BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
            
 
TONYA PIERSON,   
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                         File No. 951206
 
O'BRYAN BROTHERS,     
 
                                           A P P E A L
 
     Employer,   
 
                                         D E C I S I O N
 
and         
 
            
 
WAUSAU INSURANCE,     
 
            
 
     Insurance Carrier,   
 
     Defendants.      
 
_________________________________________________________________
 
The record, including the transcript of the hearing before the deputy 
 
and all exhibits admitted into the record, has been reviewed de novo on 
 
appeal.  The decision of the deputy filed July 8, 1994 is affirmed and 
 
is adopted as the final agency action in this case.
 
 
 
Defendants shall pay the costs of the appeal, including the preparation 
 
of the hearing transcript.
 
 
 
Signed and filed this ____ day of January, 1994.       
 
                                ________________________________                 
 
                                BYRON K. ORTON           
 
                                INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr. Robert W. Pratt
 
Attorney at Law
 
6959 University Avenue
 
Des Moines, Iowa 50311
 
 
 
Mr. E. J. Kelly
 
Attorney At Law
 
2700 Grand Ave., Ste 111
 
Des Moines, Iowa 50312
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                 5-1802; 5-1803; 1807
 
                                 Filed January 20, 1995
 
                                 Byron K. Orton
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
_________________________________________________________________
 
TONYA PIERSON,   
 
            
 
     Claimant,   
 
            
 
vs.         
 
                                         File No. 951206
 
O'BRYAN BROTHERS,     
 
                                           A P P E A L
 
     Employer,   
 
                                         D E C I S I O N
 
and         
 
            
 
WAUSAU INSURANCE,     
 
            
 
     Insurance Carrier,    
 
     Defendants.      
 
_________________________________________________________________
 
 
 
5-1802
 
 
 
Claimant was awarded healing period benefits from the time she was 
 
taken off work by the treating physician until a later orthopedic 
 
surgeon determined that he had exhausted conservative treatment 
 
measures, surgery was not indicated and claimant had minimal, if any, 
 
permanent impairment.
 
 
 
5-1803; 1807
 
 
 
Impairment ratings for the shoulder were (1) minimal, if any, (2) five 
 
percent, (3) five percent and (4) seven percent.  Claimant, age 29 at 
 
the time of injury, with a high school education, was foreclosed from 
 
repetitive work, overhead work, and restricted to light work at 
 
tabletop level.  She was working full-time managing her parents video 
 
store and also going to college full-time with a GPA of 3.48.  Her 
 
actual earning loss calculated out at 22 percent by one method and 30 
 
percent by another method.  Although employer's physician approved two 
 
jobs for her, employer nevertheless refused to offer claimant these 
 
jobs, or any employment.  Employer offered no rehabilitation to 
 
mitigate their industrial disability.  Although claimant's impairment 
 
ratings were not substantial, nevertheless, her industrial disability 
 
was substantial.  Claimant was awarded 30 percent industrial 
 
disability.
 
 
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            TONYA PIERSON, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.                        
 
                                                 File No. 951206
 
            O'BRYAN BROTHERS,   
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and                             
 
                      
 
            WAUSAU INSURANCE,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                                 INTRODUCTION
 
            
 
                 This is a proceeding in arbitration filed by Tonya 
 
            Pierson, claimant, against O'Bryan Brothers, employer, and 
 
            Wausau Insurance, insurance carrier, defendants for 
 
            benefits as the result of an injury which occurred on April 
 
            30, 1990.  A hearing was held in Des Moines, Iowa on 
 
            November 10, 1993, and the case was fully submitted at the 
 
            close of the hearing.  Claimant was represented by Robert W. 
 
            Pratt.  Defendants were represented by E. J. Kelly.  The 
 
            record consists of the testimony of Tonya Pierson, claimant, 
 
            claimant's exhibits 1 through 55, minus exhibits 6, 7 & 8, 
 
            which were withdrawn at the time of the hearing (Transcript 
 
            pages 105-121), and defendants' exhibits 1 through 4 (Tran. 
 
            pp. 8 & 25).  The deputy ordered a transcript of the hearing 
 
            (Tran. pp. 103 & 104).  Both attorneys submitted excellent 
 
            post-hearing briefs (Tran. pp. 104 & 105).
 
            
 
                                PRELIMINARY MATTER
 
            
 
                 Claimant contends that she sustained permanent 
 
            disability to her right shoulder and to her right wrist.  
 
            Although the right wrist symptoms first appeared in May of 
 
            1989 and the right shoulder symptoms first appeared in May 
 
            of 1990, the parties stipulated and have submitted this case 
 
            as one injury which occurred on April 30, 1990.
 
            
 
                 One of the major areas of dispute is whether the injury 
 
            to the right wrist was the cause of carpal tunnel syndrome 
 
            and the resulting permanent disability due to carpal tunnel 
 
            syndrome of the right wrist.  
 
            
 
                 The original notice and petition which was filed on 
 
            January 15, 1992, alleges only an injury to both shoulders, 
 
            neck and back from cumulative action of repeated shoulder 
 
            movements while verifying pin tickets.  The petition was not 
 
            amended prior to the hearing or at the time of hearing on 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            November 10, 1993, to mention an injury to the right wrist.  
 
            However, technical rules of pleading are not followed in 
 
            workers' compensation proceedings.
 
            
 
                 Defendants stipulated that claimant did sustain an 
 
            injury on the hearing report which occurred on April 30, 
 
            1990.  This stipulation extends to both the injury to the 
 
            right shoulder and the right wrist because both parties 
 
            obtained evidence during the discovery process about the 
 
            right wrist, submitted that evidence at the hearing and 
 
            requested a determination of whether the right wrist injury 
 
            was the cause of permanent disability due to carpal tunnel 
 
            syndrome of the right wrist.
 
            
 
                 The evidence supports the fact that claimant did 
 
            sustain an injury to her right wrist which was described as 
 
            right wrist pain which arose out of and in the course of 
 
            employment with employer.  However, the only issue to be 
 
            decided in this case with respect to the right wrist is 
 
            whether the injury was the cause of carpal tunnel syndrome 
 
            and any resulting permanent disability or medical treatment 
 
            from carpal tunnel syndrome.  
 
            
 
                                   STIPULATIONS
 
            
 
                 The parties stipulated to the following matters.
 
            
 
                 That claimant sustained an injury on April 30, 1990, 
 
            which arose out of and in the course of employment with 
 
            employer.  
 
            
 
                 That the proper rate of compensation in the event of an 
 
            award is $175.94 per week.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing.
 
            
 
                 Whether the injury was the cause of either temporary or 
 
            permanent disability.
 
            
 
                 Whether claimant is entitled to either temporary or 
 
            permanent disability benefits, and if so, the nature and 
 
            extent of benefits to which she is entitled, to include 
 
            whether claimant is entitled to scheduled member benefits 
 
            for an injury to a scheduled member, or whether claimant is 
 
            entitled to industrial disability benefits for an injury to 
 
            the body as a whole.
 
            
 
                 Whether claimant is entitled to the payment of medical 
 
            benefits for the evaluation and treatment of Douglas S. 
 
            Reagan, M.D., in the amount of $295 (Exhibit 54, page 89).
 
            
 
                 Whether claimant is entitled to a second independent 
 
            medical examination from Martin S. Rosenfeld, D.O., in the 
 
            amount of $790, under the facts of this case (Ex. 55, p. 
 
            90).  
 
            
 
                         
 

 
            
 
            Page   3
 
            
 
            
 
            
 
                        CAUSAL CONNECTION/ENTITLEMENT
 
            
 
                        temporary and permanent disability
 
            
 
                 It is determined that the injury to claimant's right 
 
            wrist was not the cause of either temporary or permanent 
 
            disability.
 
            
 
                 It is further determined that the injury to the right 
 
            wrist was not the cause of carpal tunnel syndrome and that 
 
            claimant is not entitled to permanent disability benefits or 
 
            medical treatment caused by the carpal tunnel syndrome.  
 
            
 
                 It is determined that the injury to the right shoulder 
 
            was the cause of both temporary and permanent disability to 
 
            the right shoulder and that claimant is entitled to both 
 
            temporary and permanent disability benefits for the injury 
 
            to the right shoulder.
 
            
 
                 It is determined that claimant is entitled to healing 
 
            period benefits from May 18, 1990, when claimant was taken 
 
            off work by Carl E. Rouse, M.D., until March 13, 1991, when 
 
            Joshua D. Kimelman, D.O., determined that claimant had 
 
            sustained maximum medical improvement and gave his 
 
            conclusions on the amount of permanent impairment.  
 
            
 
                 It is determined that claimant has sustained a 30 
 
            percent industrial disability to the body as a whole and 
 
            that claimant is entitled to 150 weeks of permanent partial 
 
            disability benefits.
 
            
 
                 Claimant, born October 15, 1961, was 28 years old at 
 
            the time of the injury and 32 years old at the time of the 
 
            hearing (Tran. p. 26).  Claimant graduated from high school 
 
            in 1980 at age 18 with average grades (Tran. p. 27).  
 
            Subsequent to that she took some computer classes at 
 
            Southwestern Area Community College (Tran. p. 87).  During 
 
            the last year of high school she worked part-time as a 
 
            secretary and performed the duties of typing, filing and 
 
            answering the telephone (Tran. p. 28).  Claimant has worked 
 
            part-time in a shoe store as a salesperson (Tran. p. 31).  
 
            She has worked part-time in a general merchandise store as a 
 
            stock clerk and checker (Tran. p. 31).  She worked about two 
 
            years in a grocery supermarket as a stock clerk and checker 
 
            (Tran. p. 32; Ex. 1, p. 2).
 
            
 
                 Claimant started to work for employer as a sewer on 
 
            March 27, 1984 (Tran. pp. 30 & 33; Ex. 1, p. 1).  Her 
 
            personal health was good at that time and she had no 
 
            problems with her wrists, hands or shoulders.  She did not 
 
            take a preemployment physical examination but did answer an 
 
            extensive medical questionnaire.  The information on the 
 
            application for employment shows that claimant was in 
 
            excellent health when she was hired by employer (Tran. pp. 
 
            33 & 34; Ex. 1, p. 3).  
 
            
 
                 Claimant testified that she was a sewer for three 
 
            years.  She described this work as follows.
 
            
 
                    A.  You have a tub beside you with bundles of 
 
                 whatever you're sewing tied up.  You pick the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 bundles up, put it on your lap.  You take out one 
 
                 garment.  You sew it, push it through when you're 
 
                 done, and put it to the other side of you (Tran. 
 
                 pp. 33 & 34).
 
            
 
                 Approximately three years later in 1987, claimant 
 
            became a verifier for shipping orders in the shipping 
 
            department.  She described the verifier job as follows.
 
            
 
                    A.  I'm next in line after the pickers.  The 
 
                 pickers pick the garments for the order and push 
 
                 them around on a trolley, and then when they come 
 
                 to me, I have to verify they got the right thing 
 
                 you have to have.  You undo the bundles.  You have 
 
                 the order in one hand, and you have to check every 
 
                 ticket on every single garment.  It's all above 
 
                 your head.  The trolley's up above your head 
 
                 (indicating), and you have to check and make sure 
 
                 everything's correct and tie it back up and push 
 
                 the trolley on. 
 
            
 
                    Q.  Are you reaching above your head a lot?
 
            
 
                    A.  Constantly the whole eight-hour day.  
 
            
 
                    Q.  Do you do that with both shoulders or just 
 
                 the right?
 
            
 
                    A.  Both
 
            
 
                    Q.  And do you also use your wrist or hand?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  Frequently?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  When you flip through the -- 
 
            
 
                    A.  You have to (indicating).
 
            
 
                    Q.  And you're demonstrating what you are 
 
                 telling us there?
 
            
 
                    A.  You have to count them when you're done, 
 
                 count how many is on the trolley.
 
            
 
                    Q.  With your right hand, you have your hand 
 
                 above your head level?  Am I correct?  You have to 
 
                 say yes.
 
            
 
                    A.  Yes.
 
            
 
                    Q.  How often do you do that activity?
 
            
 
                    A.  Eight hours a day, constant.  There's 
 
                 trolleys just backed up all the time.
 
            
 
                    Q.  What are on the trolleys?
 

 
            
 
            Page   5
 
            
 
            
 
            
 
                    A.  The garments --
 
            
 
                    Q.  I'm sorry.
 
            
 
                    A.  -- hanging on hangers.
 
            
 
                    Q.  What are the garments?  What are they 
 
                 manufacturing?
 
            
 
                    A.  Lady's lingerie and nightwear.  Some of 
 
                 it's really heavy.  Some of it's really light.  
 
                 (Tran. pp. 35-37).
 
            
 
                 Claimant testified that she began to have trouble with 
 
            her right wrist in May of 1989 and that she saw Carl E. 
 
            Rouse, M.D., at that time.  She related that he gave her a 
 
            brace to wear, but it separated her fingers, and she needed 
 
            her fingers together in order to do her job of grasping pin 
 
            tickets on garments and being able to count.  Claimant 
 
            related that the doctor then instructed her to use her whole 
 
            arm instead of just her wrist (Tran. pp. 39 & 40).
 
            
 
                 The office notes of Dr. Rouse verify claimant's 
 
            testimony above.  In addition they show that on May 19, 
 
            1989, while working at O'Bryan's over a period of time the 
 
            right wrist and arm got numb.  The chief complaint was the 
 
            right wrist.  Dr. Rouse noted that claimant had a job where 
 
            she was required to bend her wrist.  Thus, Dr. Rouse 
 
            provided causal connection of the employment to right wrist 
 
            pain.  There was no obvious abnormality on x-ray.  The x-ray 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            showed no fracture, dislocation or foreign body and it was 
 
            interpreted as essentially negative (Ex. 2, p. 7).  Dr. 
 
            Rouse found some swelling of the ulnar styloid, but grip 
 
            strength and reflexes were essentially the same bilaterally.  
 
            He diagnosed tendinitis.  Claimant lost no time from work 
 
            but rather continued to work shifting the effort to her arm 
 
            and shoulder rather than to her right wrist. (Ex. 5, p. 12).
 
            
 
                 Approximately a year later, on May 3, 1990, claimant 
 
            saw Dr. Rouse again, but this time the complaints were in 
 
            her shoulders, right worse than left.  The doctor reported 
 
            that she used her shoulders more in her work after the wrist 
 
            pain in May of 1989.  Dr. Rouse diagnosed overuse syndrome 
 
            secondary to activity at work (Ex. 2, p. 8).  Thus, again 
 
            Dr. Rouse provides causal connection between the employment 
 
            and the right shoulder pain.
 
            
 
                 On May 16, 1990, Dr. Rouse took claimant off work 
 
            effective May 18, 1990, because of right shoulder pain (Ex. 
 
            3, p. 10).  He prescribed Tollectin.  An x-ray of the right 
 
            shoulder on June 11, 1990, was normal (Ex. 4, p. 11).  The 
 
            doctor prescribed two weeks of physical therapy of 
 
            phonophoresis with hydrocortisone cream (Exs. 10-14).  When 
 
            this failed to give relief Dr. Rouse referred claimant to 
 
            Joshua D. Kimelman, D.O., an orthopedic surgeon (Tran. pp. 
 
            42-42; Ex. 1, p. 8; Ex. 4, p. 11).  The parties stipulated 
 
            that claimant's workers' compensation payments started on 
 
            May 18, 1990 (Tran. p. 44).  
 
            
 
                 An examination of the physical therapy notes for the 
 
            dates May 24, 1990, May 29, 1990, May 30, 1990, May 31, 
 
            1990, June 1, 1990, June 4, 1990, June 5, 1990, June 6, 
 
            1990, June 8, 1990, June 11, 1990, June 13, 1990, June 15, 
 
            1990, June 18, 1990 and June 28, 1990 are helpful.  The 
 
            physical therapist reported that claimant encountered pain 
 
            in her hand and wrist after she substituted shoulder 
 
            rotation for wrist ulnar/radial deviation (Ex. 11, p. 25).  
 
            However, the treatment on all of the foregoing dates was for 
 
            the right shoulder.  None of it was for the right wrist or 
 
            right hand (Exs. 10, 11, and 12, pp. 24-30).  On the 
 
            contrary, on the first visit the therapist noted, "Patient 
 
            denies any tingling, numbness, pain paresthesia in the right 
 
            upper extremity at this time." (Ex. 11, p. 25).  Thus, there 
 
            was no evidence of right hand or right wrist pain during 
 
            this period of physical therapy.  
 
            
 
                 Claimant saw Dr. Kimelman on June 20, 1990 (Tran. p. 
 
            45; Ex. 15, p. 34).  He too recorded that to avoid tingling 
 
            and numbness in the wrist and hand that she started rotating 
 
            her shoulder.  He said that claimant pointed to the anterior 
 
            acromium as the area of her pain.  She denied any pain 
 
            radiating into the arm, neck pain, tingling, numbness, etc. 
 
            (Ex. 15, p. 34).  A single anterior/posterior x-ray of the 
 
            shoulder was within normal limits.  Dr. Kimelman diagnosed, 
 
            "impingement syndrome, right shoulder." (Ex. 15, p. 34).
 
            
 
                 On July 25, 1990, claimant reported tingling and 
 
            numbness in the ulnar three digits of the right hand in 
 
            addition to shoulder pain.  On July 31, 1990, an EMG/NCV 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            study ordered by Dr. Kimelman disclosed nerve root 
 
            conduction velocity of the right median and the right ulnar 
 
            nerves was normal and the electromyographic study was normal 
 
            (Tran. pp. 47 & 48; Ex. 9, pp. 20-23).
 
            
 
                 On September 21, 1990, Dr. Kimelman reported clunking 
 
            and crepitation of the right shoulder with impingement 
 
            testing but no mention is made of right hand or wrist pain.  
 
            An MRI of the right shoulder on October 18, 1990, showed 
 
            inflammatory changes but no tear (Tran. p. 49).   A 
 
            cortisone injection of the subacromial bursa gave good 
 
            immediate relief but not lasting relief.  No mention is made 
 
            of the right hand or wrist (Ex. 17, p. 36; Tran. p. 50).
 
            
 
                 On November 14, 1990, Dr. Kimelman notified the 
 
            insurance carrier, "I feel she should avoid repetitive 
 
            overhead use of her right upper extremity.  She is able to 
 
            work at table top level (Ex. 18, p. 37; Tran. p. 50).  
 
            
 
                 Claimant was recalled to work on November 20, 1990 and 
 
            assigned to the task of inspector of garments.  This job 
 
            clearly violated the restrictions just imposed by Dr. 
 
            Kimelman.  Claimant described this job of garment inspector 
 
            as follows.
 
            
 
                    A.  There's a big bin beside you with garments 
 
                 that are already fully sewn, and you pick them up 
 
                 out of that, you lay them on the table, and you 
 
                 inspect them for flaws in the material, for flaws 
 
                 in sewing.  Then you put them on the hangers, and 
 
                 hang them up above you, and when you get a bundle 
 
                 then done, which is twenty-four garments, you have 
 
                 to take those twenty-four and put them up higher 
 
                 (indicating) on to a rail there that leads them 
 
                 through the steam tunnel.
 
            
 
                    Q.  Is that overhead activity?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  Is it repetitive activity?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  Was it heavier work than you were doing?
 
            
 
                    A.  Yes, because before I didn't have to lift 
 
                 the garment.
 
            
 
                    Q.  Were you able to do that job?
 
            
 
                    A.  No.
 
            
 
                    Q.  What problems did you have doing that job?
 
            
 
                    A.  It hurt my shoulder.
 
            
 
                    Q.  Did you tell someone at work?
 
            
 
                    A.  Yes.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
                    Q.  Who did you tell?
 
            
 
                    A.  Marilyn Boswell.
 
            
 
                    Q.  And what did she do after you told her 
 
                 that?
 
            
 
                    A.  She told me not to try it anymore.
 
            
 
                    ...
 
            
 
                    Q.  Did you come back to work the next day?
 
            
 
                    A.  No.
 
            
 
                    Q.  Why not?
 
            
 
                    A.  They didn't have any other job for me.
 
            
 
                    Q.  Did they tell you not to come back?
 
            
 
                    A.  Yes.
 
            
 
                    Q.  Have you been contacted by anyone from 
 
                 O'Bryan Brothers since November 1990 to return to 
 
                 work?
 
            
 
                    A.  No. (Tran. pp. 52-54)
 
            
 
                 Claimant returned to Dr. Kimelman on November 29, 1990, 
 
            for follow-up of impingement of the right shoulder but no 
 
            mention is made of the right wrist.  He said the cortisone 
 
            injection was ineffective.  He restricted claimant to "light 
 
            duty work with no overhead lifting." (Ex. 19, p. 38; Tran. 
 
            p. 56).
 
            
 
                 On January 25, 1991, claimant reported continued pain 
 
            to her right shoulder with limited motion.  Dr. Kimelman 
 
            commented, 
 
            
 
                    It was thought that there would be a light duty 
 
                 job for her with no overhead lifting, however, 
 
                 that never panned out and she has not returned to 
 
                 work.  
 
            
 
                    ... She's failed to respond to conservative 
 
                 treatment including rest, exercise, physical 
 
                 therapy, cortisone injection and I believe the 
 
                 next step would be impingement release if symptoms 
 
                 warrant.  She reports that she may have an 
 
                 opportunity to perform a different type of work 
 
                 and she's not sure if her symptoms bother her 
 
                 enough for an operation.
 
            
 
                    RECOMMEND that she consider her alternatives.  
 
                 Get back to me and we'll see her back again in one 
 
                 month.  She could resume light duty with no 
 
                 overhead lifting if available to her (Ex. 20, p. 
 
                 39).
 

 
            
 
            Page   9
 
            
 
            
 
            
 
                 Claimant testified that Dr. Kimelman said that she 
 
            should find something different to do (Tran. p. 56).  She 
 
            testified that she had a list of places that she had tried, 
 
            "lots of places" where she had looked for work (Tran. p. 
 
            57).  The list was not introduced into evidence, however.  
 
            
 
                 Dr. Kimelman reported to the insurance company on March 
 
            13, 1991, that claimant was suffering from impingement 
 
            syndrome to her shoulder.  No mention is made of any problem 
 
            to her wrist.  The doctor said that claimant failed to 
 
            respond to conservative treatment.  He said that she had 
 
            very minimal, if any, permanency associated with this 
 
            injury.  He added that if she were to have an impingement 
 
            release the impairment would be approximately 5 percent 
 
            depending upon her recovery, range of motion, strength, 
 
            stability, etc. (Ex. 21, p. 40).
 
            
 
                 This letter by Dr. Kimelman on March 13, 1991, is 
 
            determined by this deputy to be a statement by Dr. Kimelman 
 
            that claimant had obtained maximum medical improvement in 
 
            his opinion on this date.  Prior to that time improvement 
 
            through surgery, had been a consideration, but was ruled out 
 
            as of March 13, 1994.  
 
            
 
                 Dr. Kimelman wrote a final letter to defendants' 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            counsel on September 28, 1993, which will be discussed later 
 
            in this decision.
 
            
 
                 On February 20, 1991, claimant was examined and 
 
            evaluated by Scott B. Neff, D.O., an orthopedic surgeon (Ex. 
 
            22, p. 41).  No reason for the switch to Dr. Neff was given 
 
            when Dr. Kimelman was already treating claimant as the 
 
            authorized physician.  He said that claimant's right 
 
            shoulder was abnormal.  The impingement maneuver was 
 
            markedly positive, with several limitations in range of 
 
            motion.  
 
            
 
                 Dr. Neff determined that claimant had a Type III or 
 
            hooked acromion with a large inferior spur which predisposed 
 
            claimant to impingement syndrome and subacromial bursitis.  
 
            The doctor said that he could see on x-ray that the greater 
 
            tubberosity of the humerus was impinging on the lateral 
 
            aspect of the acromion.  Dr. Neff proposed three 
 
            alternatives:  (1) seek employment elsewhere, (2) create or 
 
            modify a job for her, or (3) perform a subacromial 
 
            decompression with release of the coracoacromial ligament 
 
            and acromioplasty (Tran. p. 61).
 
            
 
                 On March 22, 1991, Dr. Neff reviewed a video of the 
 
            garment inspector job and said that he believed that 
 
            claimant could perform it.  However, this is the job that 
 
            claimant tried on November 20, 1991 and she was unable to do 
 
            it (Tran. pp. 62-64).  It is the conclusion of this deputy 
 
            that both employer and employee agreed on November 20, 1991, 
 
            that claimant was unable to perform the garment inspector 
 
            job.  Dr. Neff said that claimant could possibly perform the 
 
            verifier job with certain job modifications in her work 
 
            station (Ex. 23, p. 44).  However, these modifications were 
 
            not made by employer.  
 
            
 
                 On April 1, 1991, Dr. Neff clarified that claimant had 
 
            impingement syndrome and a large acromial spur and that 
 
            repetitious activity in the elevated position would give her 
 
            persistent problems.  He further stated that "she does not 
 
            have any permanent impairment." (Ex. 24, p. 45; Tran. p. 
 
            64).  This contradicts his opinion on March 22, 1991, that 
 
            she could perform the verifier job because it is both over 
 
            head and repetitive.  Likewise, his opinion that she cannot 
 
            perform repetitive, overhead work is totally inconsistent 
 
            with his opinion that claimant has no permanent impairment.
 
            
 
                 Dr. Neff changed his opinion on April 17, 1991, when he 
 
            found (1) tenderness over the anterior of the right 
 
            acromion, (2) coracoid tenderness and (3) positive 
 
            impingement maneuver.  He found a reduced range of motion of 
 
            the shoulder and stated, "Based on her range of motion loss, 
 
            this patient has sustained a 5 percent impairment of her 
 
            right upper extremity as a result of this circumstance." 
 
            (Ex. 25, p. 46; Tran. pp. 64 & 65).  Dr. Neff gave no 
 
            explanation for his sudden change of opinion in the 17 days 
 
            between April 1, 1991, (when he said there was no permanent 
 
            impairment) and April 17, 1991, (when he said that claimant 
 
            had a 5 percent permanent impairment).  
 
            
 
                 Dr. Neff recommended to the insurance carrier that they 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            find work that claimant could perform.  He said that surgery 
 
            would be reserved for symptoms which are uncontrollable and 
 
            unacceptable after work alteration (Ex. 25, pp. 46 & 47).  
 
            There is no evidence that defendants did in fact, or even 
 
            attempt to, provide any modified work to claimant after this 
 
            recommendation by Dr. Neff. 
 
            
 
                 On October 31, 1991, Dr. Neff wrote to the insurance 
 
            carrier stating that claimant's impairment was to the arm 
 
            and not to the body as a whole based upon a recent supreme 
 
            court decision which the doctor did not cite (Ex. 26, p. 
 
            48).  
 
            
 
                 Whether an injury is to the arm or to the body as a 
 
            whole for workers' compensation purposes is a determination 
 
            that is properly within the province of the industrial 
 
            commissioner.  Doctors follow a medical model in making this 
 
            determination, whereas, the industrial commissioner follows 
 
            the law.  
 
            
 
                 For medical purposes the upper extremity which Dr. Neff 
 
            rated includes the shoulder.  
 
            
 
                 Gray's Anatomy, page 134, defines the upper extremity 
 
            as follows:  "The bones of the upper extremity consist of 
 
            those of the shoulder girdle, of the arm, the forearm, and 
 
            the hand."  Thus, in medical terms the upper extremity 
 
            extends from the tips of the fingers through the shoulder 
 
            girdle.  This terminology of the upper extremity is further 
 
            verified by the Guides to the Evaluation of Permanent 
 
            Impairment, 4th Edition, published by the American Medical 
 
            Association, on pages 3/17 and 3/18 at figures 1 and 2, 
 
            where it shows the upper extremity to be the entire arm and 
 
            the shoulder girdle.  The Guides further state, "The hand 
 
            and upper extremity section considers evaluation of the 
 
            thumb, finger, wrist, elbow, and shoulder regions."  Guides, 
 
            Section 3.1 The hand and Upper Extremity.  This is why 
 
            physicians rate arm injuries in terms of the upper 
 
            extremity.  Likewise, they also rate shoulder injuries in 
 
            terms of the upper extremity.  Therefore, an upper extremity 
 
            rating by a physician requires a closer analysis for 
 
            workers' compensation purposes.  
 
            
 
                 The Iowa Workers' Compensation Law does not have a 
 
            benefit entitlement for a disability, loss or loss of use to 
 
            the upper extremity.  The words upper extremity are not used 
 
            anywhere in the workers' compensation law or more 
 
            particularly in Iowa Code section 85.34(2), Permanent 
 
            Partial Disabilities.
 
            
 
                 For workers' compensation purposes the arm is a 
 
            scheduled member with a limitation of 250 weeks of benefits.  
 
            Iowa Code section 85.34(2)(m).  In all other cases of 
 
            permanent partial disability, other than the scheduled 
 
            members listed in paragraphs a through t, the compensation 
 
            is based upon a percentage of 500 weeks.  Iowa Code section 
 
            85.34(2)(u).
 
            
 
                 The dividing line between the arm and the body as a 
 
            whole for workers' compensation purposes is the 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            gleno-humeral joint, which is a a ball and socket joint, 
 
            with the ball being head of the humerus of the arm and the 
 
            socket being the gleno-cavity of the scapula, which is on 
 
            the body side of the shoulder joint.  Everything distal to 
 
            the gleno-humeral joint is the arm.  Everything proximal to 
 
            the gleno-humeral joint belongs to the body as a whole.  
 
            This clarification of this issue was recently affirmed, 
 
            pronounced and promulgated by the industrial commissioner in 
 
            the case of Haffner v. Electrical Systems, File No. 955542 
 
            (Appeal Decn., Feb. 25, 1994).  
 
            
 
                 In this case the parts of the body which are affected, 
 
            injured and disabled are primarily parts of the body as a 
 
            whole according to the notes of Dr. Kimelman, Dr. Neff and 
 
            the physical therapist.  
 
            
 
                 The first office visit of Dr. Kimelman states that 
 
            claimant pointed to the anterior acromion as the area of 
 
            pain.  He said she denied radiating pain to the arm, neck 
 
            pain, tingling, numbness etc. (Ex. 15, p. 34).  The acromion 
 
            is part of the body as a whole.  It is not a part of the 
 
            arm.  Dr. Kimelman gave claimant a cortisone injection in 
 
            the subacromial bursa.  The subacromial bursa is a part of 
 
            the body as a whole.  It is not a part of the arm.  Dr. 
 
            Kimelman consistently referred to the injury as a shoulder 
 
            injury (Ex. 15, p. 21).
 
            
 
                 In Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 
 
            N.W.2d 161, (1949) defendants contended that a shoulder 
 
            injury was an injury to the arm.  The supreme court 
 
            disagreed, citing Dailey v. Pooley Lumber Company, 233 Iowa 
 
            758, 763, 765, 10 N.W.2d 569, 573 (1943) and stated that 
 
            defendants' assumption that an injury to a shoulder is a 
 
            scheduled member injury is unwarranted.  The court said that 
 
            the arm section of the Code does not apply to the shoulder, 
 
            nor is the shoulder designated as a scheduled member in any 
 
            other section of the Code.  Alm, at page 1177. 
 
            
 
                 Dailey v. Pooley held at page 765 that where the injury 
 
            is to a scheduled member, and also to other parts of the 
 
            body not included in the schedule, then the resultant 
 
            permanent disability, if established, is compensable as an 
 
            injury to the body as a whole.
 
            
 
                 Similarly, the supreme court stated, in Lauhoff Grain 
 
            v. McIntosh, 395 N.W.2d 834 (Iowa 1986), "We conclude that 
 
            Iowa Code section 85.34(2)(o) in defining a leg, does not 
 
            include a hip joint."  
 
            
 
                 Thus, it would appear to this deputy that the Supreme 
 
            Court of the state of Iowa has concluded that shoulder 
 
            injuries and hip injuries are injuries to the body as a 
 
            whole as a matter of law in the absence of compelling 
 
            evidence to the contrary.  The court further stated in the 
 
            Lauhoff case, "The AMA Guide relied on is of doubtful 
 
            authority in this case, in any event, because it includes 
 
            the hip as part of the 'lower extremity' a term which is not 
 
            found in our statutory schedule." (Lauhoff pp. 839 & 840).
 
            
 
                 Dr. Neff found that claimant had a Type III or hooked 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            acromion with a large acromial spur which predisposed her to 
 
            impingement syndrome and subacramial bursitis.  On x-ray he 
 
            could see the greater tubersity of the humerus impinging on 
 
            the lateral aspect of acromion.  Thus, by Dr. Neff's own 
 
            description of the injury and disability it affects and 
 
            involves parts of the body as a whole, to wit, the acromion 
 
            and the subacromial bursa.
 
            
 
                 Further confirmation that this is an injury to the body 
 
            as a whole is found in the physical therapy notes for the 
 
            several physical therapy treatments between May 24, 1990 and 
 
            June 28, 1990, where the therapist refers to the anterior 
 
            portion of the shoulder, the posterior portion of the 
 
            shoulder, the pectoral muscle on the right, the insertion of 
 
            the levator scapula, the tendon to the infraspinatous 
 
            muscle, the teres minor muscle, the acromio-clavicular joint 
 
            and the coracoid process, which are all parts of the body as 
 
            a whole because they are found on the body side of the 
 
            gleno-humeral joint (Ex. 11 & 12, pp. 25-30).
 
            
 
                 The greater tuberosity and lesser tuberosity of the 
 
            humerus, which are parts of the arm, are mentioned in the 
 
            physical therapist's notes, but they are mentioned not 
 
            because they are injured, but rather because they caused 
 
            aggravation and pain when they came in contact with the 
 
            acromion which is the body part that suffered the injury, 
 
            impairment and disability.  
 
            
 
                 Gray's Anatomy, at page 144, further defines the arm as 
 
            follows:  "The arm is that portion of the upper extremity 
 
            which is situated between the shoulder and the elbow.  Its 
 
            skeleton consists of a single bone, the humerus.  
 
            
 
                 Gray's Anatomy, at page 150, defines the forearm as 
 
            follows:  "The forearm is that portion of the upper 
 
            extremity which is situated between the elbow and the wrist.  
 
            Its skeleton is composed of two bones, the ulna and the 
 
            radius."
 
            
 
                 Thus, for workers' compensation purposes the arm is 
 
            constituted by the skeletal bones of the humerus, ulna and 
 
            radius.  
 
            
 
                 None of these bones or surrounding tissue was 
 
            determined to be injured by either Dr. Kimelman or Dr. Neff.  
 
            The parts these doctors found to be injured and disabled 
 
            were parts of the body as a whole.
 
            
 
                 The shoulder, and more particularly the acromion, 
 
            scapula, coracoid process and subacromial bursa are not a 
 
            part of the arm, because they are proximal to the 
 
            gleno-humeral joint and are considered to be parts of the 
 
            body as a whole for which benefits are awarded under Iowa 
 
            Code section 85.34(2)(u).  
 
            
 
                 The parts of the arm in the shoulder joint were not 
 
            determined to be injured or disabled.  The major arm part is 
 
            the head of the humerus which consists of the greater 
 
            tuberosity, the lesser tuberosity and the bicipital groove.  
 
            The injury, the impairment, the loss, the loss of use, the 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            permanent disability all occurred to parts of the body as a 
 
            whole.  Thus, even if parts of the arm were considered to be 
 
            injured, which they were not, claimant would still be 
 
            determined to have sustained an injury to the body as a 
 
            whole because the injury and disability extended beyond the 
 
            scheduled member to the body as a whole under the rule in 
 
            the Dailey case.
 
            
 
                 Moreover, Dr. Neff based his permanent impairment 
 
            rating on a loss of motion in the shoulder.  The industrial 
 
            commissioner determined some time ago that a loss of range 
 
            of motion in the shoulder was sufficient to cause an injury 
 
            to be considered an injury to the body as a whole.  
 
            Fullerton v. Caterpiller Tractor Co., IV Iowa Industrial 
 
            Commissioner Report 135 (App. Dec. 1984).
 
            
 
                 On December 30, 1991, Dr. Neff reviewed two more job 
 
            descriptions and videos for two jobs with employer, (1) the 
 
            "spaghetti operator" and (2) the "machine label maker", and 
 
            determined, "There is no medical reason from an orthopedic 
 
            surgical standpoint why this patient cannot do either of 
 
            these jobs." (Ex. 27, p. 49).  Claimant testified that she 
 
            did not receive a call from employer offering her either one 
 
            of these two jobs or any other job at any time after 
 
            November 20, 1990 (Tran. pp. 54 & 68).  
 
            
 
                 The Iowa Supreme Court has stated that an employer's 
 
            refusal to provide any work for an injured employee is a 
 
            factor of disability irrespective and independent of 
 
            functional impairment.  McSpadden v. Big Ben Coal Co., 288 
 
            N.W.2d 181, 192 (Iowa 1980).  Thus, even though claimant's 
 
            permanent impairment rating is not large, nevertheless, her 
 
            industrial disability is greatly increased by the fact that 
 
            employer considers claimant to be unemployable.
 
            
 
                 It is highly inconsistent for an employer to argue that 
 
            the injured employee is only slightly disabled and at the 
 
            same time have no work that she can do even when the 
 
            authorized treating physician has determined that there are 
 
            two jobs that she can do at employer's place of business.  2 
 
            Larson, Workman's Compensation Law, section 57.61(b) at 
 
            pages 10-398 and 10-403; Killinger v. Mark Wells 
 
            Distributing Co., File Nos. 775851 and 808991, arbitration 
 
            decision filed October 27, 1989 ( Appealed 11-15-89,  
 
            Settled 12-21-89).
 
            
 
                 On September 27, 1991, Jerome G. Bashara, M.D., 
 
            performed an independent medical examination after reviewing 
 
            the medical evidence in this case.  He noted that the EMG of 
 
            July 31, 1990, was interpreted as normal.  At the time of 
 
            Dr. Bashara's examination claimant only had "occasional 
 
            numbness and tingling in the right hand." (Ex. 41, p. 69).  
 
            Dr. Bashara found tenderness over the rotator cuff and 
 
            subacromial bursa, which are parts of the body as a whole, 
 
            and not the arm.  She had crepitation and impingement of the 
 
            shoulder and moderate restriction of motion.  Dr. Bashara 
 
            noted the subacromial spur on Dr. Rouse's x-rays of June 11, 
 
            1990 and Dr. Neff's x-ray of February 20, 1991.  He said 
 
            that the MRI of October 10, 1990, showed abnormal signals 
 
            throughout the rotator cuff and glenoid labrum.  
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Bashara diagnosed rotator cuff tendinitis, 
 
            subacromial bursitis, and impingement syndrome of the right 
 
            shoulder, all of which are indicative of an injury to the 
 
            body as a whole.   He recommended restriction of no 
 
            repetitive use of the right shoulder and no lifting overhead 
 
            of 10 pounds on a repetitive basis.  He determined that 
 
            claimant had sustained a 7 percent permanent impairment of 
 
            her right upper extremity related to her shoulder (Ex. 41, 
 
            pp. 68-70).
 
            
 
                 Claimant returned to Dr. Neff on March 30, 1992, almost 
 
            two years after the original injury of April 30, 1990, 
 
            complaining of numbness and tingling in her right hand and 
 
            that it gets cold while simply walking in the evening (Tran. 
 
            p. 70).  Dr. Neff referred claimant to William Koenig, M.D., 
 
            a physical medicine and rehabilitation physician for 
 
            evaluation of fibrositis, fibromyalgia, an EMG and a 
 
            possible bone scan (Ex. 28, p. 50).  Dr. Koenig saw claimant 
 
            on April 23, 1992 and identified her primary complaint in 
 
            the shoulder in the area of the acromion and the pectoral 
 
            area.  She also complained of paresthesias of the hand when 
 
            exposed to cold, walking or driving a car.  Tinel sign was 
 
            negative at the elbow and wrist.  He diagnosed fibrositis 
 
            syndrome and possible carpal tunnel syndrome (Ex. 42, p. 
 
            71).
 
            
 
                 The results of Dr. Koenig's EMG study were "EMG study 
 
            is normal.  No evidence seen for nerve root compression, 
 
            right, et. al.  IMPRESSION:  mild right carpal tunnel 
 
            syndrome." Ex. 44, p. 74).  It would appear that claimant's 
 
            carpal tunnel syndrome was indeed very mild if there was no 
 
            nerve root compression.  The earlier EMG in July of 1990, 
 
            which was found to be normal, did not find any nerve root 
 
            compression either.
 
            
 
                 Dr. Koenig refused to comment on causation.  He stated, 
 
            "As secondary or tertiary consultants it is not our policy 
 
            to agree or disagree e our referred sources re causality.  
 
            The only time we do so (make opinion) is when we are primary 
 
            treating source." (Ex. 48, p. 79).
 
            
 
                 Dr. Koenig referred claimant to Douglas S. Reagan, 
 
            M.D., for possible surgery when Dr. Neff refused (without 
 
            explanation) to continue to see her (Tran. pp. 73-75 & 127; 
 
            Ex. 42, p. 71; Ex. 47, p. 78).
 
            
 
                 Dr. Reagan saw claimant on August 20, 1992 for both 
 
            shoulder and hand complaints.  His x-rays were unremarkable.  
 
            He diagnosed, (1) possible subacromial bursitis, (2) carpal 
 
            tunnel syndrome, (3) possible thoracic outlet syndrome and 
 
            (4) myofascial pain syndrome versus fibromyalgia as noted by 
 
            Dr. Koenig.  Several options were discussed and claimant 
 
            wanted to proceed with carpal tunnel surgery (Ex. 49, pp. 
 
            80-82; Ex. 50, p. 83).  
 
            
 
                 On January 25, 1993, Dr. Reagan opined that the carpal 
 
            tunnel syndrome was not caused by claimant's work for 
 
            employer, but it was aggravated by it.  Dr. Reagan based his 
 
            opinion in part on the fact that claimant had continuous 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            discomfort since the onset of symptoms in April of 1989, 
 
            however, the medical evidence summarized above does not 
 
            reflect any serious continuing complaints about her right 
 
            hand or wrist while treating with either Dr. Kimelman or Dr. 
 
            Neff or during her independent medical examination with Dr. 
 
            Bashara.  
 
            
 
                 Dr. Reagan explained, "... the literature would suggest 
 
            that anywhere between 8% and 40% of carpal tunnel syndromes 
 
            are not associated with a positive EMG." (Ex. 51, p. 84).  
 
            Dr. Reagan's report also suggests that a finding for carpal 
 
            tunnel syndrome on EMG may develop later after the onset of 
 
            the clinical symptoms (Ex. 51, p. 84).  He estimated that 
 
            claimant had a small amount of impairment in the right hand 
 
            in the range of 1 percent to 2 percent based on discomfort 
 
            in the hand (Ex. 51, p. 84).
 
            
 
                 On August 24, 1993, claimant was examined by Martin S. 
 
            Rosenfeld, D.O., an orthopedic surgeon, for a second 
 
            independent medical examination.  He stated that her hand 
 
            was worse than her shoulder at that time.  He said she was 
 
            dropping things and being awakened at night.  Dr. Rosenfeld 
 
            found Tinel, Phalen and carpal compression all present on 
 
            the right, and also found a positive impingement present in 
 
            the right shoulder.  Dr. Rosenfeld's impression was (1) 
 
            repetitive use injury of the right upper extremity with 
 
            residual carpal tunnel syndrome and (2) right shoulder 
 
            impingement syndrome.  He recommended surgery to both areas.  
 
            Without the surgery at the time of his examination he 
 
            assessed that claimant had a 5 percent impairment to the 
 
            right upper extremity as a result of her impingement 
 
            syndrome and another 5 percent impairment to the right upper 
 
            extremity as a result of her carpal tunnel syndrome (Ex. 25, 
 
            pp. 86 & 87).
 
            
 
                 Dr. Kimelman reported again on September 28, 1993, that 
 
            claimant initially told him that the substituted use of her 
 
            shoulder, instead of her wrist, was successful because the 
 
            tingling and numbness in her hand was not a presenting 
 
            complaint.  She had a negative Phalen's test.  Subsequently, 
 
            she complained of some numbness in the ulnar three digits 
 
            but that an EMG showed no evidence of nerve entrapment in 
 
            July of 1990.  Dr. Kimelman opined, "I do not feel that 
 
            carpal tunnel syndrome arising in 1992 could result from on 
 
            the job activity occurring in April, 1990." (Ex. A-2, p. 3).  
 
            Dr. Kimelman said that he had reviewed the reports of both 
 
            Dr. Neff and Dr. Reagan and that he was in agreement with 
 
            Dr. Neff's reports.  Dr. Kimelman added, "I agree in review 
 
            of Dr. Bashara's notes that he did not find evidence of 
 
            carpal tunnel syndrome when he evaluated Ms. Pierson." (Ex. 
 
            A-2, p. 4).
 
            
 
                 On September 29, 1993, Dr. Neff stated, "If, however, 
 
            repetitious activity associated with a specific work place 
 
            or job stops, then that activity can no longer continue to 
 
            contribute to the development eventually of carpal tunnel 
 
            syndrome." (Ex. A-3, p. 7).  
 
            
 
                 With respect to the shoulder impingement syndrome Dr. 
 
            Neff stated, "It is my opinion that impingement syndrome or 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            subacromial bursitis can be directly related to the 
 
            repetitious activity and use of the arm at and above the 
 
            shoulder height or repetitious push-pull, back-and-forth 
 
            activity." (Ex. A-3, p. 8).  
 
            
 
                 Thus, Dr. Neff states that the carpal tunnel syndrome 
 
            disability was not caused by this injury but agrees that 
 
            impingement syndrome disability was caused by this injury 
 
            because the proven facts are that claimant did perform 
 
            repetitive work with her arms above shoulder height for 
 
            several years.
 
            
 
                 Claimant admitted that she did some sewing and 
 
            performed some craft work at home in 1990 and that it made 
 
            her hand and arm complaints worse (Tran. pp. 93 & 95).  She 
 
            testified that sometimes she sewed at home three days a week 
 
            and sold some of the items (Tran. pp. 91-94).  She is no 
 
            longer able to do these jobs for more than 20 to 30 minutes 
 
            at a time (Tran. pp. 92 & 93).  Claimant further related 
 
            that the repetitive activities at work were constant whereas 
 
            the sewing and craft activities at home were simply leisure 
 
            activities (Tran. p. 102).  
 
            
 
                 From the foregoing evidence it is determined that the 
 
            injury was the cause of permanent disability to claimant's 
 
            right shoulder, but that it was not the cause of the carpal 
 
            tunnel syndrome disability which manifested itself two years 
 
            later after the initial injury date in this case and three 
 
            years after claimant first complained of right wrist pain on 
 
            May 19, 1989 (Ex. 5, p. 12).  Even though claimant contends 
 
            that she was having wrist and shoulder problems when she saw 
 
            Dr. Kimelman she admitted that he did not treat her wrist 
 
            (Tran. pp. 58 & 59).
 
            
 
                 Claimant also indicated that Dr. Neff treated her right 
 
            hand and wrist but this contention is not borne out by Dr. 
 
            Neff's record (Tran. pp. 65 &68).  Dr. Neff stated that when 
 
            he treated her that her primary complaints were to her 
 
            shoulder (Ex. 38, p. 63).  
 
            
 
                 The opinion of Dr. Kimelman and Dr. Neff that the 
 
            injury did not cause carpal tunnel disability is preferred 
 
            over the testimony of Dr. Reagan and Dr. Rosenfeld.  
 
            Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 
 
            192 (Iowa 1985).  Dr. Koenig did not make a specific 
 
            statement as to whether the employment injury was the cause 
 
            of any permanent carpal tunnel disability (Exs. 42-47, pp. 
 
            71-79).  In fact, Dr. Koenig declined to give any opinion on 
 
            causation (Ex. 48, p. 79).
 
            
 
                 Claimant received physical therapy treatments a second 
 
            time at the direction of Dr. Koenig on May 7, 1992, May 8, 
 
            1992, May 11, 1992, May 13, 1992, May 14, 1992 and May 18, 
 
            1992.  It is noted that all of it was directed to her 
 
            shoulder and none of it was directed to her right hand or 
 
            wrist (Ex. 13 & 14, pp. 31-33).
 
            
 
                 Again, the notes of the physical therapist demonstrate 
 
            that the parts of the body affected by the injury which 
 
            needed treatment were parts of the body on the proximal side 
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            of the gleno-humeral joint such as the infraspinitous 
 
            muscle, levator scapula, supraspinatous, trapezius, scapula, 
 
            neck, and paraspinal muscles (Exs. 13 & 14, pp. 31-33).  
 
            
 
                 It is determined that claimant is entitled to temporary 
 
            disability benefits for a period of healing which began on 
 
            May 18, 1990, when Dr. Rouse took claimant off work for this 
 
            injury (Ex. 3, p. 10; Tran. p. 88).  Claimant's attorney 
 
            stated on the record that the parties agreed that workers' 
 
            compensation benefits were begun on May 18, 1990 (Tran. p. 
 
            44).  The healing period benefits should terminate on March 
 
            13, 1991, when Dr. Kimelman indicated that he had exhausted 
 
            his efforts at conservative treatment and indicated that 
 
            claimant had minimal if any permanency and restricted 
 
            claimant from overhead work (Ex. 21, p. 40).  This latter 
 
            date selected by the deputy coordinates closely with the 
 
            date of the impairment rating of Dr. Neff of 5 percent of 
 
            the right upper extremity on April 17, 1991.  However, the 
 
            date of March 13, 1991 comes first.  Iowa Code section 
 
            85.34(1).  The healing period from March 18, 1990 until 
 
            March 13, 1991 constitutes a period of 42.714 weeks. 
 
            
 
                 Dr. Neff's statement that maximum medical improvement 
 
            occurred four months after the date of her injury of April 
 
            3, 1990 [sic] is unrealistic.  If that was the case he 
 
            should have said that she had reached maximum medical 
 
            improvement as of August 3, 1990, when he first saw claimant 
 
            on February 20, 1991, but he did not do so (Ex. 30, p. 53).  
 
            Dr. Kimelman had been the treating physician during the bulk 
 
            of the period of disability and he should be the best judge 
 
            of when claimant attained maximum medical improvement (Ex. 
 
            21, p. 40).  
 
            
 
                 It is determined that claimant has sustained a 30 
 
            percent industrial disability to the body as a whole caused 
 
            by the right shoulder impingement syndrome.  Claimant's 
 
            permanent impairment ratings are not large.  Dr. Kimelman 
 
            said it was minimal, if any.  Dr. Neff allowed 5 percent.  
 
            Dr. Bashara assessed 7 percent.  Dr. Rosenfeld said it was 5 
 
            percent for the shoulder.  Nevertheless, claimant's loss of 
 
            earning capacity is substantial.  
 
            
 
                 Dr. Kimelman, the treating physician, imposed several 
 
            severe restrictions (Ex. 18, p. 37; Ex. 19, p. 38; Ex. 20, 
 
            p. 39).  She is foreclosed from overhead work and is 
 
            restricted to work at tabletop level.  She is foreclosed 
 
            from repetitive work.  She is not to perform any overhead 
 
            lifting.  She is restricted to light duty work (Ex. 18, p. 
 
            37; Ex. 19, p. 38; Ex. 20, p. 39).  Dr. Neff said claimant 
 
            should not engage in any heavy manual labor activities (Ex. 
 
            30, p. 53).  Dr. Bashara said she should perform no lifting 
 
            overhead of ten pounds on a repetitive basis (Ex. 41, pp. 
 
            68-70).  Thus, claimant is foreclosed from her former 
 
            employment with this employer of six years.  Michael v. 
 
            Harrison County, Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 218, 220 (App. Dec. January 30, 
 
            1979);  Rohrberg v. Griffin Pipe Products Co., I Iowa 
 
            Industrial Commissioner Report 282 (1984).  
 
            
 
                 Claimant is also either foreclosed or limited on her 
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            previous employments of secretarial work, stock clerk work, 
 
            and check-out cashier.  Claimant is foreclosed from most 
 
            production line types of work which are some of the most 
 
            common jobs in the competitive labor market.  
 
            
 
                 Claimant's disability must be quite substantial because 
 
            Dr. Neff reviewed two job descriptions and two videos for 
 
            employer and said that claimant could do either one of these 
 
            two jobs.  However, she was not offered either one of them, 
 
            or any other employment with employer, who employs 
 
            approximately 125 people.  This is strong evidence of 
 
            claimant's significant unemployability.  
 
            
 
                 Claimant testified that she cannot sleep on her right 
 
            shoulder (Tran. p. 78).  She related that her shoulder aches 
 
            all of the time and that it makes clunking noises if she 
 
            tries to use it (Tran. p. 79).  Performing household duties 
 
            make her symptoms worse (Tran. p. 91).  Claimant testified 
 
            that she looked for work at a number of places after she 
 
            reached maximum medical improvement on March 13, 1991 and 
 
            before she began to work for her parents managing a video 
 
            store on March 13, 1992 (Tran. pp. 69 & 79).  She testified 
 
            that she had a list of places where she had attempted to 
 
            find employment but no lists were introduced into evidence.  
 
            She related that she read the newspaper and checked for 
 
            employment in Leon, Osceola and Lorimor. 
 
            
 
                 Claimant's motivation between March of 1991 and March 
 
            of 1992 may have been affected by the fact that she received 
 
            workers' compensation benefits until July 12, 1991 (Tran. p. 
 
            7).  In addition, claimant is married and her husband works 
 
            at two jobs, one is a salaried job and the other is a 
 
            self-employment job (Tran. pp. 28 & 29).  Claimant also had 
 
            three small grade school children at home during this period 
 
            of time (Tran. p. 29).  Claimant testified that she might 
 
            have drawn some unemployment compensation but she could not 
 
            recall for sure (Tran. p. 97).
 
            
 
                 Claimant was earning $6.45 per hour for employer at the 
 
            time of her injury.  She was earning $5.00 per hour at the 
 
            time of the hearing managing the video store (Tran. p. 38).  
 
            This is an actual 22 percent loss plus fringe benefits of 
 
            sick leave, medical insurance, paid vacation, and profit 
 
            sharing which should rightfully be taken into consideration 
 
            (Tran. p. 38).  Claimant's current job has no fringe 
 
            benefits.  
 
            
 
                 Claimant testified that it was normal to receive a 
 
            raise of 25 cents per hour or more each year and that if she 
 
            had remained with employer that she would currently being 
 
            receiving a wage of $7.20 per hour (Tran. pp. 82-84 & 99).  
 
            If this is correct, then claimant's actual loss of earnings 
 
            would be 30 percent plus the value of the fringe benefits 
 
            above (Tran. pp. 17 & 18).
 
            
 
                 Defendants opted to offer claimant no vocational 
 
            rehabilitation to mitigate her industrial disability loss 
 
            although Dr. Kimelman stated that claimant should find 
 
            different employment.  Dr. Neff enjoined employer to find a 
 
            job which claimant could perform, but employer refused to do 
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            so.
 
            
 
                 Claimant has initiated her own personal rehabilitation 
 
            program by enrolling in Graceland College at the end of the 
 
            Summer of 1992 as a full-time student.  Her plan is to 
 
            receive a bachelor of arts degree in sociology and to get 
 
            into human services (Tran. pp. 80, 81 and 102).  She has a 
 
            grade point average of 3.48.  Claimant related that she 
 
            borrowed money for school (Tran. p. 82) and that she also 
 
            has two grants (Tran. p. 87).  Claimant also works full-time 
 
            managing a video store.
 
            
 
                 Claimant is suitable for retraining based upon her high 
 
            school education with average grades, the computer courses 
 
            she took after high school and her current grade point 
 
            average of 3.48 considering the fact that she also is 
 
            working full-time.  Conrad v. Marquette School, Inc., IV 
 
            Iowa Industrial Commissioner Report 74, 89 (1984).
 
            
 
                 Claimant's age of 28 at the time of injury and 32 at 
 
            the time of hearing indicate that retraining is suitable and 
 
            that she should pursue new lines of endeavor in order to 
 
            mitigate her industrial disability.  At the same time 
 
            college training is expensive and tends to increase her 
 
            industrial disability. 
 
            
 
                 Based upon the foregoing factors 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.
 
            
 
                          SECTION 85.27 MEDICAL BENEFITS
 
            
 
                 It is determined that defendants are liable for the 
 
            bill of Douglas M. Reagan, M.D., in the amount of $295.  
 
            
 
                 Dr. Neff was an authorized physician.  He referred 
 
            claimant to Dr. Koenig.  Dr. Koenig referred claimant back 
 
            to Dr. Neff for surgical evaluation and Dr. Neff refused to 
 
            see claimant.  Dr. Koenig then referred claimant to Dr. 
 
            Reagan.
 
            
 
                 It is a well known principle of workers' compensation 
 
            law that when a treating physician refers an injured 
 
            employee to another physician the second physician becomes 
 
            the agent of the authorized treating physician.  Limoges v. 
 
            Meier Auto Salvage, I Iowa Industrial Commissioner Report 
 
            207 (1981); Kittrell v. Allen Memorial Hospital, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            164 (1969). In this case Dr. Neff referred claimant to Dr. 
 
            Koenig and Dr. Koenig referred claimant to Dr. Reagan.  
 
            Claimant simply followed the instructions of the authorized 
 
            treating physicians provided to her by the employer and 
 
            insurance carrier.  Defendants therefore should be liable 
 
            for the medical expenses which they caused to be generated 
 
            by Dr. Reagan in the amount of $295.  Dr. Reagan was not 
 
            claimant's choice of physician.  She was referred there by 
 
            authorized treating physicians which the employer paid and 
 
            thus acknowledged that they were authorized treating 
 
            physicians.  Coble v. Metromedia, Inc., Thirty-fourth 
 

 
            
 
            Page  21
 
            
 
            
 
            
 
            
 
            Biennial Report of the Industrial Commissioner 71 (1979); 
 
            Munden v. Iowa Steel and Wire, Thirty-third Biennial 
 
            Report of the Iowa Industrial Commissioner 99 (1977).
 
            
 
                 Therefore, it is determined that defendants are liable 
 
            for the bill of Dr. Reagan in the amount of $295.
 
            
 
                 Claimant testified that she wanted and was entitled to 
 
            carpal tunnel surgery from Dr. Reagan for her continuing 
 
            disability in her right hand and wrist (Tran. p. 18, 78, & 
 
            122).
 
            
 
                 Even though Dr. Reagan is determined to be an 
 
            authorized physician and entitled to be paid by defendants 
 
            it is nevertheless determined that the right carpal tunnel 
 
            syndrome disability was not caused by this injury.  
 
            Therefore, claimant is not entitled to carpal tunnel surgery 
 
            at the expense of the employer and insurance carrier.  
 
            
 
                 Claimant further acknowledged on the record at the time 
 
            of the hearing that her health insurance carrier had turned 
 
            her down for surgery because the carpal tunnel was an 
 
            on-the-job injury (Tran. p. 98).  Now that it has been 
 
            determined that the carpal tunnel syndrome disability was 
 
            not caused by her employment, then claimant should be 
 
            entitled to coverage by the health insurance carrier (Tran. 
 
            pp. 21-25).
 
            
 
                         SECTION 85.39 MEDICAL EXPENSE
 
            
 
                 It is determined that defendants do not owe for the 
 
            second independent medical examination performed by Dr. 
 
            Rosenfeld in the amount of $790.  First of all, Iowa Code 
 
            section 85.39 only authorizes one independent medical 
 
            examination.  Secondly, it has been determined in this 
 
            decision that the employer and insurance carrier are not 
 
            liable for the carpal tunnel syndrome disability.  
 
            Therefore, defendants should not be liable for an 
 
            independent medical examination for a disability for which 
 
            they are not liable.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That the injury of April 30, 1990, was the cause of 
 
            right shoulder permanent disability.  Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. 
 
            Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That the injury of April 30, 1990, was not the cause of 
 
            right hand or wrist permanent disability.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl 
 
            v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
 
            
 
                 That claimant is entitled to healing period benefits 
 
            from May 18, 1990 to March 13, 1991.  Iowa Code section 
 
            85.34(1).
 
            
 

 
            
 
            Page  22
 
            
 
            
 
            
 
            
 
                 That claimant has sustained a permanent disability to 
 
            the right shoulder which is an injury to the body as a 
 
            whole.  Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 
 
            N.W.2d 161 (1949); Lauhoff Grain v. McIntosh, 395 N.W.2d 834 
 
            (Iowa 1986); Haffner v. Electrical Systems, File No. 955542 
 
            (Appeal Decn., Feb. 25, 1994).
 
            
 
                 That claimant has sustained a 30 percent industrial 
 
            disability to the body as a whole and is entitled to 150 
 
            weeks of workers' compensation permanent partial disability 
 
            benefits.  Iowa Code section 85.34(2)(u).  
 
            
 
                 That claimant is entitled to recover the medical 
 
            expenses of Dr. Reagan in the amount of $295.
 
            
 
                 That claimant is not entitled to a second independent 
 
            medical examination from Dr. Rosenfeld in the amount of 
 
            $790.
 
            
 
                                     ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 That defendants pay to claimant forty-two point seven 
 
            one four (42.714) weeks of healing period benefits at the 
 
            stipulated rate of one hundred seventy-five and 94/100 
 
            dollars ($175.94) per week in the total amount of seven 
 
            thousand five hundred fifteen and 10/100 dollars ($7,515.10) 
 
            commencing on March 18, 1990.
 
            
 
                 That defendants pay to claimant one hundred fifty (150) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of one hundred seventy-five and 94/100 
 
            dollars ($175.94) per week in the total amount of twenty-six 
 
            thousand three hundred ninety-one dollars ($26,391.00) 
 
            commencing on March 13, 1991.  
 
            
 
                 That defendants are entitled to a credit for sixty (60) 
 
            weeks of workers' compensation benefits paid to claimant 
 
            prior to hearing at the rate of one hundred seventy-five and 
 
            94/100 dollars ($175.94) per week in the total amount of ten 
 
            thousand five hundred fifty-six and 40/100 dollars 
 
            ($10,556.40). 
 
            
 
                 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 
 
            medical services two hundred ninety-five dollars ($295.00) 
 
            for the services of Dr. Reagan.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the cost 
 
            of 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 
 

 
            
 
            Page  23
 
            
 
            
 
            
 
            
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of July, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert W. Pratt
 
            Attorney at Law
 
            6959 University Ave.
 
            Des Moines, IA  50311-1540
 
            
 
            Mr. E. J. Kelly
 
            Attorney at Law
 
            2700 Grand Ave.
 
            Suite 111
 
            Des Moines, IA  50312
 
            
 
 
            
 
            
 
            
 
            
 
                                 2901, 2906, 5-1802, 5-1803, 1803.1,               
 
                                 1807, 2501, 2505, 2700, 2502 
 
                                 Filed July 8, 1994
 
                                 Walter R. McManus, Jr.
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            TONYA PIERSON, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 951206
 
            O'BRYAN BROTHERS,   
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            WAUSAU INSURANCE,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            2901, 2906
 
            The petition alleged a right shoulder injury.  In the course 
 
            of treatment and discovery a diagnosis of right carpal 
 
            tunnel syndrome developed about two years after the 
 
            stipulated injury date.  The deputy proceeded on the basis 
 
            that the stipulated injury date applied to both the right 
 
            shoulder injury and the right wrist injury because technical 
 
            rules of pleading are not followed by the industrial 
 
            commissioner and because both parties had secured all of the 
 
            evidence they wanted about the right wrist and submitted it 
 
            into evidence.  The major issue to be decided was whether 
 
            the right wrist injury was the cause of right carpal tunnel 
 
            syndrome and any resulting permanent disability, or medical 
 
            treatment, resulting from the right carpal tunnel syndrome.
 
            
 
            1108, 1108.50, 1401, 1402.40
 
            It was determined that the injury was the cause of permanent 
 
            disability to the right shoulder.  It was determined that 
 
            the injury was the cause of right wrist pain, but that it 
 
            was not the cause of the carpal tunnel syndrome, or any 
 
            permanent disability resulting from the carpal tunnel 
 
            syndrome.
 
            
 
            5-1802
 
            Claimant was awarded healing period benefits from the time 
 
            she was taken off work by the treating physician until a 
 
            later orthopedic surgeon determined that he had exhausted 
 
            conservative treatment measures, surgery was not indicated 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            and claimant had minimal, if any, permanent impairment.
 
            
 
            1803.1
 
            It was determined that a shoulder injury is an injury to the 
 
            body as a whole and not a scheduled member injury.  This was 
 
            established as a matter of law by Alm, Dailey, and Lauhoff.  
 
            Furthermore, the industrial commissioner just recently gave 
 
            his most current precedential determination of this issue in 
 
            Haffner.  Other cites are given from Gray's Anatomy and 
 
            the Guides to the Evaluation of Permanent Impairment.
 
            
 
            5-1803, 1807
 
            Impairment ratings for the shoulder were (1) minimal, if 
 
            any, (2) 5 percent, (3) 5 percent and (4) 7 percent.  
 
            Claimant, age 29 at the time of injury, with a high school 
 
            education, was foreclosed from repetitive work, overhead 
 
            work, and restricted to light work at tabletop level.  She 
 
            was working full-time managing her parents video store and 
 
            also going to college full-time with a GPA of 3.48.  Her 
 
            actual earnings loss calculated out at 22 percent by one 
 
            method and 30 percent by another method.  Although 
 
            employer's physician approved two jobs for her, employer 
 
            nevertheless refused to offer claimant these jobs, or any 
 
            employment.  Employer offered no rehabilitation to mitigate 
 
            their industrial disability.  Although claimant's impairment 
 
            ratings were not substantial, nevertheless, her industrial 
 
            disability was substantial.  Claimant was awarded 30 percent 
 
            industrial disability.
 
            
 
            2501, 2505, 2700
 
            A treating orthopedic surgeon referred claimant to a 
 
            rehabilitation physician for an evaluation.  The 
 
            rehabilitation physician referred claimant back to the 
 
            orthopedic surgeon for surgical evaluation.  The orthopedic 
 
            surgeon refused to see or treat claimant.  Whereupon, the 
 
            rehabilitation physician referred claimant to a different 
 
            orthopedic surgeon for surgical evaluation and he 
 
            recommended surgery.  Defendants refused to pay the second 
 
            orthopedic surgeon.  Defendants were ordered to pay his 
 
            charges.  A referral physician is considered to be the agent 
 
            of the referring physician and is entitled to be paid by 
 
            defendants.  Precedents cited in the decision.  
 
            Claimant never asked to see the second orthopedic surgeon.  
 
            She simply followed the instructions of authorized 
 
            physicians.  She should not be liable for his charges.  
 
            Defendant should be liable for his charges.
 
            It was further determined that since it was determined that 
 
            the carpal tunnel syndrome was not caused by this injury, 
 
            that claimant was not entitled to carpal tunnel surgery, or 
 
            further medical treatment for the carpal tunnel syndrome.  
 
            Claimant testified that her group health insurer refused to 
 
            pay because the carpal tunnel was a workers' compensation 
 
            injury.  This decision should establish for the group health 
 
            insurer that it was not a workers' compensation injury.  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            2502
 
            It was determined that claimant was not entitled to a second 
 
            independent medical examination after the carpal tunnel 
 
            syndrome was diagnosed some two years after the stipulated 
 
            injury date and three years after claimant was treated for 
 
            right wrist pain without any intervening treatment for it.
 
            First, the statute (Iowa Code section 85.39) only authorizes 
 
            one independent medical examination.
 
            
 
            Second, since claimant failed to prove that the carpal 
 
            tunnel syndrome or the disability resulting from it was 
 
            caused by this injury, then defendants should likewise not 
 
            be liable for an independent medical examination for a 
 
            condition for which they were not liable.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         FRED BLOM, JR.,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 951305
 
         AG DIMENSIONS CORP. a/k/a     :
 
         GOLDEN HILL PORK,             :      A R B I T R A T I O N
 
                                       :
 
              Employer,                :         D E C I S I O N
 
                                       :
 
         and                           :
 
                                       :
 
         AETNA CASUALTY & SURETY       :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Fred Blom, Jr., against his employer, Ag Dimensions 
 
         Corp. a/k/a Golden Hill Pork, and its insurance carrier, Aetna 
 
         Casualty & Surety Company, defendants.  The case was heard on 
 
         November 21, 1991, in Council Bluffs, Iowa.
 
         
 
              The hearing was set for 11:00 a.m. on the aforementioned 
 
         date.  Claimant was sent a copy of the hearing assignment order 
 
         by certified mail.  The signed and returned certified mail 
 
         receipt was filed with the office of the industrial commissioner 
 
         on May 6, 1991.  The receipt bore the signature of "Carol Blom."  
 
         The date of delivery of the hearing assignment order was listed 
 
         as May 3, 1991.
 
         
 
              At the hearing, claimant did not appear, nor did anyone 
 
         appear on claimant's behalf.  Tom Plaza, attorney, appeared on 
 
         behalf of the defendants.  No evidence was presented on behalf of 
 
         any party.
 
         
 
                     findings of fact and conclusions of law
 
         
 
              The party who would suffer loss if an issue were not estab
 
         lished has the burden of proving that issue by a preponderance of 
 
         the evidence.  Iowa R. of App. P. 14(f).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the alleged injury actually occurred and that 
 
         it arose out of and in the course of employment.  The words 
 
         "arising out of" refer to the cause or source of the injury.  The 
 
         words "in the course of" refer to the time, place and circum
 
         stances of the injury.  Sheerin v. Holin Co., 380 N.W.2d 415, 417 
 
         (Iowa 1986); McClure v. Union, et al., Counties, 188 N.W.2d 283, 
 
         287 (Iowa 1971).
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
              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, 354 (Iowa 
 
         1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 
 
         (Iowa 1974).
 
         
 
              In the case at hand, claimant failed to appear.  No one 
 
         appeared for claimant.  Claimant did not present any evidence.  
 
         Consequently, he failed to meet his burden of proof.  Claimant 
 
         takes nothing from these proceedings.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant takes nothing from these proceedings.
 
         
 
              Costs are taxed to claimant pursuant to rule 343 IAC 4.33.
 
         
 
         
 
         
 
              Signed and filed this ____ day of November, 1991.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Fred Blom, Jr.
 
         Box 654
 
         Sherburn MN  56171
 
         REGULAR & CERTIFIED MAIL
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         701 Pierce St  STE 200
 
         P O Box 3086
 
         Sioux City  IA  51102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1400
 
                           Filed November 26, 1991
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            FRED BLOM, JR.,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 951305
 
            AG DIMENSIONS CORP. a/k/a     :
 
            GOLDEN HILL PORK,             :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1400
 
            Claimant failed to appear at the hearing.  No evidence was 
 
            presented.  Claimant did not meet his burden of proof.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CATHY M. KRUSE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          : File Nos. 874897 & 951310 
 
            ARMOUR FOOD COMPANY,          :
 
                                          :  A R B I T R A T I O N
 
                 Self-Insured,            :
 
                 Employer,                :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a consolidated hearing before the Iowa 
 
            Industrial Commissioner filed by Cathy Kruse.  Claimant 
 
            filed a petition for arbitration in file number 874897 
 
            against Armour Food Company identified as employer and 
 
            Hartford Insurance Company identified as insurer, alleging 
 
            an injury on January 13, 1988.  Claimant also filed a claim, 
 
            file number 951310, against self-insured Armour Food Company 
 
            for an alleged injury on May 4, 1990.  Both claims were 
 
            brought to recover benefits under the Iowa Workers' 
 
            Compensation Act.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on November 
 
            15, 1991, in Mason City, Iowa.  The record was considered 
 
            fully submitted at the close of the hearing.  The record in 
 
            this case consists of testimony from Cathy M. Kruse and Gary 
 
            Schmidt and claimant's exhibits 1 through 27 and 29 through 
 
            30 and defendants' exhibit L.
 
            
 
                                      Issues
 
            
 
                 Pursuant to the prehearing report and order and 
 
            statement of the parties at the hearing, the following 
 
            issues have been submitted for resolution:
 
            
 
                 1.  Whether claimant's injury is limited to her right 
 
            upper extremity or extends into the body as a whole;
 
            
 
                 2.  The extent of entitlement to weekly compensation 
 
            for permanent disability, if defendants are liable for the 
 
            injury;
 
            
 
                 3.  The commencement date of permanent partial 
 
            disability benefits, in the event such benefits are awarded; 
 
            and
 
            
 
                 4.  Whether claimant is entitled to payment of medical 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            benefits and mileage expenses for an independent medical 
 
            examination under Iowa Code section 85.39.
 
            
 
                                 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 September 23, 1958.  She was 
 
            married on July 26, 1975, and became widowed on June 30, 
 
            1979.  She has one child.  Claimant lives on a 120 acre farm 
 
            which she owns and manages.  She attended high school 
 
            through the tenth grade and received a GED certificate in 
 
            1976.  After high school, she took some college courses at 
 
            Hamilton Business College and North Iowa Community College.  
 
            She completed three years of college and plans to obtain her 
 
            bachelor's degree sometime in the future.  In June 1991, she 
 
            invested $1000 in NIS Financial Services program and after 
 
            passing the required tests, she obtained her license to sell 
 
            mutual funds and other types of financial services and 
 
            insurance.  She is self-employed and works out of her home.  
 
            
 
                 Claimant started working at Armour Food on July 12, 
 
            1984.  She initially started working part-time in the 
 
            sausage packing department.  Occasionally she worked full 
 
            time and was laid off during slow periods.  
 
            
 
                 On January 14, 1988, claimant developed severe pain in 
 
            her right wrist with some swelling.  She saw K.B. Washburn, 
 
            M.D., the company physician.  On January 18, 1988, she was 
 
            seen by T.C. Mead, M.D.  He diagnosed a very acute de 
 
            Quervain's syndrome.  She was given a limited return to work 
 
            release on February 4, 1988, but was put on plant wide 
 
            layoff.  Dr. Washburn prescribed a work hardening program 
 
            which claimant performed at home.  She returned to work in 
 
            June 1988 and was taken off work on July 11, 1988, with 
 
            exacerbation of her symptoms.  Dr. Mead recommended surgery, 
 
            but wanted a second opinion.  He sent claimant to Arnold E. 
 
            Delbridge, M.D., whose practice is limited to orthopedic and 
 
            hand surgery (exhibit 1).
 
            
 
                 Dr. Delbridge saw claimant on July 27, 1988, and he 
 
            noted a very positive de Quervain's sign.  He also noted 
 
            other signs of upper extremity overuse including tennis 
 
            elbow and some shoulder bursitis.  He recommended surgical 
 
            intervention (ex. 3).
 
            
 
                 On August 5, 1988, claimant underwent a tenosynovectomy 
 
            with release of the de Quervain's contracture (ex. 4).
 
            
 
                 Dr. Mead released claimant to return to work in October 
 
            1988.  She returned to the dry sausage department performing 
 
            regular duties and working long hours.  When reevaluated by 
 
            Dr. Mead in November-December 1988, she complained of 
 
            shoulder and neck pain.  Because of persistent complaints, 
 
            Dr. Washburn took claimant off work on January 3, 1989, and 
 
            ordered EMG and nerve conduction studies (ex. 1, pp. 9-10).
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Nerve conduction studies of claimant's right upper 
 
            extremity were performed on January 4, 1989.  There was no 
 
            evidence of any acute nerve involvement and no evidence of 
 
            carpal tunnel syndrome.  Dr. Washburn commented that, "The 
 
            patient is still sensitive wherever I touch her.  I believe 
 
            there is a great deal of psychogenic overlay in this 
 
            patient."  (ex. 5).  
 
            
 
                 Claimant continued to be seen at the Park Clinic in 
 
            Mason City, Iowa, by Dr. Washburn and other staff members.  
 
            On April 21, 1989, she was reevaluated by Dr. Delbridge.  He 
 
            indicated that x-rays showed no abnormalities.  He 
 
            recommended physical therapy (ex. 3).  On May 3, 1989, 
 
            claimant began a series of chiropractic treatments because 
 
            of acute cervical pain.  Her last treatment was on June 7, 
 
            1989, at which time it was noted that she, "Has had very 
 
            little pain or discomfort." (ex. 6).
 
            
 
                 Claimant returned to work on May 25, 1989, for four 
 
            hours a day.  On June 30, 1989, Dr. Washburn took her off 
 
            work again due to "all kinds of aches and pains in her back 
 
            and shoulder, arm, etc."  (ex. 1, p. 16).  Employer sent 
 
            claimant to Samuel R. Hunt, M.D., who released her for light 
 
            duty on July 31, 1989 (ex. 8).  Dr. Hunt referred claimant 
 
            to the Mason City Clinic where she was examined by R.L. 
 
            Emerson, M.D., on August 9, 1989.  Claimant's complaints 
 
            were referable to neck and back symptoms.  X-rays of the 
 
            lumbosacral spine were normal.  Neck x-rays were not taken.  
 
            Clinical examination revealed normal and full cervical spine 
 
            motion.  Straight leg raising in the sitting and supine 
 
            positions was negative.  Dr. Emerson recommended 
 
            anti-inflammatory medication (ex. 9).  
 
            
 
                 On August 11, 1989, claimant was evaluated at the Mason 
 
            City Clinic by Thomas F. DeBartolo, M.D.  After conducting a 
 
            physical examination, Dr. DeBartolo concluded that claimant 
 
            has some localized discomfort along the radiosensory nerve 
 
            on the right side.  He arranged for an occupational therapy 
 
            program for desensitization over the area of the previous 
 
            surgical release (ex. 10).  Meanwhile, Dr. Washburn 
 
            discharged her from his services on November 7, 1989 (ex. 1, 
 
            p. 17).
 
            
 
                 On November 30, 1989, claimant was reevaluated by Dr. 
 
            Hunt.  He noted that she was having no right wrist 
 
            discomfort and full range of motion with no tenderness at 
 
            this time.  Her strength was intact and she felt capable of 
 
            returning to work.  She was advised against returning to the 
 
            same type of repetitive hand and wrist activity which caused 
 
            her initial symptoms (ex. 11). 
 
            
 
                 Claimant returned to work on December 18, 1989.  She 
 
            was placed in the dry sausage department where she did 
 
            significant lifting, pulling and clipping.  She started 
 
            having problems with her arms, neck and shoulders. 
 
            
 
                 On April 3, 1990, claimant was evaluated by James K. 
 
            Coddington, M.D.  At this time, she presented with 
 
            complaints of right elbow pain as a result of making boxes 
 
            and peeling pepperoni.  Diagnosis of lateral epicondylitis 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            was made and she was put on light duty for one week.  On 
 
            April 10, 1990, she presented to Dr. Coddington with 
 
            complaints of neck and right elbow pain.  He diagnosed neck 
 
            strain and lateral epicondylitis.  On April 18, 1990, she 
 
            presented with similar complaints.  On examination, she had 
 
            fairly normal range of motion of the neck and good range of 
 
            motion of the elbow.  He indicated that neck strain may be 
 
            more neck pain due to fatigue from not sleeping.  Cervical 
 
            spine films taken on April 10, 1990, failed to reveal any 
 
            evidence of fracture, dislocation or other bone injury.
 
            
 
                 Claimant was referred by her attorney to Dr. DeBartolo 
 
            for a permanent impairment rating and assessment.  He 
 
            reported in pertinent part as follows:
 
            
 
                 ...The patient clearly had a work-related 
 
                 deQuervain's [sic] and clearly has had an acute 
 
                 worsening of her right upper extremity function 
 
                 after that surgery.  There is no specific 
 
                 diagnosis that I believe can be made concerning 
 
                 her right upper extremity soreness, muscle 
 
                 tenderness, fatigability, etc. other than pain 
 
                 dysfunction syndrome.
 
            
 
                 ...
 
            
 
                 ...Your client has finally come to the realization 
 
                 that she is indeed not going to be able to perform 
 
                 repetitive hand and wrist activities and that her 
 
                 hope for the best possible resolution of this 
 
                 problem lies with her obtaining vocational 
 
                 retraining and into a line of work that is more 
 
                 satifactory [sic] in terms of her physical 
 
                 capabilities.
 
            
 
            (exhibit 12)
 
            
 
                 Dr. DeBartolo noted that, "[M]y rating would be 20% 
 
            loss of the function of her right upper extremity secondary 
 
            to the development of pain dysfunction syndrome secondary to 
 
            surgery for a work-related deQuervain's [sic] release."  
 
            (ex. 10, p. 9).
 
            
 
                 Claimant saw Dr. Emerson on May 15, 1990, for 
 
            complaints of diffuse right lateral elbow pain.  On 
 
            examination, she was neurologically intact.  She had 
 
            palpable tenderness over the lateral epicondyle of the right 
 
            elbow.  X-rays taken of the right elbow were negative.  She 
 
            was injected with a cortisone solution.  She was reevaluated 
 
            on May 22, 1990, and reported no improvement in her 
 
            condition with the injection.  Dr. Emerson was unable to 
 
            determine the etiology of her right upper extremity symptoms 
 
            (ex. 9, pp. 3-6).
 
            
 
                 On July 2, 1990, Dr. Emerson and Dr. Coddington 
 
            indicated that they concurred with Dr. DeBartolo's 20 
 
            percent right upper extremity rating (exs. 17-19).  On 
 
            September 7, 1990, Dr. Emerson wrote to the insurance claims 
 
            examiner that, "I feel that Ms. Cathy Kruse's signs and 
 
            symptoms are indicative of approximately 20% impairment to 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the upper extremity.  I do not think that she had a 
 
            re-injured her shoulder in March of 1990, I think it is just 
 
            a continuation of the previous-type of symptoms." (ex. 20).
 
            
 
                 Being dissatisfied with these assessments, claimant's 
 
            attorney referred her to James E. Crouse, M.D., for an 
 
            independent medical examination pursuant to Iowa Code 
 
            section 85.39.  Dr. Crouse saw claimant on October 22, 1990.  
 
            After reviewing the claimant's medical history and noting 
 
            her complaints, including neck pain, right shoulder pain, 
 
            pain in the right elbow, right wrist pain, loss of strength 
 
            in the right arm and wrist, stiffness and swelling in the 
 
            right wrist and fingers, and intolerance to any pulling and 
 
            cold weather, Dr. Crouse conducted an examination.  On 
 
            examination, Dr. Crouse noted as follows:
 
            
 
                 ...She is able to move around well.  Examination 
 
                 shows soreness in the back of the neck and into 
 
                 the right trapezius muscle area.  No atrophy is 
 
                 noted in this area.  She has good shoulder motion 
 
                 in both shoulders but discomfort with right 
 
                 shoulder motion...She has good motion of her neck 
 
                 but discomfort particularly with flexion which 
 
                 occurs down over the spinous processes of C-7 and 
 
                 T-1.  ...She has full motion of her shoulder, her 
 
                 elbow and her wrist....
 
            
 
            (exhibit 21)
 
            
 
                 X-rays of the cervical spine, wrist and elbow were 
 
            reviewed and were negative.  Dr. Crouse indicated that the 
 
            examination was rather unremarkable except for the 
 
            discomfort and hyper-sensitivity.  He felt that her primary 
 
            disabling problem is her secondary pain involving her entire 
 
            upper extremity including the neck and shoulder.  He agreed 
 
            with a 20 percent permanent impairment rating involving the 
 
            upper extremities, but related it to a 12 percent impairment 
 
            of the body as a whole since the upper extremities included 
 
            the shoulder and neck (ex. 21).
 
            
 
                 On March 13, 1991, Dr. DeBartolo reported that, "I 
 
            believe that Mrs. Kruse's upper extremity problems began as 
 
            a result of her employment at Armour Foods doing repetitive 
 
            hand and wrist activities." (ex. 22).  This activity 
 
            resulted in tendonitis that became localized to her first 
 
            extensor compartment in a condition referred to as de 
 
            Quervain's disease.  As a result of the tendonitis, medical 
 
            and surgical treatment, she has a 20 percent permanent 
 
            partial impairment to her right upper extremity.  It was his 
 
            opinion that she has not sustained any permanent injury to 
 
            her right shoulder or neck (ex. 22).
 
            
 
                 Claimant testified that she was taken off work on May 
 
            4, 1990.  She stated she attempted to return to work in 
 
            October 1990, but was told by personnel that that company 
 
            had no job for her.  In November 1991, as per the union 
 
            contract, she was terminated from Armour Food.  
 
            
 
                                conclusions of law
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 The primary issue to be determined in this case is 
 
            whether claimant's disability is to the arm, a scheduled 
 
            member, or to the body as a whole.  A scheduled member loss 
 
            is compensated pursuant to the schedule set forth in Iowa 
 
            Code section 85.34, which is presumed to include 
 
            compensation for the reduced capacity to labor and earned 
 
            income.  Schell v. Central Engineering Company, 232 Iowa 421 
 
            4 N.W.2d 399 (1942).  An injury to the body as a whole is 
 
            compensated industrially; that is, to the extent to which 
 
            the injury reduces claimant's earning capacity.  Second 
 
            Injury Fund v. Hodgins, 461 N.W.2d 454 (Iowa 1990).
 
            
 
                 An injury to a scheduled member which, because of 
 
            after-effects (or compensatory change), creates impairment 
 
            to the body as a whole entitled claimant to industrial 
 
            disability.  Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961).  Daily v. Pooley Lumber Co., 233 Iowa  
 
            758, 10 N.W.2d 569 (1943).
 
            
 
                 If a claimant contends she has industrial disability 
 
            she has the burden of proving her injury results in an 
 
            ailment extending beyond the scheduled loss.  Kellogg v. 
 
            Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 
 
            (1964).
 
            
 
                 Claimant bears the burden of proof to show that her 
 
            injury extends beyond the scheduled member into the body as 
 
            a whole.  At the hearing and in the medical evidence, 
 
            claimant reported frequent instances where she experienced 
 
            pain in her shoulders and neck.  However, physicians who 
 
            have treated and/or examined claimant gave permanency 
 
            ratings confined to the upper extremity.  Claimant's 
 
            complaints of pain are not substantiated by the clinical and 
 
            laboratory findings in the record and therefore, cannot 
 
            substitute for an impairment.  Waller v. Chamberlain Mfg., 
 
            II Iowa Industrial Commissioner Report 419, 425 (1981).
 
            
 
                 Claimant has failed to carry her burden to show that 
 
            her injury extends to the body as a whole.  The only 
 
            evidence supporting this contention is claimant's own 
 
            testimony and statements made by Dr. Crouse on October 22, 
 
            1990.  Claimant saw Dr. Crouse on one occasion and for the 
 
            purpose of an independent medical examination.  He relied on 
 
            claimant's statements of subjective complaints to support 
 
            his conclusions that her injury extended into the body as a 
 
            whole.  There is substantial evidence in the record that the 
 
            pain described by claimant is the result of functional 
 
            overlay rather than her work injury.  
 
            
 
                 In addition, there is no showing that claimant's right 
 
            elbow, neck and shoulder pain, even if caused by her work 
 
            injury, has resulted in permanent disability.  X-rays taken 
 
            of claimant's right elbow in May 1990 were negative.  Dr. 
 
            DeBartolo emphatically stated that claimant has not 
 
            sustained any permanent injury to her right shoulder or 
 
            neck.  
 
            
 
                 The best evidence in this case is that claimant 
 
            sustained a 20 percent impairment to her right upper 
 
            extremity as a result of a work injury with employer.  Upper 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            extremity is not a scheduled under Iowa Code section 85.34.  
 
            The AMA Guides to the Evaluation of Permanent Impairment, 
 
            however, do speak of upper extremity impairments.  For all 
 
            practical purposes, and particularly for the purpose of this 
 
            decision, the arm is coextensive with the upper extremity.  
 
            Loss of an arm is compensable during 250 weeks under Iowa 
 
            Code section 85.34(2)(m).  Twenty percent of 250 weeks is 50 
 
            weeks.  
 
            
 
                 Defendants have previously paid claimant weekly 
 
            compensation for the periods January 14, 1988 through 
 
            February 3, 1988; July 11, 1988 through October 23, 1988; 
 
            January 2, 1989 through May 24, 1989; June 30, 1989 through 
 
            December 18, 1989; and May 5, 1990 through September 24, 
 
            1990; as well as 20 percent permanent partial disability 
 
            benefits for loss of use of the right upper extremity.  
 
            Claimant is not entitled to any additional workers' 
 
            compensation benefits in file numbers 874897 and 951310.
 
            
 
                 The question that remains is whether claimant is 
 
            entitled to payment for an independent medical examination 
 
            under Iowa Code section 85.39.  
 
            
 
                 This code section provides that if an evaluation of 
 
            permanent disability has been made by a physician retained 
 
            by the employer and the employee believes this evaluation to 
 
            be too low, then the employee is entitled to an examination 
 
            by a physician of the employee's own choice and the 
 
            reasonable and necessary transportation expenses incurred 
 
            for the examination.
 
            
 
                 An application for an independent medical examination 
 
            under Iowa Code section 85.39 need not precede the 
 
            examination if the claimant is satisfied to wait until the 
 
            hearing to be reimbursed provided that this is designated as 
 
            a hearing issue on the hearing assignment order.  Pirozek v. 
 
            Swift Independent Packing, file number 803955 (1986).  Dr. 
 
            DeBartolo indicated a 20 percent impairment rating to the 
 
            right upper extremity on May 9, 1990.  Dr. Coddington and 
 
            Dr. Emerson concurred with this rating on July 2, 1990.  Dr. 
 
            Crouse's evaluation was performed on October 22, 1990, which 
 
            was subsequent to the aforementioned evaluations.  Defendant 
 
            employer does not dispute the reasonableness of the medical 
 
            expenses incurred in the independent medical examination 
 
            conducted by Dr. Crouse.  Accordingly, pursuant to Iowa Code 
 
            section 85.39, defendant employer is liable for payment of 
 
            Dr. Crouse's examination and claimant's reasonable necessary 
 
            transportation expenses incurred for the examination.  
 
            
 
                                      order 
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 Defendant employer shall pay claimant for expenses 
 
            incurred in obtaining an independent medical examination 
 
            pursuant to Iowa Code section 85.39.  
 
            
 
                 Claimant takes nothing further in file numbers 874897 
 
            and 951310.  
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert S. Kinsey, III
 
            Attorney at Law
 
            214 N Adams
 
            PO Box 679
 
            Mason City, IA  50301
 
            
 
            Mr. Marvin Duckworth
 
            Attorney at Law
 
            2700 Grand Ave., STE 111
 
            Des Moines, IA  50312
 
            
 
            
 
                 
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51803.1 52502
 
                                          Filed December 3, 1991
 
                                          Jean M. Ingrassia
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CATHY M. KRUSE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          : File Nos. 874897 & 951310 
 
            ARMOUR FOOD COMPANY,          :
 
                                          :  A R B I T R A T I O N
 
                 Self-Insured,            :
 
                 Employer,                :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE COMPANY,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51803.1
 
            Claimant was found to have a work-related injury diagnosed 
 
            as de Quervain's syndrome.  She underwent tenosynovectomy 
 
            with release of the de Quervain's contracture.  Initially, 
 
            her complaints were confined to her right hand and wrist.  
 
            Subsequently, she alleged numerous aches and pains extending 
 
            from her arm into her shoulder and into her neck.  
 
            Physicians who treated and examined her over a two-year 
 
            period gave her a 20 percent permanent impairment rating to 
 
            the right upper extremity.  Five months later, an 
 
            independent medical examiner stated that based on claimant's 
 
            subjective complaints of pain, her loss of use extended into 
 
            the body as a whole.  The only evidence supporting this 
 
            contention was claimant's own testimony.  This testimony was 
 
            out of proportion to the clinical and laboratory findings in 
 
            the record and none of her treating physicians found that 
 
            her injury extended to the body as a whole.  Claimant 
 
            appeared to have a significant degree of functional overlay.  
 
            It was found that claimant failed to carry her burden to 
 
            show that her injury extended to the body as a whole.
 
            
 
            52502
 
            Claimant was found entitled to the costs, including 
 
            transportation, of an independent medical examination under 
 
            Iowa Code section 85.39.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY J. SIMOENS,             :
 
                                          :       File No. 951312
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            QUAKER OATS COMPANY,          :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Larry J. 
 
            Simoens, claimant, against Quaker Oats Company, employer 
 
            (hereinafter referred to as Quaker), a self-insured defen
 
            dant, for workers' compensation benefits as a result of an 
 
            alleged injury on December 10, 1988.  On October 28, 1991, a 
 
            hearing was held on claimant's petition and the matter was 
 
            considered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Quaker at the time of the alleged injury.
 
            
 
                 2.  Claimant is seeking temporary total disability or 
 
            healing period benefits for three days namely May 9, 1989, 
 
            May 10, 1989 and March 7, 1991.  Defendant agrees that 
 
            claimant was not working during these periods of time.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment;
 
            
 
                  II.  The extent of claimant's entitlement to disabil
 
            ity benefits;
 
            
 
                 III.  The extent of claimant's entitlement to medical 
 
            benefits; and,
 
            
 
                  IV.  The extent, if any, of claimant's entitlement to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            penalty benefits.
 
            
 
                                 findings of fact
 
            
 
                 Having heard the testimony and considered all the evi
 
            dence, the deputy industrial commissioner finds as follows:
 
            
 
                 Claimant has worked for Quaker in various jobs since 
 
            1973 and continues to do so at the present time.  He testi
 
            fied at hearing that he plans on working at Quaker until he 
 
            retires.  At the time of the alleged injury, claimant was 
 
            assigned to the job of car strapper which, in part, required 
 
            claimant to open and close heavy doors on railroad boxcars.  
 
            Claimant's permanent work assignment is that of a warehouse 
 
            attendant which primarily involves driving a forklift truck.  
 
            In this job, he must also place pallets into a palletizer.  
 
            Claimant is occasionally bumped out of this position at 
 
            times when the work at the plant is slow at which time he 
 
            then is assigned to the job of chute attendant which 
 
            requires claimant to stack boxes of materials onto pallets.
 
            
 
                 On or about December 10, 1988, claimant injured his low 
 
            back while attempting to pull shut a railroad car door.  
 
            Claimant said that he experienced the onset of immediate low 
 
            back pain at the belt line level of his back.  Claimant was 
 
            then sent for treatment by Quaker to Mercy Hospital.  
 
            Physicians at the hospital diagnosed low back strain and 
 
            prescribed rest, cold packs and medication to relax 
 
            claimant's back muscles and relieve pain.  Claimant was 
 
            released to return to work following this injury on December 
 
            12, 1988.  Claimant testified that he was injured on a 
 
            Friday and returned to work on the following Monday.  
 
            Claimant said that his back was sore when he returned to 
 
            work but he used a forklift truck to close the railroad cars 
 
            for a period of time.  He stated that the pain lasted for a 
 
            couple of weeks and was "not much of a problem" until he was 
 
            assigned to a chute attendant job.  This job requires repet
 
            itive lifting and stacking of 18 to 24 pound boxes from a 
 
            waist high conveyor to pallets on the floor.  Claimant said 
 
            that after he was assigned to this work he missed a couple 
 
            of days in May 1989 and again in March 1990 as a result of 
 
            the onset of additional symptoms from the job.  Claimant has 
 
            since bid into his current classification of warehouse 
 
            attendant in order to receive more money and obtain easier 
 
            work.  Claimant's current classification pays 40 to 60 cents 
 
            per hour more than the chute attendant job.  Claimant 
 
            states, however, that he is occasionally bumped out of his 
 
            current classification and assigned back to the chute atten
 
            dant job.  At the time of hearing he had been performing the 
 
            chute attendant job for the last three weeks.
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            With reference to past injuries, claimant has three prior 
 
            car accidents between 1963 and 1983 none of which involved 
 
            an injury to his low back.  Two of these injuries involved 
 
            the development of neck problems.  In 1987 claimant suffered 
 
            a work injury to his hands when they were caught in rollers 
 
            at work.  Claimant suffered mild permanent partial 
 
            impairment from these hand injuries but there has been no 
 
            permanent work restrictions imposed as a result of the 
 
            injury.
 
            
 
                 Claimant suffered two prior incidents of low back pain 
 
            according to the medical records of Mercy Care North, a 
 
            family practice clinic.  In March 1988, claimant injured his 
 
            low back after operating a chain saw at home.  The diagnosis 
 
            was back sprain and claimant was off work for approximately 
 
            five days.  Claimant testified that he could not recall this 
 
            incident of back pain.  In May 1989, claimant experienced 
 
            another incident of back pain and sought medical treatment 
 
            but did not report any specific injury to his physicians.
 
            
 
                 Due to the lack of supportive medical opinion, claimant 
 
            failed to show that he suffered permanent partial impairment 
 
            from the injury of December 10, 1988.  Claimant's treating 
 
            physicians for the injury did not render an opinion in this 
 
            matter.  Claimant was evaluated by John R. Walker, M.D., an 
 
            orthopedic surgeon in July 1990.  According to Dr. Walker, 
 
            claimant has a two percent permanent partial impairment as a 
 
            result of his low back condition.  Dr. Walker further opined 
 
            that his findings in the low back region were the result of 
 
            injuries claimant suffered while working at Quaker Oats.  
 
            However, despite an extensive description of claimant's 
 
            medical history in his report, no mention is made by Dr. 
 
            Walker of claimant's prior back problems in March 1988 or in 
 
            May 1989.  At hearing, claimant explained that he did not 
 
            mention any of these problems to Dr. Walker because he did 
 
            not recall them.  It is assumed that claimant is truthful on 
 
            this point.  However, the fact remains that Dr. Walker 
 
            issued his causal connection opinions in this matter based 
 
            upon an incorrect history.  Therefore, his views could not 
 
            be given much weight in this proceeding.
 
            
 
                 On the other hand, claimant was evaluated by another 
 
            orthopedic surgeon, W. J. Robb, M.D., in November 1990.  Dr. 
 
            Robb, according to his reports, was aware of claimant's full 
 
            past history with reference to his back problems.  Dr. Robb 
 
            opines that claimant only suffered a temporary aggravation 
 
            sprain of his back in December 1988.  He states that 
 
            claimant suffers from degenerative disc disease and degener
 
            ative arthritis of the low back which will cause recurrent 
 
            episodes of back pain with repetitive bending and lifting 
 
            activity.  As Dr. Robb has a more complete history and there 
 
            is no evidence to suggest that Dr. Robb's qualifications are 
 
            any less than those of Dr. Walker, greater weight must be 
 
            given to the views of Dr. Robb in this proceeding.
 
            
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Although claimant failed to show a causal connection between 
 
            his current back problems and the work injury of December 
 
            1988 at Quaker, it should be noted that even if claimant had 
 
            established such a causal connection, claimant failed to 
 
            provide any evidence of loss of earning capacity as a result 
 
            of his back condition at the present time.  Claimant 
 
            continues to perform his work at Quaker without loss of pay 
 
            or benefits.  In fact he is at the present time making more 
 
            money than he did at the time of the injury.
 
            
 
                 Furthermore, claimant failed to show that his absence 
 
            from work in May 1989 and in March 1991 was due to the work 
 
            injury of December 10, 1988.  Given the views of Dr. Robb, 
 
            recurrent back problems from claimant's work activity is due 
 
            to claimant's non-work related degenerative disc disease and 
 
            would be expected.  Consequently, each occurrence of pain 
 
            probably constitutes a separate aggravation work injury.  
 
            These incidents of back pain would be unrelated to the 
 
            aggravation of injury that he experienced in December 1988, 
 
            the subject of this litigation.
 
            
 
                 Claimant has shown that the expenses of Dr. Walker are 
 
            causally connected to the work injury.  However, Dr. 
 
            Walker's services were that of an evaluation and not for 
 
            treatment of the back condition.  Dr. Walker did not recom
 
            mend any course of treatment to improve claimant's back con
 
            dition.  Obviously, the report was prepared at the request 
 
            of an attorney for litigation purposes.
 
            
 
                                conclusions of law
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            which arose out of and in the course of employment.  The 
 
            words "out of" refer to the cause or source of the injury.  
 
            The words "in the course of" refer to the time and place and 
 
            circumstances of the injury.  See Cedar Rapids Community 
 
            Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto 
 
            Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An 
 
            employer takes an employee subject to any active or dormant 
 
            health impairments, and a work connected injury which more 
 
            than slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. United States Gypsum Co., 252 
 
            Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
            therein.
 
            
 
                 In the case sub judice, the evidence is almost uncon
 
            troverted that claimant suffered a work injury.  However, 
 
            the fighting issue is whether such a work injury was 
 
            causally connected to compensable disability.
 
            
 
                  II.  The claimant has the burden of proving by a pre
 
            ponderance of the evidence that the work injury is a cause 
 
            of the claimed disability.  A disability may be either tem
 
            porary or permanent.  In the case of a claim for temporary 
 
            disability, the claimant must establish that the work injury 
 
            was a cause of absence from work and lost earnings during a 
 
            period of recovery from the injury.  Generally, a claim of 
 
            permanent disability invokes an initial determination of 
 
            whether the work injury was a cause of permanent physical 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            impairment or permanent limitation in work activity.  
 
            However, in some instances, such as a job transfer caused by 
 
            a work injury, permanent disability benefits can be awarded 
 
            without a showing of a causal connection to a physical 
 
            change of condition.  Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
            288 N.W.2d 181 (Iowa 1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, pos
 
            itive or unequivocal language and the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  The weight to be given to such an opinion is for the 
 
            finder of fact, and that may be affected by the completeness 
 
            of the premise given the expert and other surrounding cir
 
            cumstances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal connec
 
            tion, such testimony may be coupled with nonexpert testimony 
 
            to show causation and be sufficient to sustain an award.  
 
            Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 
 
            911, 915 (1966).  Such evidence does not, however, compel an 
 
            award as a matter of law.  Anderson v. Oscar Mayer & Co., 
 
            217 N.W.2d 531, 536 (Iowa 1974).  To establish compensabil
 
            ity, the injury need only be a significant factor, not be 
 
            the only factor causing the claimed disability.  Blacksmith, 
 
            290 N.W.2d 348, 354.  In the case of a preexisting condi
 
            tion, an employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).
 
            
 
                 In the case sub judice, claimant failed to show a 
 
            causal connection between the work injury and permanent 
 
            impairment or permanent disability.  It was found that 
 
            claimant suffered a temporary aggravation of a preexisting 
 
            condition which resulted in two days of absence from work in 
 
            December 1988.  However, to be compensable under Iowa Code 
 
            section 85.32, a work injury must result in an absence from 
 
            work for more than three days.  Claimant was absent from 
 
            work at other times in 1989 and 1991 as a result of back 
 
            problems but this was due to separate temporary aggravation 
 
            work injuries at the time.  Claimant failed to show that the 
 
            underlying cause for the recurrent symptoms was anything 
 
            other than degenerative disc disease which is unrelated to 
 
            the work injury in this case.
 
            
 
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  However, evaluations from a 
 
            physician for the purposes of litigation are not reim
 
            bursable under this code section.  If claimant desired a 
 
            reimbursement of his expenses for Dr. Walker, he should have 
 
            raised the issue under Iowa Code section 85.39.  This was 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            not done in this case.
 
            
 
                  IV.  Claimant raised an issue of unreasonable denial 
 
            of benefits under the fourth unnumbered paragraph of Iowa 
 
            Code section 86.13.  However, it is the holding in this 
 
            decision that claimant is not entitled to disability bene
 
            fits, therefore, the penalty issue is moot.
 
            
 
                                      order
 
            
 
                 1.  Claimant's petition for workers' compensation bene
 
            fits is denied and this petition is dismissed.
 
            
 
                 2.  Claimant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of December, 1991.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Robert R. Rush
 
            Attorney at Law
 
            526 2nd Ave SE
 
            P O Box 2457
 
            Cedar Rapids  IA  52406
 
            
 
            Mr. James M. Peters
 
            Attorney at Law
 
            1200 MNB Bldg
 
            Cedar Rapids  IA  52401
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1803
 
                                               Filed December 12, 1991
 
                                               LARRY P. WALSHIRE
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY J. SIMOENS,             :
 
                                          :       File No. 951312
 
                 Claimant,                :
 
                                          :    A R B I T R A T I O N
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            QUAKER OATS COMPANY,          :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            
 
                 Claim denied.  Failure to show work injury caused 
 
            compensable disability.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
 
 
 TRACY RENDALL,
 
                                                File No. 951316
 
      Claimant,
 
                                                 A P P E A L
 
 
 
 IBP, 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 
 
 October 29, 1991 is affirmed and is adopted as the final agency 
 
 action in this case.
 
 
 
 Claimant shall pay the costs of the appeal, including the 
 
 preparation of the hearing transcript.
 
 
 
 Signed and filed this 25th day of August, 1992.
 
 
 
 
 
                                        BYRON K. ORTON
 
                                  INDUSTRIAL COMMISSIONER
 
 
 
 Copies To:
 
 
 
 Mr. David D. Drake
 
 Attorney at Law
 
 West Towers Office
 
 1200 35th Street  STE 500
 
 West Des Moines, Iowa  50265
 
 
 
 Ms. Marie L. Welsh
 
 Attorney at Law
 
 P O Box 515  Dept #41
 
 Dakota City, Nebraska  68731
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                  9998
 
                                                  Filed August 25, 1992
 
                                                  BYRON K. ORTON
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                               
 
 TRACY KENDALL,
 
                                                 File No. 951316
 
      Claimant,
 
                                                  A P P E A L
 
 vs.
 
                                                D E C I S I O N
 
 IBP, INC.,
 
 
 
      Employer, 
 
      Self-Insured, 
 
      Defendant.
 
      
 
      
 
 9998
 
 
 
      Summary affirmance of deputy's decision filed.
 
      
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TRACY KENDALL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 951316
 
            IBP, INC.,                    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on September 24, 1991, in 
 
            Des Moines, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged injury 
 
            occurring on September 24, 1989.  The record in the 
 
            proceeding consists of the testimony of claimant, Connie 
 
            Coker, Cheryl Knezevich, and Don Webster; joint exhibits 1, 
 
            pages 1-21 and pages 36-57, joint exhibits 2, 3, 5 through 
 
            9; and claimant's exhibit 1A, pages 22-35.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged September 24, 1989 
 
            injury arose out of and in the course of his employment;
 
            
 
                 2.  Whether claimant's alleged disability is causally 
 
            connected to his alleged September 24, 1989 injury;
 
            
 
                 3.  The nature and extent of claimant's permanent 
 
            disability and entitlement to disability benefits;
 
            
 
                 4.  The rate for any benefits that would be awarded;
 
            
 
                 5.  Claimant's entitlement to 85.27 medical benefits, 
 
            the issue being causal connection, reasonableness and 
 
            necessity; and
 
            
 
                 6.  Whether claimant gave proper notice under Iowa Code 
 
            section 85.23.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 31-year-old high school graduate who is 
 
            currently enrolled in the Des Moines Community College in an 
 
            accounting and business law course.  He hopes to be a high 
 
            tech medical equipment repairer, repairing hospital 
 
            equipment and electric scanner machines, etc.  Claimant has 
 
            no other educational skills and indicated his four weeks of 
 
            military airborne schooling is not useable in a civilian 
 
            job.
 
            
 
                 Claimant was in the service in April 1983 to April 1987 
 
            and March 1988 to April 1989, all totaling six years, three 
 
            months.
 
            
 
                 Claimant described the rigorous military training and 
 
            the nature of his job while in the service.  Claimant 
 
            described his service injuries, namely:  Right knee hurt May 
 
            10, 1988, playing basketball as part of his service 
 
            training.  This prevented claimant from doing his squad 
 
            duties which involved rigorous work; claimant injured his 
 
            back in 1984 and was in Walter Reed Hospital eventually in 
 
            September 1986.  He had no treatment for his back after this 
 
            and no restrictions; claimant hurt his right knee again in 
 
            January 1989 when another soldier hit him from behind 
 
            causing claimant to hit his knee on the concrete.  An 
 
            arthroscopy of the right knee was performed and claimant was 
 
            discharged in April 1989 because of this injury.  Claimant 
 
            was unable to run without a brace support.  Claimant was 
 
            given service compensation for his right knee injury.  
 
            Claimant said he received an honorable discharge which was 
 
            based on his medical.
 
            
 
                 Claimant described his work history prior to beginning 
 
            work     for defendant employer in August 1989.  This work 
 
            mainly involved working at auto parts stores, making 
 
            deliveries, lifting up to 50 pounds and receiving a little 
 
            more than minimum wage.
 
            
 
                 Claimant began working for defendant employer in August 
 
            1989 as a laundry production worker washing uniforms.  After 
 
            one and one-half months, he was promoted in the middle of 
 
            1989 to supervisor of nine people and was paid $18,500 per 
 
            year annual salary beginning with this new position.  Prior 
 
            to this promotion, claimant was making about $6.10 per hour.  
 
            This supervisor job was referred to as a showcase supervisor 
 
            and entailed receiving work orders, scheduling hours and 
 
            time off, determining maintenance work within the plant, 
 
            etc.
 
            
 
                 Claimant said that on September 24, 1989, while doing 
 
            maintenance work and pulling hoses in place, he was going 
 
            down the stairs and his right foot slipped and his right 
 
            knee popped.  He did not fall as he caught himself on the 
 
            rail.  Claimant said he couldn't move his knee.  This date 
 
            (a Sunday) was a nonproduction day at defendant employer's 
 
            plant.  Claimant helped another person, Don Webster, during 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            August and September 1989 because of the extra work that 
 
            needed to be done at IBP.  This extra work was done on 
 
            weekends, when the plant was in a nonproduction status.
 
            
 
                 Claimant related he reported his injury 15 to 20 
 
            minutes after it happened to a Mike Watkins.  He said he 
 
            later told Pam, the nurse, and she said to go to the VA 
 
            Hospital.  Claimant emphasized he could not report his 
 
            injury to the nurse on this September 24, 1989, as the nurse 
 
            was not there on a nonproduction day.  Claimant acknowledged 
 
            this was the same knee he had trouble with in the service 
 
            but this current problem was different and it hurt more.  
 
            Claimant sought medical care at the VA Hospital on September 
 
            26, 1989, and was unable to do his regular duties at IBP.  
 
            Claimant said he began wearing a brace and couldn't do the 
 
            climbing of the ladders and on the rafters.
 
            
 
                 Claimant had his right knee reconstructed November 29, 
 
            1989, and the parties agree claimant was off work through 
 
            October 3, 1990.  Also, there is no disagreement that 
 
            claimant received a salary continuation under defendant 
 
            employer's benefit plan from October 17, 1989 through 
 
            January 17, 1990.  This was a benefit to which salaried 
 
            employees were entitled.
 
            
 
                 Claimant missed no work prior to September 24, 1989.  
 
            He was released to work in February 1990, as a supervisor, 
 
            but said he ended up doing labor-type work and was unable to 
 
            do it.  Claimant was then released on October 3, 1990, by 
 
            the VA doctors.
 
            
 
                 In November 1990, claimant had screws removed from his 
 
            right knee which were placed there during his November 1989 
 
            surgery.  Claimant had follow-up surgery (arthroscopy) on 
 
            June 18, 1991, which was to shape the patella.
 
            
 
                 Claimant said tat he noticed low back pain in February 
 
            1990, which was different than his 1985 mid-back problems 
 
            that occurred when he was in the service.
 
            
 
                 Claimant described his current problems which he has 
 
            had since his September 24, 1989 alleged injury.  Claimant 
 
            contends he cannot stand over one hour, his right knee 
 
            throbs, hard surfaces affect the knee, sitting more than 15 
 
            to 20 minutes causes his knee to hurt, he cannot kneel on 
 
            his right knee, cannot carry over 50 pounds, has problems 
 
            sleeping, and his walking is limited.  He indicated he can 
 
            now walk only two or three miles versus 10 to 20 miles prior 
 
            to his alleged injury.  Claimant indicated the weather also 
 
            affects his knee and he has stopped playing golf and 
 
            basketball, except he did indicate he has golfed the last 
 
            part of 1990 and twice in 1991.  Claimant said he could run 
 
            with a brace on his right leg prior to September 24, 1989, 
 
            but he cannot now.
 
            
 
                 Claimant said he worked at another employer in October 
 
            1990 until January 1991, as a mailer and then as a machine 
 
            mechanic until April 1991, at which time he quit over a 
 
            dispute.  Claimant is now in school through the V.A. 
 
            vocational rehabilitation department and has his full 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            tuition paid and also has received assistance allowance.
 
            
 
                 Claimant acknowledged he received from the armed 
 
            services a 50 percent disability payment as a result of his 
 
            right knee injury in the service due to a 75 percent tear of 
 
            the anterior cruciate ligament of his right knee.  This 
 
            would appear to be a result of his January 1989 military 
 
            injury but the records are confusing.  He originally injured 
 
            his right knee in May 1988 while in the service and this 
 
            January 1989 incident obviously affected claimant's already 
 
            injured right knee (Joint Exhibit 1, page 37).  Claimant 
 
            related the compensation he received as a result of his 
 
            military injury.  He also set out this information in joint 
 
            exhibit 6, page 14, the answer to interrogatory number 16.
 
            
 
                 On cross-examination, claimant was questioned as to 
 
            whether he truthfully disclosed all his medical history.  
 
            Claimant admitted he did not disclose his attempted suicide 
 
            in 1983, which he claims was due to his service-connected 
 
            knee injury and family problems
 
            
 
                 Claimant was extensively questioned as to his work day 
 
            of September 24, 1989 (a Sunday), and his contention that he 
 
            was working with Don Webster.  Claimant admitted that time 
 
            and attendance reports had to be filled out for the days the 
 
            employee worked.  Claimant was shown these records which 
 
            indicted on September 24, 1989, that Webster was not working 
 
            that day.  The corporate personnel earnings for the week of 
 
            Monday through Sunday, September 24, 1989, showed Webster 
 
            was not at work that day.
 
            
 
                 Claimant disagreed with a VA record that indicates 
 
            claimant's knee had been giving out once a month prior to 
 
            September 24, 1989, and that he told the VA it was not work 
 
            connected (Jt. Ex. 1, p. 3).  Claimant also denied he told 
 
            the plant manager not to worry about his knee as it was not 
 
            work connected.
 
            
 
                 Claimant said he did not discuss with Lonnie Jepsen 
 
            whether his September 24, 1989 alleged injury was work 
 
            related or not.  Claimant did not know if he reported his 
 
            injury to Cheryl Foutch, the workers' compensation 
 
            coordinator.  He emphasized he told his supervisor and 
 
            Lonnie Jepsen.
 
            
 
                 Claimant acknowledged he wore a right leg brace prior 
 
            to working for IBP but insists it was not like his current 
 
            brace.
 
            
 
                 Claimant indicated that since he was on a service-
 
            connected right knee disability, if his leg gets worse it is 
 
            re-evaluated and the VA Administration does not care what 
 
            the cause of the worsening condition is as long as it is not 
 
            intentionally caused by the claimant.  Claimant indicated 
 
            the VA Administration pays the additional amount and the 
 
            rating is not affected by the nature of the additional cause 
 
            of the right knee being affected.  The disability increases 
 
            regardless of the cause.  Claimant indicated he received 
 
            more military benefits from the VA in June 1991, after his 
 
            surgery.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Connie Coker, a nurse at IBP, testified it is her 
 
            responsibility to take care of the physical therapy records 
 
            and documents and the employees' visits to the medical 
 
            dispensary area and to process the workers' reports about an 
 
            occupational injury.  She knows claimant and his job as a 
 
            supervisor.  She related claimant never reported his own 
 
            injury but had reported as a responsibility of a supervisor, 
 
            other employees' injuries.  She recalled on September 27, 
 
            1989, claimant spoke to her and said he had a service-
 
            connected injury and did not report that he injured himself 
 
            on the job (Jt. Ex. 1, p. 55).  She acknowledged she sat 
 
            through the entire hearing and heard claimant say he told 
 
            Mike Watkins of his injury.  Ms. Coker said Watkins never 
 
            reported any injury of claimant to her.  She said Watkins is 
 
            a conscientious person and has reported injuries of 
 
            employees in the past.  She indicated she has no evidence of 
 
            claimant's injury from Watkins.
 
            
 
                 Ms. Coker recalled claimant's returning from VA 
 
            Hospital with a doctor's note and claimant never said it was 
 
            work related.  In fact, she emphasized that she asked 
 
            claimant and he denied any work injury.  It is obvious this 
 
            note from the doctor was not in the evidence and no one knew 
 
            where it was, but Ms. Coker emphasized there was a note and 
 
            it existed somewhere at one time.  She said she met with 
 
            claimant before he went to the VA Hospital and she is not 
 
            the one who suggested claimant go there.  Claimant said he 
 
            was going to go there.  She emphasized that if the claimant 
 
            said he had received a work injury, she would have noted it 
 
            on the records.
 
            
 
                 Cheryl Knezevich testified she is currently director of 
 
            nursing at a care center in Stratford, Iowa.  She worked 
 
            full-time at IBP June 1989 through February 1990, and then 
 
            part-time through 1990.  At IBP, she was staff nurse and 
 
            gave physicals, hearing tests and treated injuries.  She 
 
            knows claimant and emphasized claimant never told her of his 
 
            work injury.  She acknowledged her initials on October 13, 
 
            1989, that claimant was wearing a knee brace-immobilizer, 
 
            but claimant never told her it was because of a work injury.  
 
            She acknowledged she never noticed any pre-September 24, 
 
            1989 knee problem with claimant.
 
            
 
                 Don Webster testified he began working for defendant 
 
            employer in August 1989, and knows claimant by working with 
 
            him in certain jobs with defendant employer.  He also worked 
 
            with claimant's brother.  He testified he worked with 
 
            claimant on the extra hours crew on Saturday and Sunday and 
 
            knew claimant wanted extra hours.  Defendant employer just 
 
            opened up the plant and needed extra workers to get certain 
 
            jobs done when the plant was not in its weekly operation.  
 
            Claimant was his supervisor on this extra hour crew.  They 
 
            were referred to as showcase employees.  Webster said he was 
 
            with claimant when he was hurt slipping on the steps while 
 
            walking through the hose area.  He said after the slip, 
 
            claimant could hardly walk.  After this incident, he never 
 
            directly worked with claimant again but two days later 
 
            noticed claimant on crutches.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Webster could not recall any date but in relation to 
 
            the time the plant opened for business, he placed the 
 
            claimant's slip at work around the latter part of September 
 
            1989.
 
            
 
                 Webster was shown a work record indicating he wasn't 
 
            working on September 24, 1989, but he said he was paid.  He 
 
            does not have the date written down.  He couldn't recall who 
 
            else was present that day working and also in the 
 
            supervisory position.
 
            
 
                 Cheryl Foutch testified by way of deposition (Jt. Ex. 
 
            9(1)), on September 6, 1991.  She worked for defendant 
 
            employer from April 1989 to April 1991, as to being the 
 
            workers' compensation coordinator.  She dealt with work 
 
            injuries of the employees.  She knows claimant through the 
 
            work place of IBP.  She said claimant was a salaried 
 
            supervisor.  She indicated claimant never told her of a work 
 
            injury.  She said claimant brought a note to the employer 
 
            prior to his beginning work indicating a restriction of no 
 
            jumping at any time (Jt. Ex. 9(1), p. 6).  Claimant said 
 
            this restriction was service connected.
 
            
 
                 Ms. Foutch said she first knew of claimant's injury 
 
            only when she was served with a petition.  She explained 
 
            claimant never related to her that he had incurred a work 
 
            injury.  She acknowledged she never had any real contact 
 
            with claimant after September 24, 1989, except she had to 
 
            run him off the premises several times after he had come 
 
            back to the premises.  She said any information claimant 
 
            gave her that his knee was injured was that it was service 
 
            connected prior to September 24, 1989.
 
            
 
                 Lonnie Jepsen testified by way of deposition on 
 
            September 10, 1991 (Jt. Ex. 9(2)) that he has been employed 
 
            with IBP since October 1984 involving IBP's Madison, Perry 
 
            and Storm Lake plants.  He was at the Perry plant on May 1, 
 
            1989 through October 15, 1989.  He was personnel director 
 
            most of the time of his employment with IBP.  He related his 
 
            duties.  He was acquainted with claimant.  He was familiar 
 
            with claimant's promotion from an hourly laundry worker to a 
 
            showcase supervisor, which is a salaried management 
 
            position.
 
            
 
                 Jepsen related the 90 day leave of absence with full 
 
            pay given to management personnel.  Claimant had to request 
 
            the leave which he did as he planned to undergo knee surgery 
 
            (Jt. Ex. 9(2), p. 9).  Jepsen understood claimant was having 
 
            surgery for a lingering military injury.  Jepsen was never 
 
            told by anyone that this injury of claimant was the result 
 
            of a knee injury at work.  He related a conversation with 
 
            claimant in January 1990, at which time Jepsen also had an 
 
            injury.  He emphasized to the claimant at that time that if 
 
            claimant had a work injury, he must let him know as he would 
 
            not be entitled to sick leave if he had a workers' 
 
            compensation injury.  Jepsen said claimant said then he 
 
            didn't think his knee injury was work related and he was 
 
            going to seek payment of his medical benefits through G.I. 
 
            benefits.  Jepsen said claimant never indicated he had ever 
 
            slipped at work but in the January 1990 conversation with 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            claimant, he indicated he had fallen.  This was when he told 
 
            claimant that if the injury was work related, he must know.  
 
            Claimant indicated then that it was not work related (Jt. 
 
            Ex. 9(2), p. 16).  Jepsen indicated he did not notice any 
 
            physical problems claimant had prior to September 24, 1989, 
 
            and that claimant appeared to be able to do his job.
 
            
 
                 Joint exhibit 1, page 3, dated September 26, 1989, 
 
            indicates claimant had a knee injury in 1988 and had 
 
            arthroscopy on August of 1988 and January of 1989.  
 
            Claimant's right knee goes out of place once a month.  The 
 
            record indicates claimant's knee gave way two days ago.  
 
            Although the record (handwriting) isn't very clear, it 
 
            appears claimant had a 75 percent deficiency in his knee 
 
            prior to September 24, 1989 (Jt. Ex. 1, p. 4).
 
            
 
                 Joint exhibit 1, page 11, refers to claimant's May 1988 
 
            knee injury; his accident in January 1989, when he fell 
 
            again; and his November 1989 Iowa City surgery, for repair 
 
            and reconstruction of the ischial ligament.  The undersigned 
 
            notes nothing about a September 1989 injury.  This seems to 
 
            be in accordance with claimant's alleged comments to 
 
            defendant employer's personnel that he had surgery because 
 
            of the military injury and not because of any work-related 
 
            injury.  The undersigned notes that in looking at the VA 
 
            Administration records, it was not until December 18, 1990, 
 
            for the first time, that claimant referred to a work injury 
 
            (Jt. Ex. 9(1), p. 17).  Claimant filed his petition on 
 
            August 28, 1990.
 
            
 
                 Joint exhibit 1, pages 45 and 46, the Iowa Methodist 
 
            Low Back Institute notes, do not reflect any work injury 
 
            contention in claimant's history.  It refers to a low back 
 
            pain beginning after his November 8, 1989 right knee 
 
            surgery.  Joint exhibit 5, page 11, shows that as of 
 
            September 6, 1989, claimant was a salaried employee with a 
 
            salary of $18,500 per year, or $355.77 per week.  Prior to 
 
            this date it appears to indicate claimant was paid $6.10 per 
 
            hour.  Although the records are not that clear, it appears 
 
            claimant began working at this hourly rate at the time he 
 
            was hired, which also appears to be on or around August 3, 
 
            1989.  There was approximately five weeks claimant got paid 
 
            at the $6.10 per hour, which amounted to $240 gross per week 
 
            based on a 40 hour week and there was two weeks claimant was 
 
            paid at the $355.77 gross salary wage ($18,500 divided by 52 
 
            weeks).
 
            
 
                 Claimant alleges he incurred an injury that arose out 
 
            of and in the course of his employment.  There is a question 
 
            as to whether claimant was even working on September 24, 
 
            1889, and more particularly, as to whether one or more of 
 
            his fellow workers were also at work that day.  Taking 
 
            everything as a whole, the undersigned believes claimant was 
 
            working on a Sunday and that Sunday was September 24, 1989.  
 
            As to whether claimant incurred an injury that arose out of 
 
            and in the course of his employment, the undersigned 
 
            believes that there was an incident at work on that day in 
 
            which claimant's leg went out and that he happened to be at 
 
            work at that time.  The undersigned also believes that 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            claimant's preexisting knee condition resulting from a 
 
            military injury was such that it made claimant's knee 
 
            susceptible to going out and that this is, in fact, what 
 
            happened.  It appears from the record that claimant had been 
 
            having knee problems and that his leg went out approximately 
 
            once a month.  The undersigned does not believe that the 
 
            work itself had anything to do with the knee going out other 
 
            than the fact that claimant was walking on stairs.  The 
 
            undersigned does not find that an injury actually occurred 
 
            but that because of claimant's military preexisting knee 
 
            injuries claimant's knee was in such a condition that it was 
 
            susceptible of going out at any time and when it would go 
 
            out would not be predictable.  The undersigned finds that 
 
            there is no material or substantial work aggravation of his 
 
            preexisting military injury.  The mere fact that claimant's 
 
            knee went out at his place of employment does not mean that 
 
            he incurred an injury that arose out of and in the course of 
 
            his employment.  The undersigned finds that this injury 
 
            actually resulted from claimant's preexisting knee problems 
 
            that were service connected and that it was that injury, in 
 
            fact, which substantially and materially caused claimant to 
 
            incur a worsening of his knee condition.  Claimant did not 
 
            incur a work injury that arose out of and in the course of 
 
            his employment.
 
            
 
                 It appears claimant desires to have his cake and eat it 
 
            both in that he does not give a history until December 1990 
 
            as to incurring a work injury.  He goes to the VA 
 
            Administration for his military injury and receives 
 
            substantial monetary benefits all based on the fact that he 
 
            had a military injury which required additional surgery and 
 
            became worse over a period of time.  Key personnel with 
 
            defendant employer knew nothing of claimant's claim of a 
 
            work injury until claimant filed his workers' compensation 
 
            petition in August 1990.  It appears claimant is trying to 
 
            collect from two sources for the same injury, and taking two 
 
            different positions depending on the source from which he is 
 
            attempting to collect.
 
            
 
                 The resolution of this issue actually disposes of this 
 
            case but the undersigned will touch upon some additional 
 
            issues.
 
            
 
                 Claimant has failed to sustain his burden to show that 
 
            his claimed disability is causally connected to any work 
 
            injury.  The greater weight of evidence supports the fact 
 
            that claimant incurred a military service connected injury 
 
            and that this injury has gotten worse, requiring additional 
 
            surgeries, but that claimant had a knee condition that would 
 
            cause the knee to give out.  There is no medical testimony 
 
            that causally connects claimant's condition to a work-
 
            related injury on September 24, 1989.
 
            
 
                 As to notice, the undersigned finds that defendant had 
 
            notice of a medical complaint even though it would appear 
 
            that any notice they had was as to a service connected 
 
            preexisting injury.  The undersigned does not feel that an 
 
            employee must know the particulars and the legal and medical 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            status of an injury in order to have the employer's notice 
 
            to be in compliance with 85.23, Iowa Code.  Evidence shows 
 
            defendant employer did know of medical problems with 
 
            claimant on or around September 27, 1989.
 
            
 
                 As to the issue of rate, in light of this decision, the 
 
            undersigned will not go into any detail other than to 
 
            indicate that claimant was a salaried employee on the date 
 
            of his injury and normally would come under section 
 
            85.36(5), except that since claimant had been employed less 
 
            than 13 calendar weeks (approximately seven full weeks)  
 
            immediately preceding the injury, any rate would be based on 
 
            85.36(7).  Any rate would be based on taking the respective 
 
            weeks in which claimant was getting an hourly pay and the 
 
            weeks claimant was getting an annual weekly salary and 
 
            adding those weeks together and dividing them by the number 
 
            of weeks involved to reach a rate.  The undersigned finds 
 
            that 85.36(6) alone would not be the basis for figuring any 
 
            rate as contended by the defendants.
 
            
 
                 Claimant is not entitled to any 85.27 medical benefits 
 
            in light of the fact that the undersigned has found that 
 
            claimant did not incur an injury that arose out of and in 
 
            the course of his employment.  If, in fact, there had been 
 
            that finding and causal connection found, then claimant 
 
            would have been entitled to 85.27 medical benefits based on 
 
            the premise that defendant had denied liability and 
 
            therefore claimant was entitled to seek medical benefits.
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant received an injury on 
 
            September 24, 1989 which arose out of and in the course of 
 
            his employment. McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). 
 
            
 
                 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 (1955).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            24, 1989 is causally related to the disability on which he 
 
            now bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 The Iowa Supreme Court cites, apparently with approval, 
 
            the C.J.S. statement that the aggravation should be material 
 
            if it is to be compensable.  Yeager v. Firestone Tire & 
 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
 
            Workmen's Compensation sec. 555(17)a.
 
            
 
                 Iowa Code section 85.36(7), provides:
 
            
 
                    In the case of an employee who has been in the 
 
                 employee of the employer less than thirteen 
 
                 calendar weeks immediately preceding the injury, 
 
                 the employee's weekly earnings shall be computed 
 
                 under subsection 6, taking the earnings, not 
 
                 including overtime or premium pay, for such 
 
                 purpose to be the amount the employee would have 
 
                 earned had the employee been so employed by the 
 
                 employer the full thirteen calendar weeks immedi
 
                 ately preceding the injury and had worked, when 
 
                 work was available to other employees in a similar 
 
                 occupation.
 
            
 
                 It is further found that:
 
            
 
                 Claimant did not incur an injury that arose out of and 
 
            in the course of his employment on September 24, 1989.
 
            
 
                 Claimant did not show that his disability was causally 
 
            connected to an injury that arose out of and in the course 
 
            of his employment.
 
            
 
                 Claimant had a preexisting knee condition that was an 
 
            active condition at the time of claimant's alleged injury on 
 
            September 24, 1989, and that this prior military-connected 
 
            injury was the material and substantial cause of claimant 
 
            receiving a worsening of his knee condition on or around 
 
            September 24, 1989, resulting in additional surgeries.
 
            
 
                 Any compensation that would have been payable had 
 
            liability been found would have been payable under the 
 
            provisions of Iowa Code 85.36(7).  Claimant is not entitled 
 
            to have his medical bills paid under the provisions of 85.27 
 
            because of the prior findings herein.  If it had not been 
 
            for claimant failing to prove that he incurred an injury 
 
            that arose out of and in the course of his employment and 
 
            that there was causal connection between his alleged 
 
            disability and said injury, then said medical benefits would 
 
            have been payable by defendant because defendant had denied 
 
            liability.
 
            
 
                 Claimant gave the employer sufficient notice of an 
 
            alleged injury even though said matter of notice would 
 
            indicate that any injury that may have occurred was a 
 
            nonwork injury.  Defendant at least had knowledge of a 
 
            circumstance allegedly occurring so as to sufficiently 
 
            comply with 85.23 of the Iowa Code.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant takes nothing from these proceedings.
 
            
 
                 That each of the parties shall pay their own costs of 
 
            this action, pursuant to rule 343 IAC 45.33.
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr David D Drake
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th St  Ste 500
 
            West Des Moines IA 50265
 
            
 
            Ms Marie Welsh
 
            Attorney at Law
 
            Dept #42
 
            P O Box 515
 
            Dakota City NE 68731
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1100; 5-1108; 2800
 
                      Filed October 29, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TRACY KENDALL,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 951316
 
            IBP, INC.,                    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1108
 
            Found claimant did not incur an injury that arose out of and 
 
            in the course of his employment and that there was no causal 
 
            connection of his alleged disability and his alleged work 
 
            injury.
 
            
 
            2800
 
            Found claimant did give sufficient notice of an incident at 
 
            work which was concluded to be a nonwork injury.  Claimant's 
 
            incident at work was substantially and materially caused by 
 
            a military service-connected injury which was causing 
 
            claimant's right knee to give out monthly prior to his 
 
            alleged work injury in which his knee gave out.