines, Iowa 50312
 
         
 
Mr. Charles S. Lavorato
 
Assistant Attorney General
 
Hoover State Office Bldg
 
Des Moines, Iowa  50319
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                   5-1100; 5-1108;
 
                                   5-1808; 5-1802
 
                                   Filed June 27, 1995
 
                                   BERNARD J. O'MALLEY
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
________________________________________________________________
 
FRED BEBOUT,  
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                  File Nos. 949915/1053466
 
HY-VEE FOOD STORES, INC.,    
 
                                   A R B I T R A T I O N
 
     Employer, 
 
                                     D E C I S I O N
 
and       
 
          
 
EMC INSURANCE COMPANIES,     
 
          
 
     Insurance Carrier,  
 
and       
 
          
 
SECOND INJURY FUND OF IOWA    
 
     Defendants.    
 
________________________________________________________________
 
 
 
5-1100; 5-1108; 5-1808; 5-1802
 
Found claimant incurred a bilateral simultaneous upper 
 
extremity work injury on May 17, 1990 resulting in a 26 percent 
 
impairment to claimant's body as a whole under 85.34(2)(s) in 
 
file no. 949915.
 
 
 
5-1100; 5-1108
 
Found claimant's asthma or lung problems did not arise out of 
 
and in the course of claimant's employment.  Claimant took nothing 
 
as to file no. 1053466.
 
 
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            BETTIE M. SUDBROCK,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 949929
 
            DEPARTMENT OF PUBLIC HEALTH,    
 
                                             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.           
 
            ___________________________________________________________
 
                                  INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Bettie 
 
            M. Sudbrock, claimant, against the Department of Public 
 
            Health, employer, and the State of Iowa, insurance carrier, 
 
            defendants, for benefits as the result of an injury which 
 
            occurred on December 28, 1989.  A hearing was held in Des 
 
            Moines, Iowa, on October 11, 1993, and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Channing Dutton.  Defendants were represented 
 
            by Greg Knoploh.  The record consists of the testimony of 
 
            Bettie M. Sudbrock, claimant, Patricia A.  Burgett, 
 
            co-employee, Rosa E. Ervin, benefits supervisor, Iowa Public 
 
            Employees Retirement System, David J. Fries, division 
 
            director of planning and administration of the Public Health 
 
            Department, William J. Snyder, assistant to the director of 
 
            the Department of Personnel, and joint exhibits 1 through 
 
            16.  The deputy ordered a transcript of the hearing.
 
            
 
                                     ISSUE
 
            
 
                 The sole issue for determination is the amount of 
 
            claimant's entitlement to permanent disability benefits, if 
 
            any.  
 
            
 
                                FINDINGS OF FACT
 
            
 
                   entitlement to permanent disability benefits
 
            
 
                 It is determined that claimant has sustained a 30 
 
            percent industrial disability and is entitled to 150 weeks 
 
            of permanent partial disability benefits.
 
            
 
                 Claimant, born January 10, 1928, was 61 years old at 
 
            the time of the injury.  She was 63 years old at the time of 
 
            her retirement from employer's service.  She was 65 years 
 
            old at the time of the hearing.  Claimant's industrial 
 
            disability is reduced because she was nearing the end of her 
 
            productive working lifetime at the time of the injury.  
 

 
            
 
            Page   2
 
                
 
               
 
            Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report 
 
            of the Industrial Commissioner 34 (Appeal Decision  1979); 
 
            Walton v. B & H Tank Corp., II Iowa Industrial Commissioner 
 
            Report 426 (1981); McCoy v. Donaldson Company, Inc., file 
 
            numbers 752670 & 805300 (App. Decn. April 28, 1989).  
 
            
 
                 At the same time, claimant credibly testified that it 
 
            was her intention to work beyond age 65 before this injury 
 
            occurred.  Claimant's testimony is credible because she has 
 
            established and exceptional life long work ethic.  Claimant 
 
            started to work at age 16 when she was still a high school 
 
            student.  She continued to work until she was 20 years of 
 
            age, when she was married and quit working outside of her 
 
            home in order to stay home to rear seven children.  Claimant 
 
            returned to the employment market at age 35 when her 
 
            youngest children were in high school.  After that she 
 
            worked continuously until her premature retirement at age 63 
 
            on September 11, 1991 (Ex. 4, p. 81).  
 
            
 
                 The medical records of both Delwin E. Quenzer, M.D., 
 
            claimant's operating orthopedic surgeon, and Camilla J. 
 
            Frederick, M.D., claimant's other treating physician, 
 
            clearly show that claimant actually urged both of these 
 
            physicians to return her to work even before the physicians 
 
            were ready to do so (Exhibit 1, pages 1-19).  This is 
 
            further confirmed by the answers to interrogatories 
 
            submitted by defendants in which Mona Rocha and Norma 
 
            Hildebrand confirmed that claimant had a very good work 
 
            attendance record and did not want to miss any work.  They 
 
            confirmed that she returned to work even before the doctors 
 
            had released her to return to work.  The answer to 
 
            Interrogatory No. 11, further reads as follows, "She said 
 
            that Bettie's injuries apparently did not prevent her from 
 
            doing her job, as Bettie continued to do her job entirely on 
 
            her own and did so until she retired." (Ex. 3, p. 69).
 
            
 
                 Claimant's State of Iowa, Confidential Performance 
 
            Reviews/Evaluations, from May 4, 1984 through October 27, 
 
            1990, show that claimant performed competently, meeting all 
 
            standards or requirements for her job (Ex. 12, pp. 111-126).  
 
            In addition, there are two letters of commendation in 
 
            claimant's file dated September 14, 1989 and May 16, 1991 
 
            (Ex. 12, pp. 109 & 110).
 
            
 
                 It is also true, as defendant points out, that claimant 
 
            had a number of health problems such as degenerative 
 
            arthritis in her knees, (Ex. 4, p. 85) controlled 
 
            hypertension, controlled diabetes and obesity (Ex. 1, p. 
 
            64), however, none of these conditions had diminished 
 
            claimant's motivation or physical ability to perform her job 
 
            (Transcript, p. 73).  Thus, claimant's testimony that at the 
 
            time of this injury, and even subsequent to it, that she 
 
            planned to work beyond age 65 is credible, persuasive, and 
 
            convincing.  Therefore, claimant has demonstrated that she 
 
            fully intended to work beyond the sometimes normal 
 
            retirement age of 65.  Therefore, claimant's industrial 
 
            disability should not be substantially reduced for the 
 
            reason that she was nearing the sometimes normal retirement 
 

 
            
 
            Page   3
 
               
 
               
 
            age of 65.  Swan v. Industrial Engineering Equipment Co., IV 
 
            Iowa Industrial Report 353 (1984)
 
            
 
                 Claimant's industrial disability is not increased 
 
            because of a lack of education for the reason that (1) she 
 
            graduated from North High School in Des Moines in June of 
 
            1945; (2) she received a certificate from the Des Moines 
 
            Area Community College for taking a medical technology 
 
            course from September to December of 1981; (3) she received 
 
            another certificate from the same school for completing a 
 
            course in advanced typing from September of 1982 through 
 
            December of 1982; and (4) while working for the State of 
 
            Iowa she attended numerous classes furnished by employer 
 
            (Ex. 4, pp. 81 & 82).  Thus, claimant is equipped 
 
            educationally to find new employment in the competitive 
 
            employment market.  She is suitable for retraining if it 
 
            were offered or if she chose to do so.  Conrad v. Marquette 
 
            School, Inc., IV Iowa Industrial Commissioner Report 74, 89 
 
            (1984).
 
            
 
                 It cannot be stated that claimant's industrial 
 
            disability is increased because of her physical inability to 
 
            perform the job that she was performing at the time of the 
 
            injury, because she did return to work in October of 1990 
 
            and performed the same job at the same pay, working the same 
 
            hours.  She was able to perform these duties of an 
 
            Accounting Technician II until the time she was forced (1) 
 
            either to be laid off or (2) to retire in September of 1991.  
 
            Claimant elected early retirement rather than being laid off 
 
            with the unknown and unlikely possibility of being recalled 
 
            based on the circumstances at that time ( Tran. pp. 57, 58, 
 
            66; Ex. 6, p. 103; Ex. 7, p. 104; Ex. 8, p. 104; Ex. 9, p. 
 
            106; & Ex. 10, p. 107).  David J. Fries, claimant's 
 
            supervisor, corroborated that this was a time of uncertainty 
 
            and unrest in state government (Tran. pp. 81 & 84).
 
            
 
                 The fact that claimant could and did perform the 
 
            regular duties of her job as an Accounting Technician II 
 
            does not mean that she did not sustain either a permanent 
 
            physical impairment or a permanent disability or an 
 
            industrial disability.  Nor is the fact that claimant 
 
            continued to receive salary increases after she returned to 
 
            work prove that she did not in fact sustain a permanent 
 
            impairment, a permanent disability, or an industrial 
 
            disability (Ex. 11, p. 108).  
 
            
 
                 The authors of Iowa Workers' Compensation text book 
 
            relate, "Another common misconception is that if an employee 
 
            is earning more money post-injury than earned before the 
 
            injury, there is no industrial disability.  However, 
 
            economic factors change.  Occasionally, someone who has a 
 
            rather low paying job requiring substantial physical effort 
 
            will find less physically strenuous work after injury which 
 
            pays a higher salary.  Such a person may still have a loss 
 
            of earning capacity though actual earnings are greater.  The 
 
            operative phrase is loss of earning capacity, not loss of 
 
            actual earnings."  Lawyer and Higgs, Iowa Workers' 
 
            Compensation--Law and Practice, (Second Edition) section 
 

 
            
 
            Page   4
 
               
 
                
 
            13-5, page 131.  Likewise, consideration must be given to an 
 
            injured employee who works hard to compensate and overcome 
 
            an existing permanent impairment and permanent disability in 
 
            order to perform well in spite of significant handicaps.
 
            
 
                 Even though claimant did not complain about her 
 
            physical limitations because she feared that she might be 
 
            fired, she nevertheless testified that performing her jobs 
 
            caused a number of physical problems (Tran. p. 45).  Mainly 
 
            she had trouble elevating her right arm and gripping things 
 
            with her right hand (Tran. p. 46).  Claimant testified that 
 
            Dr. Quenzer imposed first a 5-pound and later a 10-pound 
 
            lifting restriction on her (Tran. p. 47).  Claimant 
 
            testified that she was able to arrange her work, which 
 
            consisted of a variety of duties, in a way that she could 
 
            get them all performed (Tran. pp. 34, 46, & 63).  
 
            
 
                 Furthermore, there is medical evidence that claimant 
 
            was in fact significantly physically disabled by this injury 
 
            which occurred on December 28, 1989, when she slipped on the 
 
            ice, fell and suffered a severe tear of the rotator cuff in 
 
            her right shoulder.  When conservative treatment failed, Dr. 
 
            Frederick ordered an MRI and an arthrogram (Ex. 1, pp. 
 
            17-19).  The MRI performed on April 30, 1990, was suggestive 
 
            of a partial disruption of the rotator cuff complex (Ex. 1, 
 
            p. 61).  The arthrogram performed on May 3, 1990, confirmed 
 
            either a complete or near complete tear of the rotator cuff 
 
            (Ex. 1, p. 62).  On May 31, 1990, Dr. Quenzer diagnosed a 
 
            rotator cuff avulsion, right, with severe impingement.  He 
 
            performed (1) an acromioplasty, (2) a division of the 
 
            coracoacromial ligament and (3) a repair of the avulsed 
 
            rotator cuff, large tear (Ex. 1, p. 63).
 
            
 
                 The records of both Dr. Frederick and Dr. Quenzer 
 
            verify that claimant never really did fully recover from the 
 
            surgery.  She experienced continuing tenderness, pain, 
 
            limitation of motion and severe weakness (Ex. 1, pp. 2-19).  
 
            Eventually, on April 10, 1991, Dr. Quenzer conceded that 
 
            claimant had a "poor result from" the "rotator cuff repair" 
 
            (Ex. 1, p. 3).  
 
            
 
                 On April 30, 1991, Dr. Quenzer determined that claimant 
 
            had sustained a 15 percent permanent impairment to the whole 
 
            person (Ex. 1, p. 1).  However the full seriousness of the 
 
            injury is better illustrated by quoting the basic facts 
 
            which led to the conclusion that claimant had a 25 percent 
 
            impairment of the right upper extremity which converted to a 
 
            15 percent impairment of the body as a whole.  There is not 
 
            one, but several, limitation and disability factors that 
 
            combine to manifest the real seriousness of this injury.  
 
            Dr. Quenzer evaluated the right shoulder as follows:
 
            
 
                    Based upon a loss of active ROM of the right 
 
                 shoulder, a 10% impairment of the right upper 
 
                 extremity has occurred.  She has a 60% impairment 
 
                 of suprascapular nerve motor function, X 15% 
 
                 potential = 9% right upper extremity impairment.  
 
                 She has a 50% impairment of supraspinatous sensory 
 
                 function because of continued pain, and 50% X 5% = 
 
     
 
            
 
            
 
            Page   5
 
               
 
            
 
            
 
                 2.5%.  She has a 10% impairment of axillary nerve 
 
                 motor function X 35% possible = 3.5%.  These total 
 
                 to a 25% impairment of the right upper extremity 
 
                 (Ex. 1, p. 1).
 
            
 
                 Thus, the permanent disability in claimant's right 
 
            shoulder consists of not just one but several components (1) 
 
            range of motion, (2) suprascapular and axillary nerve motor 
 
            function, (3) supraspinatous sensory function and (4) pain.  
 
            Furthermore, it can be seen that even though claimant did 
 
            not make any verbal complaints at work to her superiors or 
 
            co-employees that nevertheless, she was working under a 
 
            rather severe physical handicap due to the medically 
 
            established permanent physical impairment of her right 
 
            shoulder.
 
            
 
                 Even though claimant was able to perform the duties of 
 
            an accounting technician II, she was nevertheless disabled 
 
            when compared to the condition that existed in her shoulder 
 
            prior to this injury.  Claimant's ability to perform the job 
 
            of accounting technician II, that she was familiar with, and 
 
            a job where she could organize and perform her work within 
 
            her limited capabilities, would not necessarily translate to 
 
            other employments, other jobs within the State of Iowa 
 
            system, nor would it necessarily transfer to the competitive 
 
            labor market as a whole (Tran. pp. 34, 46, & 63).  Hartwig 
 
            v. Bishop Implement Company, IV Iowa Industrial Commissioner 
 
            Report, 159 (App. Decn. June 24, 1984); Todd v. Department 
 
            of General Services, Buildings and Grounds, IV Industrial 
 
            Commissioner Report 373 (Iowa 1983).  Therefore, the fact 
 
            that claimant quietly performed her job pursuant to her own 
 
            commendable work ethic, in spite of her pain and physical 
 
            limitations, does not equate to the fact that claimant did 
 
            not suffer from a permanent impairment, a permanent 
 
            disability and substantial industrial disability.  
 
            
 
                 Moreover, industrial disability is not predicated 
 
            solely upon physical disability.  An increase of industrial 
 
            disability may occur without a change of physical condition.  
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980).
 
            
 
                 On August 9, 1991, claimant received a letter from the 
 
            director of the Department of Public Health, which stated 
 
            that effective with the close of business on September 12, 
 
            1991, that she would be laid off from her position as an 
 
            Accounting Technician II unless she elected otherwise.  She 
 
            was authorized to exercise a bump into the position of 
 
            Accounting Clerk I (Ex. 6, p. 103).  Claimant discussed this 
 
            possibility with Patricia Burgett, a co-employee who 
 
            occupied that position at that time.  Claimant testified 
 
            that Burgett told her what the job entailed, specifically 
 
            very heavy lifting, and claimant determined that she was 
 
            unable to perform that job.  
 
            
 
                 Burgett testified at the hearing that this job required 
 
            her to pick up, lift and carry 40, 50, 60, 70 and 100 pounds 
 
            weights.  Fries corroborated the testimony of Burgett (Tran. 
 

 
            
 
            Page   6
 
               
 
               
 
            p. 83).  
 
            
 
                 Claimant testified, and credibly so, that she was not 
 
            able to perform this job.  Claimant then investigated early 
 
            retirement and opted to receive early retirement which 
 
            allowed her to obtain approximately $1,800 in unused sick 
 
            pay, rather than to opt for a layoff with the remote 
 
            possibility of recall for the reason that there were rumors 
 
            of more layoffs, and no optimistic rumors of recalls at that 
 
            time in state government (Tran. p. 66).
 
            
 
                 Rosa E. Ervin, benefits supervisor of the Iowa Public 
 
            Employees Retirement system verified that claimant would 
 
            receive a substantial cash payment for her unused sick pay 
 
            if she retired but that she would not receive it if she were 
 
            laid off (Tran. pp. 19-23).
 
            
 
                 For these reasons, and for the reason that retirement 
 
            provided claimant with a regular income, whereas layoff did 
 
            not provide a regular income beyond unemployment 
 
            compensation, it cannot be said that claimant's choice, when 
 
            faced with this dilemma between two mutually unfavorable 
 
            options, was unreasonable.  
 
            
 
                 David J. Fries, division director of Plans and 
 
            Administration for the Department of Public Health, who was 
 
            claimant's supervisor, testified that claimant was a good 
 
            employee and that this layoff had no connection with 
 
            claimant's injury (Tran. pp. 75-79).  However, it is not a 
 
            matter of who is to blame or who might be at fault for the 
 
            layoff, industrial disability is based upon the fact that 
 
            claimant sustained a work injury and thereafter sustained 
 
            both a physical and nonphysical (economic) loss of earning 
 
            capacity which resulted in a significant amount of 
 
            industrial disability.  
 
            
 
                 It is determined that the physical limitations of the 
 
            work injury prevented claimant from bumping the accounting 
 
            clerk I and was the primary reason for the fact that 
 
            claimant was forced to retire as the most reasonable choice 
 
            between retirement or layoff at that time.  The fact that 
 
            claimant could not perform the accounting clerk I job was 
 
            sequelae of the work injury that occurred on December 28, 
 
            1989.  Oldham v. Scofield and Welch, 222 Iowa 764, 767, 266 
 
            N.W. 480, 482 (Iowa 1936).  Oldham determined that "where an 
 
            accident occurs to an employee in the usual course of his 
 
            employment, the employer is liable for all of the 
 
            consequences that naturally and proximately flow from the 
 
            accident."  Lawyer and Higgs, Iowa Workers' 
 
            Compensation--Law and Practice (Second Edition) section 4-4, 
 
            page 26.  Thus, the injury of December 28, 1989, was the 
 
            cause of both a physical and nonphysical (economic) loss of 
 
            earning capacity.  Hall v. Lehigh Portland Cement Co., II-1 
 
            Iowa Industrial Commissioner Report 160 (Appeal Decn. 1985).
 
            
 
                 William J. Snyder, assistant to the director of 
 
            personnel, testified that two other accounting technician II 
 
            persons who were laid off were recalled a short time later.  
 
            However, Snyder agreed that claimant would not have been 
 
            expected to know that early recalls were either a 
 

 
            
 
            Page   7
 
              
 
            
 
            
 
            possibility or a probability at the time she was forced to 
 
            decide whether to retire or be laid off (Tran. pp. 85-90).  
 
            Snyder testified, "The layoff notice when it is sent out, 
 
            typically there is little knowledge about when or if that 
 
            person will be recalled." (Tran. p. 90).
 
            
 
                 If claimant had been able to continue in the job of 
 
            Accounting Technician II position she would still be earning 
 
            $868 every two weeks ($434 per week).  Actually claimant 
 
            would probably be earning much more.  These are 1990 figures 
 
            (Ex. 1, p. 108).  Claimant also lost a certain amount of 
 
            employee benefits when she was forced to retire.  By 
 
            comparison her retirement check is $212 per month.  This 
 
            severe loss of actual earnings should however be tempered 
 
            and balanced by the fact that claimant is receiving 
 
            approximately $700 in social security retirement benefits.  
 
            Thus, claimant's retirement income is only about one-half of 
 
            what she earned as a full-time employee.  
 
            
 
                 However, claimant did not seriously search for any 
 
            employment after she was forced to make the decision between 
 
            early retirement and layoff with right of recall (Tran. p. 
 
            58).  Furthermore, even though claimant had planned to work 
 
            beyond age 65 it must still be considered that claimant was 
 
            approaching a retirement age which is a factor which reduces 
 
            industrial disability.  Lidgett v. Dubuque Packing Co., I-4 
 
            Industrial Commissioner 476 (1985).  Even though claimant 
 
            had planned to work beyond age 65, the fact that claimant 
 
            was age 63, and the fact that claimant appears to have 
 
            voluntarily accepted early retirement to avoid layoff does 
 
            nevertheless tend to reduce industrial disability.  At the 
 
            same time, her forced early retirement reduced her future 
 
            earnings that she would have earned between September of 
 
            1991 and whenever she would have retired, which in turn 
 
            reduced her potential, eventual retirement benefits.  This 
 
            too is a loss of earning capacity and an economic loss due 
 
            to this injury.
 
            
 
                 Claimant testified that her physical condition has 
 
            become worse over time.  At first she was unable to pick up 
 
            a gallon of milk and soon it became difficult to pick up a 
 
            cup of coffee (Ex. 4, p. 92).  With respect to claimant's 
 
            work ethic, she previously drove approximately 50 miles 
 
            round trip in order to perform the State of Iowa job and her 
 
            other Des Moines jobs, however, she testified that driving a 
 
            car with the right hand and arm since the injury had become 
 
            increasingly more difficult.  
 
            
 
                 The seriousness of the injury is further illustrated by 
 
            the fact that claimant's healing period lasted 22 weeks 
 
            which is approximately five months, before it was cut short 
 
            by her voluntary early return to work (Tran. p. 4).
 
            
 
                 Claimant testified there are a number of things that 
 
            she can no longer do in performing her household tasks and 
 
            her own personal care (Tran. pp. 43, 60-63; Ex. 6, p. 95). 
 
            
 
                 On July 3, 1990, Dr. Quenzer described claimant's 
 
            injury as a massive rotator cuff avulsion on the right (Ex. 
 
            1, p. 5).  On April 10, 1991, he said "the rotator cuff tear 
 

 
            
 
            Page   8
 
              
 
              
 
            was quite large" (Ex. 1, p. 3).  Dr. Quenzer also verified 
 
            that even though claimant was working full-time ten and 
 
            one-half months after the surgery, on April 10, 1991, that 
 
            she still had pain with activities of daily living, 
 
            tenderness over the scar, limited range of motion, pain, and 
 
            found it difficult to staple or remove staples (Ex. 1, p. 
 
            3).
 
            
 
                 Claimant started to work for employer on May 7, 1983 
 
            and retired effective September 11, 1991.  Thus, she worked 
 
            for employer for a period of approximately eight and 
 
            one-half years (Ex. 5, p. 71 & 72).
 
            
 
                 Wherefore, considering (1) that claimant experienced a 
 
            witnessed very severe specific traumatic injury to her right 
 
            dominant shoulder, (2) the seriousness of the injury which 
 
            caused a massive tear of claimant's right rotator cuff, (3) 
 
            that claimant sustained a 15 percent permanent impairment to 
 
            the body as a whole which is described in its many disabling 
 
            components in the body of the decision from which she never 
 
            fully recovered completely, (4) the fact that claimant was 
 
            forced to leave her employment either through layoff or 
 
            retirement because she established she was unable to perform 
 
            the duties of the position of accounting clerk I because of 
 
            the heavy weights involved, (5) the fact that claimant 
 
            suffered a loss of both earning capacity and actual earnings 
 
            for the period from September 11, 1991, when she retired 
 
            until the time she would have at least been age 65 on 
 
            January 10, 1993, a period of over one year, (6) considering 
 
            that claimant is foreclosed from a number of jobs in the 
 
            competitive employment market because of a serious loss of 
 
            function in her right shoulder, (7) based on claimant's age, 
 
            (8) based on claimant's education, (9) based on claimant's 
 
            work ethic and motivation, and (10) based on all of the 
 
            factors used to determine industrial disability, Christensen 
 
            v. Hagen, Inc., vol. I, no. 3, State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. Dec. March 26, 1985);  
 
            Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of 
 
            Iowa Industrial Commissioner Decisions 654, 658 (App. Dec. 
 
            February 28, 1985) and applying agency expertise [Iowa 
 
            Administrative Procedure Act 17A.14(5)], it is determined 
 
            that claimant has sustained a 30 percent industrial 
 
            disability to the body as a whole and is entitled to 150 
 
            weeks of permanent partial disability benefits.
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That the injury of December 28, 1989 to claimant's 
 
            right shoulder was the cause of permanent physical 
 
            disability.  Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 
 
            N.W.2d 607 (1945); Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).
 
            
 
                 That the injury of December 28, 1989, was the cause of 
 
            claimant being forced to choose between layoff and 
 
            retirement because due to the physical injury she was unable 
 
            to bump into the accounting clerk I job and she therefor 
 

 
            
 
            Page   9
 
              
 
            
 
            suffered an additional loss of earning capacity traceable to 
 
            this injury based upon economic factors.  McSpadden v. Big 
 
            Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Blacksmith v. All 
 
            American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 That claimant has sustained a 30 percent industrial 
 
            disability to the body as a whole and is entitled to 150 
 
            weeks of permanent partial disability benefits.  Iowa Code 
 
            section 85.34(2)(u).  
 
            
 
                                     ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant one hundred fifty (150) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of two hundred fifty-two and 48/100 dollars per week 
 
            ($252.48) as stipulated to by the parties in the total 
 
            amount of thirty-seven thousand eight hundred seventy-two 
 
            dollars ($37,872) commencing on May 1, 1991, as stipulated 
 
            to by the parties. 
 
            
 
                 That defendants are entitled to a credit for 
 
            seventy-five (75) weeks of permanent partial disability 
 
            benefits paid to claimant prior to hearing at the rate of 
 
            two hundred fifty-two and 48/100 dollars ($252.48) in the 
 
            total amount of eighteen thousand nine hundred thirty-six 
 
            dollars ($18,936) as stipulated to by the parties.
 
            
 
                 That these benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the 
 
            transcript of hearing, are charged to defendants pursuant to 
 
            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 pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of October, 1993.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Channing L. Dutton
 
            Attorney at Law
 
            Suite 500
 
            1200 35th Street
 
            West Des Moines, IA  50265
 
            
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            Mr. Greg Knoploh
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, IA  50319
 
            
 
 
            
 
            
 
            
 
            
 
                                           1803
 
                                           Filed October 29, 1993
 
                                           Walter R. McManus
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
             ____________________________________________________________
 
                        
 
            BETTIE M. SUDBROCK,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 949929
 
            DEPARTMENT OF PUBLIC HEALTH,    
 
                                              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.           
 
            ___________________________________________________________
 
            1803
 
            
 
                 Claimant was awarded 30 percent industrial disability.
 
            
 
                 Claimant fell and suffered a large tear of her rotator 
 
            cuff which never did heal completely.  The surgeon assessed 
 
            a 15 percent permanent impairment.
 
            
 
                 Claimant also suffered an economic loss due to this 
 
            injury.  When State of Iowa layoffs came in 1991, claimant 
 
            was unable to bump the person below her because of her 
 
            physical condition due to this injury.  Thus, claimant was 
 
            forced to choose between layoff and early retirement.  She 
 
            chose early retirement.  This was determined to be a 
 
            reasonable decision.  
 
            
 
                 The fact that claimant was forced to choose between 
 
            layoff and early retirement because of the residuals of this 
 
            injury prohibited her from bumping into the next available 
 
            job and this was determined to be an economic loss of 
 
            earning capacity.  McSpadden.  Blacksmith.
 
            
 
                 Claimant was age 61 at the time of the injury and age 
 
            63 at the time of her retirement.  It was determined that 
 
            claimant's age reduced her industrial disability even though 
 
            she had planned to work beyond age 65 but that it should not 
 
            reduce it substantially.  Claimant proved an extremely 
 
            admirable work ethic all of her life until and after this 
 
            injury.