BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LINDA HOLSEID, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.      
 
                                                  File No. 954435
 
            FIRESTONE TIRE & RUBBER CO.,  
 
                                                   A P P E A L
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            CIGNA,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                           STATEMENT OF THE CASE
 
            
 
                 Defendants' appeal from an arbitration decision 
 
            awarding claimant 40 percent permanent partial disability 
 
            benefits.  
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing and of joint exhibits 1 through 24.  
 
            Both parties filed briefs on appeal.
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the issues on appeal as:
 
            
 
                 1.  Whether the deputy industrial commissioner erred in 
 
            finding that claimant sustained a personal injury arising 
 
            out of and in the course of her employment on March 27, 
 
            1989;
 
            
 
                 2.  Whether the deputy industrial commissioner erred in 
 
            finding that as result of that injury claimant had sustained 
 
            a bilateral thoracic outlet syndrome;
 
            
 
                 3.  Whether the deputy industrial commissioner erred in 
 
            permitting an amendment to the application for arbitration 
 
            filed at the hearing without prior notice to counsel for the 
 
            defendants, which, in effect, allowed the claimant to plead 
 
            cumulative injury;
 
            
 
                 4.  Whether the deputy industrial commissioner erred in 
 
            finding that the claimant sustained an industrial disability 
 
            of 40 percent of the body as a whole together with 
 
            intermittent healing [period] and medical expense.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The arbitration decision adequately and accurately 
 
            reflects the pertinent findings.  It will not be totally 
 
            reiterated herein.  
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 James S. Blessman, M.D., testified by way of his 
 
            deposition taken March 3, 1992.  Dr. Blessman is board 
 
            certified in family practice and chronic pain management.  
 
            He practices primarily in chronic pain management and 
 
            occupational medicine.
 
            
 
                 The following colloquy took place at Dr. Blessman's 
 
            deposition:
 
            
 
                 Q.  Can a condition or the condition you've 
 
                 described as thoracic outlet syndrome develop 
 
                 without trauma or repetitive use of the arms and 
 
                 shoulders?
 
            
 
                 A.  Yes, it can.
 
            
 
                 Q.  And can you tell me how that can develop?
 
            
 
                 A.  The condition again is a problem where there's 
 
                 not enough space for some very fragile tissues, 
 
                 nerves, and arteries and veins.  And there are a 
 
                 number of things that can cause the problem of 
 
                 there not being enough space.
 
            
 
                 One of the problems in repetitive use or when it 
 
                 would be caused by repetitive use is when the 
 
                 muscles enlarge and that encroaches upon the space 
 
                 and causes some problems.  Other patients may just 
 
                 have a particular shape to their body.  We're all 
 
                 a little bit different, and some patients are just 
 
                 born with a smaller space.  A few people actually 
 
                 have an extra rib that very definitely compresses 
 
                 this area or very definitely could compress this 
 
                 area.
 
            
 
                 People who gain weight, fat tissue, or maybe just 
 
                 fluid weight can take up extra space in this area 
 
                 and cause development of the symptoms.  And many, 
 
                 many times it just occurs, and we really have no 
 
                 definite idea where it came from.  It just happens 
 
                 to be there.  It quite frequently is bilateral, 
 
                 comes on on both sides, because of, again, the way 
 
                 a patient is shaped anatomically.
 
            
 
                 
 
            (Blessman Deposition, page 10, line 9 - page 11, line 12)
 
            
 
                 The following dialogue with the doctor ensued later:
 
            
 
                 Q.  Is it more common for a thoracic outlet 
 
                 syndrome to occur in a male or a female, Doctor?
 
            
 
                 A.  I believe it's more common in females, at 
 
                 least that has been my experience.
 
            
 
                 Q.  Do you have any opinion as to why that is the 
 
                 case?
 
            
 
                 A.  Yes, I do.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Q.  What is that opinion?
 
            
 
                 A.  Females tend to be more prone to collect fluid 
 
                 and have a higher content of fatty tissue which 
 
                 can occupy the space and make us have a high risk 
 
                 of compression.
 
            
 
                 
 
            (Blessman Deposition, page 21, line 25 - page 22, line 11)
 
            
 
                 Dr. Blessman opined that bead building was not likely 
 
            to have caused claimant's diagnosed thoracic outlet syndrome 
 
            in that claimant had thoracic outlet syndrome bilaterally 
 
            and bead building involved different activities for each 
 
            hand.  Additionally, Dr. Blessman, who has actually observed 
 
            bead building, indicated that the job is done with the hands 
 
            at chest level and not at or above shoulder level and does 
 
            not entail heavy lifting likely to produce neck or shoulder 
 
            problems.  Dr. Blessman further opined that claimant's work 
 
            did not aggravate any predisposition to thoracic outlet 
 
            syndrome given that claimant's job activities did not 
 
            involve significant overhead work.  The doctor stated that 
 
            claimant's bilateral development of thoracic outlet syndrome 
 
            further indicates that her syndrome was not related to her 
 
            work activities since claimant did not do the same job when 
 
            she developed her right thoracic outlet syndrome as she did 
 
            when her left thoracic outlet symptoms developed.  
 
            
 
                 Dr. Blessman opined that claimant had sustained a soft 
 
            tissue injury while bead building which injury consisted of 
 
            complaints of wrist pain diagnosed as tendonitis.  Dr. 
 
            Blessman stated that bead building requires fine work albeit 
 
            with the hands relatively ergonomically placed.  He opined 
 
            that the fine grasping involved in bead building had caused 
 
            claimant's wrist symptoms and stated that he was uncertain 
 
            as to the cause of claimant's neck and shoulder symptoms.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 We first consider the question of whether the deputy 
 
            erred in permitting an amendment to the application for 
 
            arbitration to be filed at the hearing without prior notice 
 
            to counsel for the defendants, which, in effect, allowed the 
 
            claimant to plead cumulative injury.  
 
            
 
                 Due process, in agency adjudications, requires that a 
 
            party be informed of the issue involved in order to prevent 
 
            surprise at hearing and allow the party reasonable 
 
            opportunity to prepare relative to the issue.  The test is 
 
            one of fundamental fairness, not whether the notice meets 
 
            technical rules of common law pleading.  Opposing parties 
 
            must be sufficiently appraised of the possibility that an 
 
            issue will arise that they can adequately prepare regarding 
 
            that issue in order to justify its inclusion at hearing 
 
            where another party has not formally plead it.  See Oscar 
 
            Mayer Foods Corp. v. Tasler, 483 N.W.2d 824 (Iowa 1992).  
 
            
 
                 Defendants argue that the deputy's permitting the 
 
            amendment to include claimant's last day at work as a time 
 
            of disablement prejudiced defendants by, in effect, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            permitting the case to be postured as a cumulative trauma 
 
            case with insufficient notice of that issue to defendants.  
 
            Defendants' argument is not well taken.  Claimant's petition 
 
            filed September 26, 1990 does reflect, in paragraph 4, an 
 
            injury date of March 24, 1989, claimant's first date at work 
 
            at Firestone.  Then, in paragraph 10 of the petition, in 
 
            answer to the question "How did the injury occur?"  Claimant 
 
            states:  "Repeated pulling on large rubber bands with her 
 
            right hand."  The use of the word "repeated", should have 
 
            given defendants reason to consider that claimant was 
 
            alleging a repetitive or cumulative trauma injury.  
 
            Additionally, discovery by way of the answers to 
 
            interrogatories defendants posed and by way of medical 
 
            records was sufficient to give defendants further notice 
 
            that claimant was alleging repetitive or cumulative trauma 
 
            injury.  The deputy's permitting the amendment at time of 
 
            hearing cannot fairly be said to have caused defendants 
 
            sufficient surprise as to constitute reversible error.
 
            
 
                 We consider together the questions of whether the 
 
            deputy erred in finding that claimant sustained a personal 
 
            injury arising out of and in the course of her employment on 
 
            March 27, 1989 and of whether the deputy erred in finding 
 
            that, as a result of that injury, claimant sustained 
 
            bilateral thoracic outlet syndrome.  
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries have a traumatic onset, there is no 
 
            requirement for a special incident or an unusual occurrence.  
 
            Injuries which result from cumulative trauma are 
 
            compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
 
            368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 
 
            38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries, 
 
            Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An occupational 
 
            disease covered by chapter 85A is specifically excluded from 
 
            the definition of personal injury.  Iowa Code section 
 
            85.61(5); Iowa Code section 85A.8.
 
            
 
                 A cumulative injury may be found and a cumulative 
 
            injury date may be established even though the claimant has 
 
            relied on a traumatic injury theory and a traumatic injury 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            date in claimant's pleadings.  Johnson v. George A. Hormel & 
 
            Company, Appeal Decision, June 21, 1988; McCoy v. Donaldson 
 
            Company, Inc., Appeal Decision, April 28, 1989.  The 
 
            standard for determining whether the defendant has had 
 
            adequate notice of the possibility that the cumulative 
 
            injury doctrine might be relied upon to justify an award of 
 
            benefits is one of fundamental fairness not whether notice 
 
            meets technical rules of common law pleading.  Oscar Mayer 
 
            Foods Corp. v. Tasler, 483 N.W.2d 824 (Iowa 1992).  
 
            
 
                 The appropriate date of injury for purposes of 
 
            computing workers' compensation benefits is the date at 
 
            which disability manifested itself.  Disability is manifest 
 
            on that date when both the fact of injury and the causal 
 
            relationship of the injury to claimant's employment are 
 
            plainly apparent to a reasonable person.  Tasler at 829. 
 
            
 
                 Claimant's ability to identify specific work incidents, 
 
            with or without the need for medical care or need for time 
 
            off work, does not of itself obviate a claim of gradual or 
 
            cumulative injury.  See Tasler, 483 N.W.2d 824; McKeever 
 
            Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Dr. Blessman's opinion that claimant's work did not 
 
            produce her neck, shoulder and reputed thoracic outlet 
 
            syndrome is accepted over the contrary opinions of other 
 
            physicians.  Dr. Blessman is the only opining physician who 
 
            actually viewed the jobs claimant performed at Firestone.  
 
            Dr. Blessman is the only occupational medicine practitioner 
 
            rendering an opinion as to the nature and the cause or 
 
            source of claimant's injury.  
 
            
 
                 Furthermore, that claimant's reputed thoracic outlet 
 
            syndrome developed while claimant was performing light duty 
 
            work is consistent with  Dr. Blessman's opinion that 
 
            claimant's syndrome and her neck and shoulder symptoms 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            relate to claimant's anatomical structure and not to the 
 
            work she performed at Firestone.  The mere fact that 
 
            claimant's bilateral conditions became symptomatic 
 
            contemporaneously with her work at Firestone is 
 
            insufficient, of itself, to indicate that the work at 
 
            Firestone was the cause or source of claimant's condition.  
 
            The circumstances of the work environment must play some 
 
            role in the development of the injury for claimant to 
 
            establish an injury arising out of and in the course of her 
 
            employment.  Claimant has not established that the 
 
            circumstances of her work at Firestone either produced or 
 
            aggravated her neck or shoulder symptoms, generally 
 
            diagnosed as bilateral thoracic outlet syndrome.  
 
            
 
                 We reach the question of whether the deputy erred in 
 
            finding that claimant sustained an industrial disability of 
 
            40 percent of the body as a whole together with intermittent 
 
            healing period and medical expense.  
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 A wrist injury is an injury to the hand, not the upper 
 
            extremity.  The hand extends to the distal end of the radius 
 
            and ulna, including the carpus or wrist.  Elam v. Midland 
 
            Mfg., II Iowa Industrial Commissioner Report 141 (App. 
 
            1981).
 
            
 
                 The only injury claimant has established as arising out 
 
            of and in the course of her employment with Firestone is 
 
            tendonitis.   While Dr. Blessman has causally related that 
 
            condition to the work at Firestone, claimant has made no 
 
            showing that that scheduled member injury has resulted in 
 
            any permanent impairment which would entitle her to 
 
            permanent partial disability benefits for loss of use of her 
 
            hand.  Claimant's permanent partial impairment rating and 
 
            claimant's restrictions relate to the residual of her 
 
            bilateral thoracic outlet syndromes and not to her wrist 
 
            tendonitis.  Hence, those rating and those restrictions do 
 
            not establish any permanency on account of claimant's 
 
            work-related wrist tendontitis. 
 
            
 
                 Additionally, the record does not demonstrate that 
 
            claimant actually lost work on account of the tendonitis 
 
            such that claimant would be entitled to any period of 
 
            temporary total disability benefits.  Claimant's periods of 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            time off work relate to claimant's thoracic outlet syndrome 
 
            and surgeries and not to the wrist tendonitis.  
 
            Additionally, while defendants are liable for medical costs 
 
            related to a work-related condition under section 85.27, 
 
            claimant's medical costs, as shown in joint exhibits 23 and 
 
            24, relate to care and treatment, including work hardening, 
 
            given as result of claimant's need for thoracic outlet 
 
            surgery and not as a result of claimant's wrist tendonitis.  
 
            Defendants are, therefore, not liable for those charges. 
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed in 
 
            part and reversed in part.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant take nothing from this proceeding.  
 
            
 
                 Claimant pay costs of this appeal, including cost of 
 
            transcription of the arbitration hearing.
 
            
 
                 Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                                 BYRON K. ORTON
 
                                             INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Jeffrey G. Flagg
 
            Attorney at Law
 
            2716 Grand Avenue
 
            Des Moines, IA  50312
 
            
 
            
 
            Mr. Marvin E. Duckworth
 
            Attorney at Law
 
            Terrace Center, Ste. 111
 
            2700 Grand Avenue
 
            Des Moines, IA  50312
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                               1108.50; 1803.1
 
                                               Filed May 26, 1993
 
                                               Byron K. Orton
 
                   
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         LINDA HOLSEID, 
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                               File No. 954435
 
         FIRESTONE TIRE & RUBBER CO.,  
 
                                                 A P P E A L
 
              Employer, 
 
                                               D E C I S I O N
 
         and       
 
                   
 
         CIGNA,    
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         
 
         1108.50; 1803.1
 
         
 
              Deputy affirmed in part and reversed in part.  Claimant did 
 
         establish an injury arising out of and in the course of her 
 
         employment by way of wrist tendonitis.  Claimant did not 
 
         establish any entitlement to temporary total disability, healing 
 
         period, or permanent partial disability benefits relative to that 
 
         injury, however.  The record did not show that claimant was ever 
 
         off work on account of that injury or that that injury had had 
 
         any permanent residuals by way of permanent impairment or by way 
 
         of restrictions.  
 
         
 
              Claimant did not establish that claimant's bilateral neck 
 
         and shoulder complaints, generally diagnosed as bilateral 
 
         thoracic outlet syndrome, arose out of and in the course of 
 
         claimant's employment.  Occupational medicine specialist, who was 
 
         familiar with and actually observed claimant's job duties, had 
 
         opined that it was not likely that claimant's work duties either 
 
         caused or aggravated claimant's thoracic outlet conditions.  
 
         Claimant's job duties did not involve heavy lifting or lifting at 
 
         or above shoulder level.  Claimant's condition developed 
 
         bilaterally, albeit consecutively, even though claimant did not 
 
         perform the same type of duties with her right and left upper 
 
         extremities and even though claimant had been placed on light 
 
         duty both prior to her first thoracic outlet surgery and 
 
         subsequent to her return to work after that surgery but prior to 
 
         her undergoing left thoracic outlet surgery.  
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LINDA HOLSEID,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 954435
 
            FIRESTONE TIRE & RUBBER       :
 
            COMPANY,                      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Linda 
 
            Holseid, claimant, against Firestone Tire and Rubber 
 
            Company, employer, and CIGNA, insurance carrier, to recover 
 
            benefits under the Iowa Workers' Compensation Act as a 
 
            result of an injury sustained on March 27, 1989.  This 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner on April 7, 1991 in Des Moines, 
 
            Iowa.  The record was considered fully submitted at the 
 
            close of the hearing.  The claimant was present and 
 
            testified.  Also present and testifying was Mark Barkley.  
 
            The documentary evidence identified in the record consists 
 
            of joint exhibits 1-24.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated April 
 
            7, 1992, the parties presented the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant sustained an injury on March 27, 
 
            1989, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 2.  Whether the alleged injury is a cause of temporary 
 
            and permanent disability;
 
            
 
                 3.  The extent of entitlement to weekly compensation 
 
            for temporary total disability or healing period benefits;
 
            
 
                 4.  The extent of entitlement to weekly compensation 
 
            for permanent disability;
 
            
 
                 5.  The type of permanent disability and the 
 
            commencement date, if any; and,
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 6.  Claimant's entitlement to medical expenses under 
 
            Iowa Code section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all testimony 
 
            given at the hearing, arguments made, exhibits contained in 
 
            the exhibits herein, and makes the following findings:
 
            
 
                 Claimant commenced her employment at Firestone on March 
 
            27, 1989.  A pre-employment physical examination was within 
 
            normal limits.  She was assigned to work in the bead 
 
            building area where she worked until October 1989.  At that 
 
            time she was placed on light duty due to an onset of 
 
            bilateral progressive pain, numbness and tingling in her 
 
            upper extremities.  (Exhibits 5 & 14).
 
            
 
                 While on light duty, claimant performed various odd 
 
            jobs including wrapping wire and sweeping floors.  Despite 
 
            light duty work, her symptoms persisted.  On October 31, 
 
            1989, James Blessman, M.D., company doctor, decided to refer 
 
            her to Arnis B. Grundberg, M.D., orthopedist, for further 
 
            evaluation.
 
            
 
                 Dr. Grundberg examined claimant on November 3, 1989.  
 
            Her complaints were referable primarily to right upper 
 
            extremity pain and numbness.  Dr. Grundberg ordered an EMG 
 
            on December 1, 1989.  This revealed a right cubital tunnel 
 
            syndrome and a C-7 radiculopathy.  This was followed by an 
 
            MRI evaluation on December 8, 1989, which was within normal 
 
            limits.  Dr. Grundberg's impression was right carpal tunnel 
 
            syndrome, despite normal EMG, and right cubital tunnel 
 
            syndrome.  (Ex. 12).
 
            
 
                 Dr. Grundberg recommended surgical intervention but 
 
            claimant requested a second opinion, specifically a 
 
            neurological assessment.  Dr. Blessman referred claimant to 
 
            Patrick D. Reibold, M.D., neurologist.  She was seen in the 
 
            Neurology Clinic at Methodist Hospital on December 20, 1989.  
 
            She presented with complaints of right arm pain and weakness 
 
            throughout the entire hand with episodic numbness.  Repeat 
 
            EMG's and nerve conduction velocities were performed and no 
 
            significant abnormality found.  Dr. Reibold attributed 
 
            claimant's right upper extremity pain to overuse or 
 
            repetitive motion syndrome.  He found no overt evidence of 
 
            neurologic dysfunction or cervical radiculopathy.  He 
 
            concluded that claimant was not a surgical candidate and 
 
            recommended that she refrain from performing manual labor 
 
            which requires repetitive motions of her right upper 
 
            extremity.  He suggested a job change.  (Ex. 10).
 
            
 
                 On January 3, 1990, claimant saw her family physician, 
 
            E. L. Danielson, M.D., for treatment of a respiratory 
 
            infection.  She expressed some confusion regarding various 
 
            opinions from several specialists as to the etiology of her 
 
            cervical and upper extremity problems.  Dr. Danielson 
 
            indicated that there was enough discrepancy between 
 
            assessments and EMG interpretation to warrant a third 
 
            opinion.  He recommended that she be evaluated by an 
 
            orthopedist.  (Ex. 7).
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 On February 13, 1990, claimant was seen by Rodney E. 
 
            Johnson, M.D., orthopedist.  Claimant presented to Dr. 
 
            Johnson with right arm pain and paresthesia.  Dr. Johnson 
 
            indicated that she had an extensor tendonitis as well as a 
 
            thoracic outlet complaint.  He referred her to Robert 
 
            Thompson, M.D., for further evaluation.  (Ex. 6).  Dr. 
 
            Thompson found no particular nerve entrapment to explain a 
 
            thoracic outlet syndrome.  (Ex. 9, p. 4).  Claimant returned 
 
            to Dr. Danielson and he indicated that the Roos test seemed 
 
            strikingly positive, implying the presence of thoracic 
 
            outlet syndrome.  (Ex. 7, p. 4).  She returned to Dr. 
 
            Grundberg on March 13, 1990, and he diagnosed right cubital 
 
            tunnel syndrome.  He recommended light duty rather than 
 
            surgical therapy.  (Ex. 12, p. 3).  On March 20, 1990, 
 
            claimant returned to Dr. Thompson for a re-evaluation.  He 
 
            found her symptoms very difficult to sort out.  The Roos 
 
            test was performed and a very mild case of thoracic outlet 
 
            syndrome was diagnosed.  He reported that, "...if we were 
 
            going to explain all of her symptomatology on the basis of 
 
            thoracic outlet her Roos test should have been strongly 
 
            positive almost immediately during the exam and this is not 
 
            the case."  He recommended a course of physical therapy.  
 
            (Ex. 9, pp. 1-2).
 
            
 
                 On April 23, 1990, claimant presented to Dr. Danielson 
 
            with cyanotic hands, very similar to Raynaud's, and a 
 
            positive Roos test.  He felt that she had thoracic outlet 
 
            and referred her to Walter J. Riley, M.D.  (Ex. 7, p. 4).
 
            
 
                 Claimant was seen by Dr. Riley on April 23, 1990.  He 
 
            ordered a venogram of the upper extremities which was 
 
            performed on April 24, 1990.  (Ex. 8).  The venogram 
 
            revealed some compression on the left side at the thoracic 
 
            outlet.  (Ex. 3, p. 13).
 
            
 
                 Claimant was admitted to Iowa Lutheran Hospital by Dr. 
 
            Riley on May 2, 1990.  On May 3, 1990, he performed a first 
 
            rib resection.  (Ex. 3).  On May 7, 1990, Dr. Danielson 
 
            reported that claimant had a remarkable result from surgery 
 
            with complete resolution of the pain, discomfort and 
 
            Raynaud's type phenomena.  (Ex. 7, p. 6).
 
            
 
                 Claimant saw Dr. Johnson on July 17, 1990 for a 
 
            follow-up evaluation.  At this time, he recommended a work 
 
            hardening program.  On August 28, 1990, he reported that he 
 
            spoke with claimant's physical therapist and it was felt 
 
            that she had reached maximum medical improvement and would 
 
            not benefit from any further therapy.  Permanent 
 
            restrictions against frequent lifting of more than 20 pounds 
 
            and occasional lifting of 50 pounds were recommended.  (Ex. 
 
            6, p. 7).  On August 29, 1990, Dr. Blessman stated that 
 
            claimant could return to light duty with a 30 pound lifting 
 
            restriction and no work above shoulder level.  (Ex. 5, p. 
 
            4).
 
            
 
                 On September 19, 1990, claimant saw Dr. Blessman and 
 
            presented with complaints of left upper extremity problems.  
 
            He advised her to see Dr. Johnson for further evaluation.  
 
            (Ex. 5, p. 4).  Claimant then saw Dr. Johnson on September 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            25, 1990.  He recommended conservative therapy at this time.  
 
            (Ex. 6, p. 5).
 
            
 
                 At the request of Dr. Johnson, claimant was referred to 
 
            Thomas W. Bower, L.P.T., for an impairment rating on 
 
            November 1, 1990.  Claimant's complaints were referable to 
 
            right shoulder pain after lifting between 30-40 pounds and 
 
            persistent numbness over the last two fingers with 
 
            repetitive pulling on wire.  On examination, Mr. Bower noted 
 
            full range of motion of the right and left shoulder.  It was 
 
            his opinion that claimant sustained a nine percent 
 
            impairment to the whole body as a result of the thoracic 
 
            outlet problem.  (Ex. 4, pp. 3-4).
 
            
 
                 Claimant's left extremity symptoms became progressively 
 
            more severe.  On April 4, 1991, Dr. Danielson admitted 
 
            claimant to Iowa Lutheran Hospital for pain, numbness, 
 
            tingling with bluish color changes in her left hand and arm.  
 
            He reported a 2-1/2 year history of bilateral thoracic 
 
            outlet syndrome.  On April 4, 1991, Dr. Riley performed 
 
            resection of the left first rib.  (Ex. 3, pp.1-5).
 
            
 
                 Subsequent to surgery, claimant underwent physical 
 
            therapy with Tom Bower.  Dr. Danielson released claimant for 
 
            light duty effective July 16, 1991.  He imposed restrictions 
 
            of no repetitive use of the arms above the head or lifting 
 
            in excess of 30 pounds with outstretched arms.  (Ex. 7).
 
            
 
                 On July 18, 1991, claimant was notified by employer 
 
            that she would be laid off, in line with Plant Seniority, 
 
            effective July 29, 1991.  (Ex. 18, p. 66).
 
            
 
                 On October 14, 1991, claimant was seen by Thomas Bower 
 
            for an impairment rating.  Claimant reported right shoulder 
 
            pain and persistent numbness over the last two fingers as 
 
            well as left hand numbness.  A physical examination revealed 
 
            full range of motion of both shoulders.  Based on claimant's 
 
            clinical symptoms and knowing that thoracic outlet typically 
 
            compromises the lower trunk of the brachial plexus, Mr. 
 
            Bower concluded that claimant has sustained an overall 17 
 
            percent permanent impairment.  (Ex. 4, pp. 1-2).
 
            
 
                 Claimant was referred by insurance carrier to Peter D. 
 
            Wirtz, M.D., orthopedist, for evaluation on February 17, 
 
            1992.  On examination, Dr. Wirtz found stiffness in the 
 
            right shoulder rotator cuff.  On February 25, 1992, Dr. 
 
            Wirtz related the right shoulder stiffness to surgery 
 
            performed on the right shoulder.  He gave claimant an eight 
 
            percent impairment of the right upper extremity.  He 
 
            explained that the loss of motion in the right shoulder 
 
            related to the area distal to the glenohumeral joint.  He 
 
            further explained that, "The shoulder restrictions would 
 
            relate to side to side motion, pushing and pulling 
 
            activities, lifting activities and over-shoulder-height 
 
            activities of the right upper extremity beyond her 
 
            physiologic strength and dexterity."  (Ex. 19).
 
            
 
                                conclusions of law
 
            
 
                 Claimant has the burden of proving by a preponderance 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            of the evidence that she received an injury on March 27, 
 
            1989, which arose out of and in the course of her 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 
 
            908 (Iowa 1976); Musselman v. Central Telephone Co., 154 
 
            N.W.2d 128, 130 (Iowa 1967).  The words "arising out of" 
 
            have been interpreted to refer to the cause and origin of 
 
            the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971); Crowe v. DeSoto Consolidated School District, 
 
            68 N.W.2d 63, 65 (Iowa 1955).  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An 
 
            injury occurs in the course of the employment when it is 
 
            within the period of employment at a place the employee may 
 
            reasonably be, and while the employee is doing work assigned 
 
            by the employer or something incidental to it.  Cedar Rapids 
 
            Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 
 
            1979), McClure 188 N.W.2d at 287; Musselman, 154 N.W.2d at 
 
            130. 
 
            
 
                 The Supreme Court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the Court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes about, 
 
            not through the natural building up and tearing down of the 
 
            human body, but because of a traumatic or other hurt or 
 
            damage to the health or body of an employee.  The injury to 
 
            the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 The Almquist Court further observed that while a 
 
            personal injury does not include an occupational disease 
 
            under the Workers' Compensation Act, yet an injury to the 
 
            health may be a personal injury.  A personal injury includes 
 
            a disease resulting from an injury.  However, the result of 
 
            changes in the human body incident to the general processes 
 
            of nature do not amount to a personal injury.  This is true, 
 
            even though natural change may come about because the life 
 
            has been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 
            body. 
 
            
 
                 The Supreme Court has also recognized that a cumulative 
 
            injury may occur over a period of time.  The injury in such 
 
            cases occurs when, because of pain or physical disability, 
 
            the claimant is compelled to leave work.  McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).  
 
            Moreover, claimant's last employer becomes liable for the 
 
            cumulative injury, even if the incidents that lead to the 
 
            ultimate injury do not occur while a claimant is employed 
 
            with the last employer.  McKeever, 379 N.W.2d at 376; See 
 
            also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 
 
            434-35 (Iowa 1984).
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 The evidence in this case clearly indicates that 
 
            claimant started at Firestone on March 28, 1989 and was 
 
            placed in the bead building department.  This work required 
 
            repetitive use of her upper extremities.  By May of 1989, 
 
            she began having progressive pain, numbness and tingling in 
 
            her arms, the right greater than the left.  Dr. Blessman, 
 
            the company physician, diagnosed tendonitis.  She was placed 
 
            on light duty in October 1989.  (Ex. 5, p. 9).  At that 
 
            time, it was determined that she was unable to perform 
 
            repetitive grasping or lifting with her right hand.  Dr. 
 
            Blessman referred her to Dr. Grundberg in December 1989 and 
 
            he recommended surgery on the right wrist and elbow.  A 
 
            second opinion was sought from Dr. Reibold, a neurologist on 
 
            December 20, 1989.  He indicated that her symptoms were due 
 
            to overuse or repetitive motion syndrome.  (Ex. 10, p. 3).  
 
            In January 1990, she was put on permanent restrictions from 
 
            repetitive grasping and lifting more than 15 pounds with her 
 
            right arm.  In February 1990, she pursued conservative 
 
            physical therapy but her condition did not improve.  (Ex. 5, 
 
            p. 6).  On her own, she went to see Dr. Johnson.  He felt 
 
            that she had developed thoracic outlet syndrome and extensor 
 
            tendonitis as a result of the work activity she had 
 
            performed with employer.  (Ex. 6, p. 8).  Dr. Johnson 
 
            referred her to Dr. Thompson.  He felt she did not have 
 
            thoracic outlet syndrome.  (Ex. 9, p. 4).  She was continued 
 
            on physical restrictions at work.  By April 26, 1990, she 
 
            reported to Dr. Blessman that she was having similar 
 
            problems with her left arm.  This had developed despite the 
 
            fact that she was on light duty.  She was restricted from 
 
            repetitive grasping or reaching with either arm.  (Ex. 5, p. 
 
            5).  Claimant conferred with Dr. Danielson, her family 
 
            physician, and he diagnosed bilateral thoracic outlet 
 
            syndrome and asked Dr. Riley to see her.  Vascular studies 
 
            showed very significant compression of the vessels 
 
            compatible with thoracic outlet syndrome and she underwent 
 
            first rib resection on the right in May 1990 and on the left 
 
            in April 1991.  Dr. Danielson felt that her symptoms were 
 
            aggravated by her employment at Firestone.  (Ex. 7, p. 5).  
 
            Dr. Blessman testified in a deposition, that one cause of 
 
            thoracic outlet syndrome is repetitive use.  (Ex. 1, p. 10).
 
            
 
                 After carefully considering the total evidence in this 
 
            case, the undersigned concludes that claimant sustained a 
 
            simultaneous bilateral thoracic outlet cumulative injury, 
 
            which arose out of and in the course of her employment with 
 
            employer.  Prior to working for Firestone, claimant was 
 
            asymptomatic.  As a result of repetitive pulling and hand 
 
            manipulations, claimant eventually developed symptoms in her 
 
            wrists, elbows, shoulders and neck.  These symptoms resulted 
 
            from the nature of claimant's work activity and gradually 
 
            and progressively developed.  The fact that physicians 
 
            disagree on claimant's diagnosis is irrelevant to the issues 
 
            in this case.  The fact that there is dispute among 
 
            physicians regarding appropriate treatment for claimant's 
 
            symptoms is also irrelevant.  What is relevant is the fact 
 
            that claimant was asymptomatic prior to commencing 
 
            employment; that her injury occurred while working for 
 
            employer; and resulted from the type of work she performed.  
 
            Claimant has met her burden of proof in this regard.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Since claimant has suffered an injury, the next 
 
            question to be resolved is whether the injury has caused a 
 
            permanent disability.  The claimant has the burden of 
 
            proving by a preponderance of the evidence that the injury 
 
            of April 28, 1990, is causally related to the disability on 
 
            which she now bases her claim.  Bodish v. Fischer, Inc., 133 
 
            N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 
 
            N.W.2d 607, 613-14 (Iowa 1945).  A possibility if 
 
            insufficient; a probability is necessary.  Burt v. John 
 
            Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 
 
            1955).  The question of causal connection is essentially 
 
            within the domain of expert testimony.  Bradshaw v. Iowa 
 
            Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).  Expert 
 
            medical evidence must be considered with all other evidence 
 
            introduced bearing on the causal connection.  Burt, 73 
 
            N.W.2d at 738.  The opinion of the experts need not be 
 
            couched in definite, positive or unequivocal language.  
 
            Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).  
 
            Moreover, the expert opinion may be accepted or rejected, in 
 
            whole or in part, by the trier of fact.  Sondag, 220 N.W.2d 
 
            at 907.  Finally, 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 
 
            material circumstances.  Bodish, 133 N.W.2d at 870; 
 
            Musselman, 154 N.W.2d at 133.  The Supreme Court has also 
 
            observed that greater deference is ordinarily accorded 
 
            expert testimony where the opinion necessarily rests on 
 
            medical expertise.  Sondag, 220 N.W.2d at 907.
 
            
 
                 Physicians who have treated/examined claimant have 
 
            related her symptoms to the repetitive nature of her job 
 
            activities.  Claimant's bilateral injury required surgical 
 
            intervention with resultant physical restrictions.  Dr. 
 
            Danielson prohibited her from lifting more than 30 pounds 
 
            and indicated she should not work above shoulder level.  Dr. 
 
            Blessman concurred with these restrictions.  (Ex. 5, p. 3).  
 
            Claimant has been given a permanent impairment rating by her 
 
            physical therapist of 17 percent.  Dr. Wirtz, for some 
 
            reason, only rated claimant's right upper extremity.  He 
 
            indicated that she has loss of motion in the area distal to 
 
            the glenohumeral joint.  He gave her an eight percent 
 
            permanent impairment rating taking into consideration her 
 
            shoulder restrictions relating to side to side motion, 
 
            pushing and pulling activities, lifting activities and 
 
            over-shoulder-height activities of the right upper 
 
            extremity.  (Ex. 19).  Claimant has satisfied her burden of 
 
            proof in demonstrating that she has suffered a permanent 
 
            work related disability.
 
            
 
                 The next issue to be determined is the extent of 
 
            claimant's disability.
 
            
 
                 The evidence clearly shows that claimant's bilateral 
 
            thoracic outlet syndrome extended beyond the arm to the body 
 
            as a whole.  Although Mr. Bower, on October 14, 1991, found 
 
            full range of motion of both shoulders, Dr. Wirtz, an 
 
            orthopedist, found otherwise.  He noted that claimant had 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            loss of right shoulder motion related to the surgical 
 
            conditions to her shoulder in the area distal to the 
 
            glenohumeral joint.  She has been restricted throughout in 
 
            engaging in activities over the shoulder.  She has 
 
            persistent pain in both shoulders with activity.  Claimant's 
 
            pain is substantiated by the clinical findings in the 
 
            record.  Claimant has demonstrated that her impairment 
 
            extends into the body as a whole.
 
            
 
                 A shoulder injury is an injury to the body as a whole 
 
            if the injury affects the "body side" of the shoulder joint.  
 
            Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986).  The 
 
            agency has typically compensated shoulder injuries 
 
            industrially on the basis that such injuries involve 
 
            disability to the body as a whole.  Streeter v. Iowa Meat 
 
            Processing Co., file numbers 730461 and 809945 (App. Decn., 
 
            March 31, 1989); Nazarenus v. Oscar Mayer & Co., II Iowa 
 
            Industrial Commissioner Report 281 (1982); Houser v. A M 
 
            Cohron & Sons, file number 851752 (Ar. Decn., July 18, 
 
            1990).  Noting in particular that the surgical procedure 
 
            undertaken by Dr. Wirtz invaded the body side of the joint 
 
            (the acromion and deltoid were affected), it is held that 
 
            claimant's injury must be compensated industrially.
 
            
 
                 Industrial disability was defined in Diederich v. 
 
            Tri-City Railway Co., 258 N.W.2d 899, 902 (Iowa 1935) as 
 
            loss of earning capacity and not a mere `functional 
 
            disability' to be computed in the terms of percentages of 
 
            the total physical and mental ability of a normal person.  
 
            The essence of an earning capacity inquiry then, is not how 
 
            much has the claimant been functionally impaired, but 
 
            whether that impairment, in combination with the claimant's 
 
            age, education, work experience, pre and post injury wages, 
 
            motivation and ability to get a job within her restrictions, 
 
            if any restrictions have been imposed, have caused a loss of 
 
            earning capacity.  Olson v. Goodyear Service Stores, 125 
 
            N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway 
 
            Co., 258 N.W. 899, 902 (Iowa 1935); Peterson v. Truck Haven 
 
            Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 
 
            (1985); Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r 
 
            Dec. No. 3, 529, 534-535 (1985).
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There is no 
 
            equation which can be applied and then calculated to 
 
            determine the degree of industrial disability to the body as 
 
            a whole.  It therefore becomes necessary for the deputy or 
 
            commissioner to draw upon prior experience and general and 
 
            specialized knowledge to make a finding with regard to the 
 
            degree of industrial disability.  See, Peterson, 1 Iowa 
 
            Industrial Commissioner Decisions No. 3, at 658; 
 
            Christening, 1 Iowa Industrial Commissioner Decisions No. 
 
            3, at 535.
 
            
 
                 Claimant was born on June 13, 1955, and is currently 36 
 
            years old.  The fact that claimant was disabled in the peak 
 
            earning years of her employment career makes her disability 
 
            worse than it would be for a younger or older individual.  
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            McCoy v. Donaldson Company, Inc., IAWC Decisions of the 
 
            Iowa Industrial Commissioner 400 (1989).  
 
            
 
                 Claimant graduated from high school in 1973 and has 
 
            performed unskilled entry-level jobs during the course of 
 
            her working career from 1972 through 1989.  She has been 
 
            enrolled at Des Moines Area Community College in the 
 
            commercial art program since September 1991 and is expected 
 
            to graduate in the Spring of 1994.  She has been unemployed 
 
            since being laid off from Firestone on July 29, 1991, and 
 
            has made no attempt to bind work.  She receives $70 per week 
 
            in child support for her daughter and $194 per week in 
 
            unemployment compensation benefits.  She shares her home 
 
            with Mark Barkley and they split household expenses 50-50.  
 
            Claimant's wage at the time of her injury was $442.79 per 
 
            week.  Claimant's injury has resulted in a loss of earnings 
 
            and earning capacity.
 
            
 
                 Based upon the foregoing factors, all of the facts used 
 
            to determine industrial disability, and employing agency 
 
            expertise, it is determined that claimant sustained a 40 
 
            percent industrial disability and is entitled to 200 weeks 
 
            of permanent partial disability benefits commencing on July 
 
            16, 1991, when Dr. Danielson released her to return to work 
 
            activity.  Claimant is also entitled to healing period 
 
            benefits from April 28, 1990 (when she was taken off work in 
 
            preparation for surgery) through August 28, 1990 and again 
 
            from April 4, 1991 through July 15, 1991 when she was 
 
            released to return to work after recuperating from her 
 
            second surgery.  
 
            
 
                 Section 85.34(1), Code of Iowa, provides that healing 
 
            period benefits are payable to an injured worker who has 
 
            suffered permanent partial disability until (1) he has 
 
            returned to work; (2) is medically capable of returning to 
 
            substantially similar employment or (3) has achieved maximum 
 
            medical recovery.  The industrial commissioner has 
 
            recognized that healing period benefits can be interrupted 
 
            or intermittent.  Willis v. Lehigh Portland Cement Company, 
 
            Vol. 2-1, State of Iowa Industrial Commissioner Decisions, 
 
            485 (1948).
 
            
 
                 Finally, claimant is entitled to be reimbursed for 
 
            out-of-pocket medical expenses incurred at Iowa Lutheran 
 
            Hospital and physical therapy consultants (Ex. 23 & 24).  
 
            The employer has the right to chose the provider of care, 
 
            except where the employer has denied liability for the 
 
            injury.  Section 85.27.  Claimant is not entitled to 
 
            reimbursement for medical bills unless claimant shows there 
 
            were paid from claimant's funds.  Caylor v. Employers Mutual 
 
            Casualty Co., 337 N.W.2d 890 (Iowa Ct. App. 1983).
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay to claimant intermittent healing 
 
            period benefits from April 28, 1990 through August 28, 1990 
 
            and from April 4, 1991 through July 15, 1991 at the rate of 
 
            two hundred eighty-four and 20/100 dollars ($284.20) per 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            week.
 
            
 
                 That defendants pay to claimant two hundred (200) weeks 
 
            of permanent partial disability benefits at the rate of two 
 
            hundred eighty-four and 20/100 dollars ($284.20).
 
            
 
                 That defendants reimburse claimant for out-of-pocket 
 
            medical expenses incurred as set out in exhibits 23 and 24.
 
            
 
                 That defendants receive credit under Iowa Code section 
 
            85.38(2) for the net amount of previous payments made under 
 
            a nonoccupational group plan.  Beller v. Iowa State 
 
            Penitentiary, (Appeal Decision, File number 799491, Filed 
 
            July 10, 1991).
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants pay all costs pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 That defendants file claim activity reports as required 
 
            the agency.
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Jeffrey G Flagg
 
            Attorney at Law
 
            2716 Grand Avenue
 
            Des Moines Iowa 50312
 
            
 
            Mr Marvin E Duckworth
 
            Attorney at Law
 
            Terrace Center Ste 111
 
            2700 Grand Avenue
 
            Des Moines Iowa 50312
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1802 - 5-1803
 
                 `                        Filed April 14, 1992
 
                                          JEAN M. INGRASSIA
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LINDA HOLSEID,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 954435
 
            FIRESTONE TIRE & RUBBER       :
 
            COMPANY,                      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1802
 
            Claimant found entitled to healing period benefits for a 
 
            simulataneous bilateral thoracic outlet injury requiring 
 
            right rib resection on May 2, 1990 and left rib resection on 
 
            April 4, 1991.  Healing period benefits were awarded from 
 
            April 28, 1990 through August 28, 1990 and from April 4, 
 
            1991 through July 15, 1991.
 
            
 
            5-1803
 
            Claimant found entitled to 40 percent industrial disability 
 
            as a result of bilateral thoracic outlet syndrome effecting 
 
            the use of her upper extremities.  Claimant's injury found 
 
            to extend into the body as a whole as the result of limited 
 
            range of motion of her right shoulder and restrictions of 
 
            over-head lifting.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARSHALL TRELEVEN,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 954438
 
            HY-VEE FOOD STORES, INC.,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL CASUALTY CO.,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Marshall 
 
            Treleven, claimant, against Hy-Vee Food Stores, Inc., 
 
            employer, and Employers Mutual Casualty Company, insurance 
 
            carrier, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an injury sustained on July 
 
            25, 1990.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner on October 31, 
 
            1991, in Des Moines, Iowa.  The record was considered fully 
 
            submitted at the close of the hearing.  Defendants requested 
 
            and were granted leave to submit a brief by November 5, 
 
            1991.  The record in this case consists of claimant's 
 
            testimony and testimony from Randy Evans and Donald Price.  
 
            The record also consists of joint exhibits 1-4, claimant's 
 
            exhibits A-L and defendants' exhibits I and II.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report and order dated 
 
            October 31, 1991, the parties have submitted the following 
 
            issues for resolution:
 
            
 
                 1.  The extent of entitlement to weekly compensation 
 
            for permanent disability benefits which was stipulated to be 
 
            an industrial disability to the body as a whole; and,
 
            
 
                 2.  Whether claimant is entitled to penalty benefits 
 
            under Iowa Code section 86.13.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, and evidence 
 
            contained in the exhibits, and makes the following findings:
 
            
 
                 Claimant was born on February 22, 1963 and completed 
 
            the twelfth grade of school.  Prior to November 1987, he 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            worked as a house painter and food store night stocker.  In 
 
            November 1987, he went to work for Save-U-More store which 
 
            is owned by Hy-Vee Food Stores.  He started out as a night 
 
            stocker and was promoted to night stock manager, assistant 
 
            shift manager and shift manager.  Currently, he is a frozen 
 
            food manager.  Claimant testified he injured his back on 
 
            July 25, 1990, and employer has acknowledged liability for 
 
            this injury.
 
            
 
                 Claimant was injured on July 25, 1990, while moving the 
 
            entire bulk food department at the Save-U-More store.  The 
 
            bins were very heavy and difficult to move.  He moved some 
 
            of the bins with Don Price, assistant store manager, until 
 
            he was called away to do something else.  He nudged a real 
 
            heavy bin by himself and in the process felt a sharp twinge 
 
            in his lower back.  He continued to work alone until Don 
 
            returned and they completed the job together.  Claimant 
 
            worked the entire day and complained that he was sore all 
 
            over.  He did not see a physician until August 7, 1990, and 
 
            lost no time from work until August 21, 1990.  The day prior 
 
            to his appointment with a physician, he was involved in a 
 
            minor automobile accident.  Claimant testified that he was 
 
            not injured in the accident but suffered some damage to his 
 
            rear bumper and tailgate.  Claimant filed an accident report 
 
            at the police station because no policeman came to the scene 
 
            of the accident.  Claimant settled with the other driver who 
 
            was uninsured.  Claimant testified that he went to see a 
 
            physician the day after his car accident because his back 
 
            symptoms from the work accident had become so severe he 
 
            could no longer tolerate the pain.
 
            
 
                 The pertinent medical evidence of record reveals that 
 
            claimant was seen by Kenneth M. Andersen, M.D., at Mercy 
 
            Medical Clinic on August 7, 1990.  He presented with low 
 
            back pain extending into the pelvic region without radiation 
 
            down into the legs.  He was treated conservatively and given 
 
            Naprosyn for pain.  He returned to the clinic on August 20, 
 
            1990, with increased pain.  He saw John C. Tapp, D.O., for 
 
            evaluation.  A CT scan was scheduled the next day.  The 
 
            results showed a herniated disc on the left side at L5-S1 
 
            compressing the nerve root.  He was told of the results by 
 
            Dr. Tapp on August 23 and referred to William R. Boulden, 
 
            M.D., for an orthopaedic evaluation (exhibit 3, pages 1-6).
 
            
 
                 Dr. Boulden saw claimant on August 28, 1990.  Dr. 
 
            Boulden reviewed the CT scan with claimant and indicated 
 
            that surgical excision was the only logical treatment 
 
            (exhibit 2, page 4).
 
            
 
                 Claimant testified that he did not return to Dr. 
 
            Boulden because the insurance carrier refused to pay for his 
 
            treatment and Dr. Boulden would not work without an 
 
            assurance of payment.  Because of his persistent symptoms, 
 
            claimant sought medical treatment from Daniel J. McGuire, 
 
            M.D., on September 13, 1990.  A physical examination 
 
            revealed an S-1 radiculopathy on the left, which correlated 
 
            with the herniated disc seen on his CT scan.  On September 
 
            25, 1990, Dr. McGuire performed a partial discectomy at 
 
            L5-S1 on the left side.  One week after surgery, claimant 
 
            had no leg pain and was walking three miles per day.  On 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            October 30, 1990, Dr. McGuire referred claimant to Iowa 
 
            Methodist Low Back Institute for physical therapy and return 
 
            to work conditioning (exhibit 1, pages 3-5).
 
            
 
                 Claimant was seen in the physical therapy clinic for 
 
            seven sessions beginning October 30, 1990, and ending 
 
            November 7, 1990.  Physical therapy notes indicate that he 
 
            demonstrated steady improvement in all aspects of his 
 
            conditioning program increasing both time and speed.  He 
 
            demonstrated an ability to lift up to 55 pounds on a 
 
            repetitive basis with no discomfort.  At the time of the 
 
            final evaluation, he demonstrated normal strength in 
 
            bilateral lower extremities which was an improvement of one 
 
            full grade of strength in his left lower extremity from the 
 
            initial evaluation (exhibit 4, pages 1-3).
 
            
 
                 Claimant testified that he returned to work in November 
 
            1990 because he was completely broke after being off work 11 
 
            and 1/2 weeks and had not received any workers' compensation 
 
            checks from employer/insurance company.  As he became more 
 
            active at his job, he began having increasing back problems 
 
            and some leg pain.  He saw Dr. McGuire on February 25, 1991, 
 
            and his progress notes indicate "I told him that if I placed 
 
            a lot of restrictions on him that he would probably be fired 
 
            from his job.  If I placed a lot of restrictions on him he 
 
            would have a hard time getting a new job."  (Exhibit 1, page 
 
            3).
 
            
 
                 On May 13, 1991, Dr. McGuire stated that, "Based on the 
 
            A.M.A. guidelines, he has a 10% permanent partial disability 
 
            as it relates to his abnormal disc, surgical intervention, 
 
            and residual symptoms."  He further stated, "I believe he 
 
            can go and do most things.  Without a doubt, short-term and 
 
            long-term he would do better with his back problem if he is 
 
            not involved with heavy manual labor, lifting heavy things 
 
            repeatedly in the 100-200 pound range, and doing repeated 
 
            twisting and bending."  (Exhibit 1, pages 1-2).
 
            
 
                                conclusions of law
 
            
 
                 The record clearly demonstrates that claimant has a 
 
            permanent disability which is causally related to his 
 
            injury.  Claimant has clearly shown by a preponderance of 
 
            the evidence that he sustained an industrial disability as a 
 
            result of his July 25, 1990, back injury.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 
 
            N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 285, 
 
            110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Christensen v. Hagen, Inc., Vol. 1 No. 3 State 
 
            of Iowa Industrial Commissioner Decisions 529 (App. March 
 
            26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 
 
            State of Iowa Industrial Commissioner Decisions 654 (App. 
 
            February 28, 1985).
 
            
 
                 Factors to be considered when assessing industrial 
 
            disability include claimant's age, education, work 
 
            experience, impairment and work restrictions.
 
            
 
                 As previously noted, claimant is a younger individual 
 
            who was born on February 22, 1963.  He graduated from high 
 
            school in 1981 and has not pursued any other educational 
 
            endeavors.  He worked five years as a house painter, 
 
            stripping, priming and painting exteriors.  This work was 
 
            very physical and strenuous.  He also worked as a night 
 
            stocker for Dahl's Food Store where he unloaded grocery 
 
            trucks.  This job required heavy lifting, frequent bending, 
 
            stooping and standing.  In November 1987, he transferred 
 
            from Dahl's Foods to Save-U-More store.  Initially, he was a 
 
            night stocker.  He was eventually promoted to night stock 
 
            manager, assistant shift manager and shift manager.  At the 
 
            time of his injury on July 25, 1990, he was a shift manager.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            In this capacity, he was responsible for the overall running 
 
            of the store, fielded complaints from customers and 
 
            employees and supervised about 100 workers.  His job was 
 
            unique in that he worked days only and ordered groceries.  
 
            When he returned to work after surgery, he resumed his job 
 
            as a shift manager but was put back on day/night rotation.  
 
            Eventually, he was transferred to the frozen food department 
 
            and made manager.  According to Randy Evans, store manager, 
 
            and Donald Price, assistant store manager, this transfer is 
 
            regarded as a promotion because claimant is responsible for 
 
            the profit/loss of the store and is considered a part of the 
 
            management team and participates in management meetings.  
 
            This job also has the potential for promotion up the company 
 
            ladder.  Both gentlemen testified that claimant has no fear 
 
            as to job security because he is a valued employee, highly 
 
            motivated and very responsible.  At the time of his injury 
 
            on July 25, 1990, claimant was earning $10.10 an hour.  As 
 
            of October 31, 1991, he earns $10.65 an hour, including 
 
            medical benefits and life insurance.  During his time off 
 
            work because of surgery and recuperation, he received 
 
            disability checks in the amount of $150.00 per week from the 
 
            company.
 
            
 
                 Claimant has been steadily employed now for more than 
 
            one year and has not taken any time off due to illness or 
 
            back problems.  On September 25, 1990, claimant underwent a 
 
            partial discectomy at L5-S1 on the left side.  By October 3, 
 
            1990, he was able to walk three miles (exhibit 1, page 4).  
 
            A physical therapy note dated October 31, 1990, indicates 
 
            that on evaluation, claimant had no complaints of discomfort 
 
            in his low back.  However, he did have some weakness in his 
 
            left lower extremity and an excessive amount of muscle 
 
            tightness in the left lower extremity and trunk on range of 
 
            motion.  He appeared to be somewhat deconditioned and a 
 
            program was instituted to help him in this regard.  After 
 
            participating in eight physical therapy treatments at the 
 
            Low Back Institute, he demonstrated normal strength in 
 
            bilateral lower extremities.  It was noted that he 
 
            demonstrated steady improvement and diligence toward 
 
            completing his conditioning program (exhibit 4).  Dr. 
 
            McGuire gave him a ten percent permanent partial disability 
 
            and stated that he should not be involved with heavy manual 
 
            labor, lifting heavy things repeatedly in the 100-200 pound 
 
            range, and doing repeated twisting and bending (exhibit 1, 
 
            pages 1-2).
 
            
 
                 Because of his young age, claimant's industrial 
 
            disability is less serious than it would be for an older 
 
            worker who is injured at the peak of his earning career.  
 
            Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report 
 
            of the Industrial Commissioner 34 (App. 1979); McCoy v. 
 
            Donaldson Co., File Nos. 782670 and 805200 (App. April 28, 
 
            1989).
 
            
 
                 Claimant has a loss of earning capacity due to his back 
 
            surgery, although he has no actual loss of earnings.  
 
            Claimant is able to work 40 hours a week with overtime if he 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            so desires.  His job does not require lifting in excess of 
 
            30 pounds.  Claimant's work history has consisted of manual 
 
            labor and supervisory duties.
 
            
 
                 Thus, after considering all of the factors of 
 
            industrial disability, it is found that the evidence in this 
 
            case supports an award of 20 percent permanent partial 
 
            disability benefits which entitles claimant to recover 100 
 
            weeks of benefits under Iowa Code section 85.34(2)(u).
 
            
 
                 The final issue to be determined is whether claimant is 
 
            entitled to penalty benefits under Iowa Code section 86.13.  
 
            This section provides, in pertinent part, as follows:
 
            
 
                 If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 Under section 86.13, a penalty is not awarded for 
 
            nonpayment of medical expenses.  Penalty benefits are only 
 
            applicable to weekly compensation benefits.  Zahn v. Iowa 
 
            State Men's Reformatory, IV Iowa Industrial Commissioner 
 
            Report 409, 410 (1983).  If it is alleged that an employer 
 
            wrongfully withheld weekly compensation benefits, claimant 
 
            must establish that the benefits were withheld unreasonably 
 
            in order for claimant to receive additional benefits under 
 
            section 86.13.  Curtis v. Swift Indep. Packing, IV Iowa 
 
            Industrial Commissioner Report 88, 93 (1984).
 
            
 
                 It is reasonable for an employer to withhold benefits 
 
            when the employer was not alerted to occurrences which would 
 
            notify a reasonable person that benefits would be due or 
 
            when there was no work time lost.  McCormack v. Sunsprout, I 
 
            Iowa Industrial Commissioner Decisions No. 1, 142, 144 
 
            (1984).  However, if there are no contradictions in the 
 
            claimant's claim, then a penalty will be assessed.  Willis 
 
            v. Ruan Transport Corp., IV Iowa Industrial Commissioner 
 
            Report 395, 396 (1984) (The doctors' reports and the 
 
            claimant's statements regarding the injury and its 
 
            connection to an incident at work are consistent.  
 
            Withholding benefits in this instance was found to be 
 
            unreasonable and a penalty was assessed to the healing 
 
            period benefits.  Employer was given the benefit of the 
 
            doubt as to whether the injury caused a permanent impairment 
 
            due to claimant's preexisting back complaints.).
 
            
 
                 Where a claim is "fairly debatable," defendants are 
 
            entitled to argue their position, whether the debate 
 
            concerns a matter of fact or law.  The agency has adopted 
 
            the analysis that the claimant must show the absence of a 
 
            reasonable basis for denying benefits of a policy and 
 
            defendants' knowledge or reckless disregard of the lack of a 
 
            reasonable basis for denying the claim.  Dodd v. Oscar Mayer 
 
            Foods Corp., File No. 724378 (Penalty Decn., April 27, 
 
            1989).
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 Generally, penalty benefits are not awarded where there 
 
            is a legitimate dispute on either causation or the extent of 
 
            impairment.  Just v. HyGrade Food Products Corp., IV Iowa 
 
            Industrial Commissioner Report 190 (App. Decn. 1984).  
 
            Claimant testified that he was injured on July 25, 1990.  
 
            However, he did not communicate to the assistant store 
 
            manager or store manager any physical problems except that 
 
            he was sore after moving some heavy bins.  He reported to 
 
            work every day thereafter and sought no medical treatment 
 
            until August 7, 1990, which just happened to be the day 
 
            after he was involved in an automobile accident.  When 
 
            claimant was found to have a herniated disc on August 21, 
 
            1990, defendants legitimately disputed the cause of his 
 
            impairment in view of his automobile accident and failure to 
 
            report an injury to his supervisor.  In investigating the 
 
            claim, contact was made with Dr. Boulden.  On February 22, 
 
            1991, he stated, "At this point in time, it is difficult to 
 
            say which one of these has caused the rupturing of the 
 
            disc."  (Exhibit 2, page 3).  Dr. McGuire stated on May 13, 
 
            1991, that, "I guess we will never know the source of his 
 
            initial injury."  (Exhibit 1, page 2).  Finally, on June 20, 
 
            1991, Dr. Boulden stated that, "It would be my medical 
 
            opinion that the lifting injury was the more responsible 
 
            injury in causing the ruptured disc."  (Exhibit 2, page 1).  
 
            In August 1991, defendants admitted liability and have, 
 
            since that time, paid all of claimant's medical expenses, 
 
            healing period benefits and ten percent permanent partial 
 
            disability benefits based on Dr. McGuire's impairment 
 
            rating.  Consequently, it is determined that claimant is not 
 
            entitled to penalty benefits under Iowa Code section 
 
            86.13(4).
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant one hundred (100) weeks 
 
            of permanent partial disability benefits at the rate of two 
 
            hundred eighty-three and 33/100 dollars ($283.33) per week 
 
            commencing November 8, 1990.
 
            
 
                 That defendants receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay the costs of this action pursuant 
 
            to rule 343 IAC 4.33.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants file claim activity reports as required 
 
            by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                 
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Glenn Goodwin
 
            Attorney at Law
 
            4th Floor, Equitable Building
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Jeffrey M. Margolin
 
            Attorney at Law
 
            Suite 111, Terrace Center
 
            2700 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                           5-1803; 4000.2
 
                           Filed November 18, 1991
 
                           JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARSHALL TRELEVEN,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 954438
 
            HY-VEE FOOD STORES, INC.,     :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL CASUALTY CO.,:
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-1803
 
            
 
                 Claimant is 28 years old and completed the twelfth 
 
            grade of school.  He worked five years as an exterior house 
 
            painter.  He worked two and one-half years at Dahl's Foods 
 
            as a night stocker.  He has worked since November 1987 at 
 
            Save-U-More store and has been promoted from night stocker 
 
            to night stock manager, assistant shift manager and shift 
 
            manager.  At the time of his injury on July 25, 1990, he was 
 
            a shift manager and earned $10.10 an hour.  On August 21, 
 
            1990, he was diagnosed with a herniated disc.  A partial 
 
            discectomy at L5-S1 on the left side was performed on 
 
            September 25, 1990.  He returned to work in November 1990 at 
 
            his former job.  He was then transferred to the frozen food 
 
            department as department manager.  This job required no 
 
            lifting in excess of 30 pounds.  Claimant had been released 
 
            to return to work with minimal restrictions including no 
 
            involvement in heavy manual labor, lifting repeatedly in the 
 
            100-200 pound range, and doing repeated twisting and 
 
            bending.  His treating surgeon gave him a ten percent 
 
            permanent partial disability rating.  At the time of the 
 
            hearing, claimant was earning $10.65 an hour.  He is a 
 
            valued employee, highly motivated and has promotion 
 
            potential.  Claimant was found to be 20 percent industrially 
 
            disabled.
 
            
 
            4000.2
 
            
 
                 Claimant requested penalty benefits under Iowa Code 
 
            section 86.13.  Generally, penalty benefits are not awarded 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            where there is a legitimate dispute on either causation or 
 
            the extent of impairment.  Just v. HyGrade Food Products 
 
            Corp., IV Iowa Industrial Commissioner Report 190 (App. 
 
            Decn. 1984).
 
            
 
                 Claimant lost no time from work until August 7, 1990, 
 
            when he first went for a medical assessment.  This 
 
            appointment was made the day after he was also involved in 
 
            an automobile accident.  Claimant's claim was in "fairly 
 
            debatable" and employer/insurance carrier had a reasonable 
 
            basis for denying his claim.  Dodd v. Oscar Mayer Food 
 
            Corp., File No. 724378 (Penalty Decn., April 27, 1989).  
 
            Two physicians indicated that it is difficult to say which 
 
            incident caused claimant's ruptured disc.  However, on June 
 
            20, 1991, one physician indicated that the lifting injury 
 
            was probably more responsible for claimant's disc than the 
 
            automobile accident.  Defendants assumed liability of the 
 
            claim in August 1991.  Consequently, penalty benefits were 
 
            denied.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARK DELING,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 954443
 
            IOWA BEEF PROCESSORS,         :
 
                                          :     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 is a proceeding in arbitration brought by Mark 
 
            Deling, claimant, against IBP, the employer, and 
 
            self-insured, as defendant.
 
            
 
                 The record in this case consists of the testimony from 
 
            the claimant, John Herman, Jr., Sharon Deling, and Jeffrey 
 
            Dayton; claimant's exhibits 1 through 27; and, defendant's 
 
            exhibits A, B, F, G and H.
 
            
 
                 The matter came on for hearing before the undersigned 
 
            deputy on March 3, 1992, at Storm lake, Iowa.
 
            
 
                                      issues
 
            
 
                 The parties have submitted the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant has sustained a permanent 
 
            disability due to the injury; and,
 
            
 
                 2.  If claimant has sustained a permanent disability, 
 
            whether he has sustained a loss of earning capacity or 
 
            industrial disability.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            having reviewed all of the evidence received, finds the 
 
            following facts:
 
            
 
                 Claimant was born on August 25, 1957.  He graduated 
 
            from high school in 1976, and stated that he received below 
 
            average grades.
 
            
 
                 After graduating from high school in 1976, claimant 
 
            joined the U.S. Air Force for three months, and received an 
 
            honorable discharge.
 
            
 
                 From 1976 to 1980, claimant worked for several 
 
            employers as a general laborer.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 In 1980, claimant went to work for Northwest Bodies in 
 
            Manson, Iowa.  He earned $5 per hour and worked at the shop 
 
            for approximately five years.
 
            
 
                 In April of 1985, claimant sought and received 
 
            employment with IBP in Storm Lake, Iowa.  In August 1989, 
 
            claimant was working as a floor janitor during the day 
 
            shift.
 
            
 
                 On August 10, 1989, claimant encountered some machine 
 
            problems and went to the conveyor line to contact his 
 
            supervisor.  As he walked up a catwalk, he hit his head on 
 
            overhead pipes.  Claimant stated that he felt pain, and 
 
            reported the incident to his supervisor.  He continued 
 
            working, but subsequently went to see the plant nurse.  
 
            Claimant was sent to Scott Wulfekuhler, M.D.  Claimant was 
 
            referred to Kevin Liudahl, M.D., who subsequently referred 
 
            claimant to a specialist in Omaha, David Clough, M.D., a 
 
            neurosurgeon.  Claimant was treated conservatively 
 
            initially, but in November of 1989, underwent an MRI of the 
 
            neck which revealed a herniated disc at the C4-5 level, a 
 
            mild bulging of the disc at the C5-6 level, and a central 
 
            and left herniated disc at the C6-7 level.  Claimant was 
 
            referred to Quintin Durward, M.D.  Claimant received 
 
            physical therapy through much of November of 1989, and 
 
            stated that he was getting worse from the therapy 
 
            (Claimant's Exhibit 25, page 112).
 
            
 
                 After several more months of conservative treatment, 
 
            claimant was referred to Lyal Leibrock, M.D., of the 
 
            University of Nebraska Medical Center, for a second opinion.  
 
            It was recommended that claimant undergo an anterior C6-7 
 
            microsurgical diskectomy, cord and root decompression and 
 
            fusion, which claimant underwent on July 17, 1990 (Cl. Ex. 
 
            1, p. 37).
 
            
 
                 Claimant was off of work until October 21, 1990.  
 
            During this time, he underwent extensive physical therapy 
 
            and work hardening programs.
 
            
 
                 Claimant was released to return to work, and began by 
 
            working less than one hour per day.   He was to gradually 
 
            work up to an eight hour work day.
 
            
 
                 The evidence submitted does not detail what happened 
 
            for the rest of 1990.  Medical reports dated December 16, 
 
            1991, showed Michael Donohue, M.D., reviewed eight different 
 
            job possibilities at the IBP plant in Storm Lake, Iowa.  
 
            These eight positions include:  Cry-O-Vac operator; membrane 
 
            skinner; skirt trim job; position side for ham chopper job; 
 
            stick hogs; scald tub tendor; tractor operator and mule 
 
            driver; and, instruments mechanic.  Of the jobs listed, Dr. 
 
            Donohue indicated that only two jobs, position side for ham 
 
            chopper and the scald tub tendor job would be appropriate 
 
            for claimant and his physical condition.  However, these 
 
            jobs were not available to the claimant due to his seniority 
 
            status.
 
            
 
                 Claimant then undertook vocational rehabilitation with 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the state of Iowa.  He worked with Renee Barnes, a 
 
            rehabilitationist, and in January of 1992, she expressed an 
 
            opinion that claimant would be limited in job opportunities 
 
            available to him due to his physical condition.  
 
            Specifically, Ms. Barnes opined that claimant would be 
 
            unable to go back to any physical, manual labor type of job 
 
            (Cl. Ex. 27, p. 129).
 
            
 
                 Claimant also underwent a vocational evaluation at the 
 
            request of the defendant employer.  In January of 1992, 
 
            Patricia Conway, a specialist with the Rehabilitation 
 
            Professionals, Inc., reported that she was of the opinion 
 
            that claimant would be able to work in the medium, light and 
 
            sedentary work categories, and suggested that claimant 
 
            explore employment as a laborer in a meat product plant; 
 
            fiber glass laminator; machine operator; and, parts clerk.  
 
            Due to claimant's restrictions of no lifting of more than 50 
 
            pounds, and no work which would require over shoulder height 
 
            work or static positioning of the neck, Ms. Conway estimated 
 
            that claimant had reduced his access to the labor market by 
 
            20 to 30 percent.  Actual loss of earnings were estimated to 
 
            be between 25 and 35 percent (Cl. Ex. 26, pp. 117-124).
 
            
 
                 Currently, claimant works under the following 
 
            restrictions:  permanent impairment ratings based on range 
 
            of motion tests of 10 percent to the whole person and 6 
 
            percent to the whole person; no lifting of more than 50 
 
            pounds; no pushing or pulling of more than 60 pounds on a 
 
            repetitive basis; no work above shoulder level; and, no 
 
            extreme bending of the neck either up or down (Cl. Ex. 25, 
 
            pp. 114-116).
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant has 
 
            sustained a permanent disability.
 
            
 
                 As previously discussed under the facts section of this 
 
            decision, it is clear that claimant has sustained a 
 
            permanent injury.  Not only has he had to undergo surgery to 
 
            repair a herniated disc in his neck, but he also has 
 
            permanent medical restrictions which alter his activities.  
 
            As a result, it is found that claimant has sustained a 
 
            permanent injury due to the accident at IBP.
 
            
 
                 The next issue to be addressed is whether claimant has 
 
            sustained an industrial disability.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the hearing, claimant was 35 years old.  
 
            His work experience is concentrated in the heavy and manual 
 
            labor category.
 
            
 
                 Claimant has displayed a high level of motivation, and 
 
            has sought retraining and schooling in order to obtain a new 
 
            career.  Currently, his efforts have been concentrated in 
 
            computer programming.  Claimant has few, if any, 
 
            transferable skills, and at age 35 is essentially starting 
 
            over.
 
            
 
                 Claimant had an extensive healing period, and although 
 
            there is evidence that he suffered from some preexisting 
 
            conditions of the neck for which he was treated, the 
 
            evidence does not indicate that these conditions were severe 
 
            in nature.
 
            
 
                 The defendant employer, with input from a medical 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            provider, identified two positions at the IBP plant which 
 
            would be suitable for claimant given his medical 
 
            restrictions.  However, he was never offered this work, and 
 
            apparently due to his seniority status and the bid in 
 
            structure at the plant, the jobs would not be available to 
 
            claimant.
 
            
 
                 The worst element of claimant's industrial disability 
 
            is the fact that he is foreclosed from performing heavy work 
 
            and probably some medium work jobs.  Many of his past 
 
            employments involved medium and heavy work.  Therefore, he 
 
            is foreclosed from a rather significant portion of the 
 
            competitive labor market.  Rohrberg v. Griffin Pipe Products 
 
            Co., I Iowa Industrial Report 282 (1984); Michael v. 
 
            Harrison County, Thirty-Fourth Biennial Report of the 
 
            Industrial Commissioner, 218, 220 (App. Decn., January 20, 
 
            1979.
 
            
 
                 There is evidence which states that claimant has no 
 
            earning capacity without additional training, and even with 
 
            training it will take two years for him to regain the same 
 
            earning capacity as he had at the time of the accident.  It 
 
            is clear that claimant is unable to return to work for which 
 
            he suited.
 
            
 
                 After considering all of the factors, it is found that 
 
            claimant has sustained a 35 percent industrial disability.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay unto claimant one hundred 
 
            seventy-five (175) weeks of permanent partial disability 
 
            benefits at the rate of two hundred fifty-one and 25/100 
 
            dollars ($251.25) per week beginning October 22, 1990.
 
            
 
                 That defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly permanency benefits previously paid.
 
            
 
                 That defendant shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr E W Wilcke
 
            Attorney at Law
 
            826 1/2 Lake St
 
            P O Box 455
 
            Spirit Lake IA 51360
 
            
 
            Ms Marie L Welsh
 
            Attorney at Law
 
            P O Box 515
 
            Dept #41
 
            Dakota City NE 68731
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed March 23, 1992
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARK DELING,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 954443
 
            IOWA BEEF PROCESSORS,         :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                 Self-Insured,            :       D E C I S I O N
 
                 Defendant.               :
 
                                          :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant, 35 years of age, injured his cervical neck while 
 
            working for IBP.
 
            Although the employer worked with the physicians to help 
 
            identify two jobs which accommodated claimant's 
 
            restrictions, the jobs were not made available to him.
 
            Medical restrictions included 6-10% functional impairment; 
 
            no lifting of more than 50 pounds; no pushing or pulling of 
 
            more than 60 pounds; no work above shoulder level; and no 
 
            extreme bending of the neck either up or down.
 
            Claimant awarded 35% industrial disability.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
            ____________________________________________________________
 
                                          :
 
            JULIA KAUFFMAN,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 954452
 
            DEPARTMENT OF EMPLOYMENT      :
 
            SERVICES,                     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on June 24, 1992, at 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 June 
 
            29, 1989.  The record in the proceeding consists of the 
 
            testimony of the claimant, Delores Linn, and Karin Strand; 
 
            claimant's exhibits 1 and 2; and defendants' exhibit 1.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged June 29, 1989 injury 
 
            arose out of and in the course of claimant's employment;
 
            
 
                 2.  Whether there is a causal connection as to 
 
            claimant's temporary total disability, healing period or any 
 
            permanent disability;
 
            
 
                 3.  The nature and extent of claimant's permanent 
 
            disability and entitlement to disability benefits;
 
            
 
                 4.  Whether claimant timely filed her petition under 
 
            the provisions of 85.26; and,
 
            
 
                 5.  Claimant's entitlemenmt to 85.27 medical benefits 
 
            (causal connection).
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                               FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is 55 years old and completed the tenth grade.  
 
            She took some courses at Area 11 in January 1979 to August 
 
            1979 so that she could enter the work force.  These appear 
 
            to be more or less refresher courses.  This program was 
 
            sponsored with manpower and she received no degree.
 
            
 
                 Claimant related her employment history from leaving 
 
            high school up until 1958, which encompassed approximately 
 
            seven years.  During this time, she was working as a stocker 
 
            in a drug store, working in the sale of jewelry in a jewelry 
 
            store and working at a department store.
 
            
 
                 Claimant left the employment field to be a full-time 
 
            mother for approximately 21 years, 1958 to 1979.  Claimant 
 
            then entered the work force after the Area 11 schooling and 
 
            began with the State of Iowa on September 14, 1979, with Job 
 
            Service.  Her duties there were originally as a clerk typist 
 
            and required the use of a terminal-like computer.
 
            
 
                 Claimant related the nature of her work and duties up 
 
            until the time that she contends she was injured on June 29, 
 
            1989.  Claimant contends she had good health on September 
 
            14, 1979, and that her attendance record was good.  Claimant 
 
            has continued to work for the State of Iowa since that date.  
 
            Claimant related that in late 1987 her hands and arms 
 
            started hurting and tingling and that she had pain and was 
 
            dropping things.  She sought some medical care at that time 
 
            and had certain tests which included an EMG in January 1988.  
 
            Claimant indicated she told her supervisor in January of 
 
            1988, but she did not initially file a first report.  
 
            Thereafter, her current supervisor, a Mr. Swessinger, told 
 
            her to file a first report after she had told him of her 
 
            problems.  A first report was filed on September 28, 1988.
 
            
 
                 Claimant acknowledged that it is her handwriting in the 
 
            filling out of the first report.  She also indicated she 
 
            never missed work before she had her hand surgery on June 
 
            29, 1989.
 
            
 
                 Claimant related the various medical treatments she had 
 
            and her understanding from some of the doctors as to her 
 
            condition.  She indicated one doctor thought she had 
 
            thoracic outlet syndrome.  Claimant indicated that on 
 
            September 28, 1989, upon her return to Robert F. Breedlove, 
 
            M.D., a surgeon, the doctor told her to stay off work 
 
            indefinitely.  He indicated that he thought she might be 
 
            released after approximately three months.  Claimant 
 
            indicated that she did go back to work around February 3, 
 
            1990, even though she indicated she was still having the 
 
            same problems she is currently having.  There were no 
 
            restrictions but she restricted her activities.
 
            
 
                 Claimant had right hand carpal tunnel surgery in 1985 
 
            and this current surgery was to her left hand.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant related the work she is currently doing for 
 
            defendant employer.  She indicated that she still 
 
            experiences numbness and tingling and pain.  She cannot 
 
            grasp or hold articles very long due to the pain.  She said 
 
            these increase with exertion.  She indicated her left rib 
 
            and neck also hurt.
 
            
 
                 Claimant's attention is called to her answer to 
 
            defendants' interrogatory number 14 (Defendants' Exhibit 1, 
 
            page 45).  In that interrogatory, claimant related that her 
 
            left arm began tingling and burning in December 1987 and 
 
            that she had difficulty twisting her left wrist and her arm 
 
            hurt all the way up to her neck.  Claimant's attention was 
 
            also called to her answer to interrogatory number 18 in 
 
            which she indicated she was off work June 29, 1989 to 
 
            February 9, 1990, which involves 32.429 weeks.  Claimant 
 
            acknowledges that she knew she had a problem in 1987 but 
 
            emphasized she did not know that it was carpal tunnel.
 
            
 
                 Claimant was then referred to defendants' exhibit 1, 
 
            page 47, in which several individuals listed therein 
 
            indicated they knew of claimant's disability as a result of 
 
            injuries which occurred during the course of her employment 
 
            and these several individuals referred to their personal 
 
            observation and statements from the claimant in 1987.
 
            
 
                 Claimant was referred to the comment of Dr. Breedlove 
 
            wherein he indicated on September 22, 1989 that claimant 
 
            indicated her headache, neck pain, bilateral shoulder pain 
 
            and left arm pain/paresthesia all apparently started in 
 
            December of 1987, when claimant was having a barium enema 
 
            (Claimant's Exhibit 1, page 10).  Claimant said she could 
 
            not recall telling the doctor that but indicated her left 
 
            arm pain began in December of 1987 and that she had told the 
 
            doctor that lying on her arm to have the barium enema made 
 
            her arm worse.
 
            
 
                 Claimant did not tell James Scott Billings, D.O., of 
 
            her barium enema incident (Cl. Ex. 1, p. 16) and does not 
 
            recall whether she told Nancy Aquadro, D.O., of the barium 
 
            enema incident (Cl. Ex. 1, p. 20).
 
            
 
                 Delores Linn, from the Division of Labor, State of 
 
            Iowa, has worked for the state for 15 1/2 years.  She knew 
 
            claimant when she was hired and worked with her ten years or 
 
            more as a co-worker.  She described the nature of claimant's 
 
            work, which involved using both hands at the same time 
 
            repetitively.  She indicated she knew claimant was having 
 
            problems and that claimant told her that her hands and 
 
            fingers were going asleep and pain was going up her arm.  
 
            She said she was with claimant when claimant told her 
 
            supervisor, Mr. Swessinger, that her hands were going to 
 
            sleep and that the doctor thought it was carpal tunnel.  
 
            This event would have occurred in or around September 1988.  
 
            She indicated that claimant never did tell her that she 
 
            experienced any left arm problem from lying on her left side 
 
            too long due to a medical examination.
 
            
 
                 Karin Strand testified that she was a co-worker of 
 
            claimant's in January 1988.  She indicated claimant told her 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            she was having problems with her left hand and that there 
 
            was numbness in her arm and tingling in her hand.  She 
 
            indicated claimant said she had not had it too long.  She 
 
            described the repetitive work claimant had to do which 
 
            involved working on a computer, etc.
 
            
 
                 The records of Robert F. Breedlove, M.D., are reflected 
 
            in claimant's exhibit 1, pages 3 through 11.  These records 
 
            reflected on December 22, 1988, the doctor had the 
 
            impression that claimant had a a left carpal tunnel syndrome 
 
            with proximal radiculopathy causing the patient's pain and 
 
            pinching sensation.  He also thought claimant may have a 
 
            posterior interosseous nerve syndrome.  He indicated that 
 
            claimant was contacted later at a more convenient time as to 
 
            arranging any operative procedures.
 
            
 
                 The record shows claimant had subsequent visits with 
 
            the doctor with similar complaints and that on June 29, 
 
            1989, the patient underwent a left carpal tunnel release and 
 
            a right mid-finger, trigger finger release (Cl. Ex. 1, p. 
 
            5).  Dr. Breedlove, who saw claimant after her surgery, 
 
            referred claimant to Scott B. Neff, M.D., for a second 
 
            opinion due to claimant's continued complaints of pain 
 
            radiating into her thumb and index finger.
 
            
 
                 On July 26, 1989, Dr. Neff indicated that claimant 
 
            definitely had symptoms consistent with radial nerve 
 
            entrapment proximally (Cl. Ex. 1, p. 8).  On August 18, 
 
            1989, claimant saw Dr. Neff and was complaining of pain in 
 
            her left forearm over the radial nerve but also was feeling 
 
            worse with more pain in her neck and more pain in the left 
 
            side of her upper back and shoulder (Cl. Ex. 1, p. 9).  The 
 
            doctor was concerned that some of the radicular symptoms may 
 
            be cervical in nature and he recommended a cervical CT 
 
            study.
 
            
 
                 Dr. Breedlove's notes of August 31, 1989, reflect that 
 
            claimant's CT scan of the cervical spine was positive for 
 
            bilateral stenosis at C4-5.  Because of her complaints, the 
 
            doctor referred claimant to Rodney E. Johnson, M.D., for 
 
            evaluation and treatment for her cervical stenosis as he 
 
            felt a good portion of claimant's problems may be cervically 
 
            related (Cl. Ex. 1, p. 9).  On September 22, 1989, claimant 
 
            was seen by Dr. Johnson.  Claimant was complaining of 
 
            headaches, neck pain, bilateral shoulder pain and left arm 
 
            pain-paresthesia.  The doctor's notes indicate claimant told 
 
            him these apparently started in December 1987 when she was 
 
            having a barium enema.  His notes reflect that his 
 
            impression was that claimant had a degenerative disc pain in 
 
            the cervical spine at C5/C6, C4/C5 which was producing some 
 
            of the bilateral shoulder pain, intrascapular pain and 
 
            headaches.  He indicated, however, that her left arm 
 
            symptoms cannot be explained by the CT scan.  He did not 
 
            believe they were radicular in nature.  Dr. Johnson then 
 
            said he was going to have a Dr. Matthews evaluate claimant 
 
            for thoracic outlet syndrome.
 
            
 
                 On September 28, 1989, claimant returned to Dr. 
 
            Breedlove following her evaluation with Dr. Johnson as well 
 
            as Dr. Matthews, the latter who thinks claimant has thoracic 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            outlet syndrome.  Dr. Breedlove indicated that Dr. Johnson 
 
            did not think claimant's problems were related to her 
 
            cervical spine at that point.  Claimant indicated she did 
 
            not want to go back to work for three months and wanted to 
 
            participate in the short-term disability.  She also wanted 
 
            the doctor to indicate her left hand problems related to her 
 
            work.  Dr. Breedlove again indicated that he felt probably 
 
            perhaps 50 percent of claimant's necessity for carpal tunnel 
 
            was work related and that the other does not go along with 
 
            100 percent work related.  He also indicated he would give 
 
            claimant three more months to be off work and at that point 
 
            he would release her to full duty.  Claimant was to return 
 
            in three months for re-evaluation to return to full duty.
 
            
 
                 On February 27, 1990, Dr. Breedlove in a report 
 
            indicated he last saw claimant on September 28, 1989.  He 
 
            indicated her prognosis at that time was excellent and 
 
            indicated her upper extremity symptoms were primarily 
 
            related to her cervical spine and thoracic outlet syndrome 
 
            that was diagnosed by Dr. Matthews in the fall of 1989.  He 
 
            had no objective evidence at that point that claimant was 
 
            having any problems with her carpal tunnel syndrome.  He 
 
            felt claimant had no functional limitations at this point 
 
            with respect to her carpal tunnel release.  He again 
 
            reiterated that he thought only 50 percent of the necessity 
 
            of her carpal tunnel was work related.  He had not evaluated 
 
            claimant since September of 1989 (Cl. Ex. 1, p. 12).
 
            
 
                 In a letter of March 27, 1990 to claimant's attorney, 
 
            he indicated that claimant was off work from June 29, 1989 
 
            until the end of December 1989, and that she was able to 
 
            return to full duty January 1990 (Cl. Ex. 1, p. 12).
 
            
 
                 Claimant's exhibit 1, page 14, reflects Dr. Breedlove's 
 
            opinion that claimant had a 5 percent permanent partial 
 
            impairment of her left upper extremity.  In referring to 
 
            claimant's exhibit 1, page 14, which the doctor again 
 
            reiterated that only 50 percent of claimant's necessity of 
 
            surgery was work related, the undersigned believes that Dr. 
 
            Breedlove is determining 5 percent is related to any work-
 
            related portion and that that figure would not be divided by 
 
            half as he is only referring to surgery in claimant's 
 
            exhibit 1, page 14.  Claimant's exhibits 1, pages 15 and 16, 
 
            reflect, respectively, the opinion of Gaylene Lynch, D.O., 
 
            and James Scott Billings, D.O., of the Medical Services 
 
            Southridge, that claimant has carpal tunnel syndrome which 
 
            has been documented by EMG and that is most likely secondary 
 
            to the use of hands at work.  Nancy Aquadro, D.O., wrote a 
 
            similar or identical letter (Cl. Ex. 1, p. 20).
 
            
 
                 Alexander Matthews, M.D., on September 22, 1989, 
 
            reported that claimant clinically has a rather pronounced 
 
            left thoracic outlet compression syndrome and that she 
 
            should bring her weight down to 140 pounds at which time she 
 
            would become a candidate for surgical decompression of her 
 
            left thoracic outlet.  Claimant weighed 210 pounds as of 
 
            that date.
 
            
 
                 On January 23, 1990, Dr. Matthews opined that "one 
 
            could consider her left thoracic outlet compression syndrome 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            as causally related to the type of work she does as a 
 
            keyboard operator."
 
            
 
                 Claimant's exhibit 1, page 24, reflects an exam of 
 
            claimant on October 2, 1989, by Richard G. Kenney, D.O., who 
 
            indicated claimant's chief complaint at that time was 
 
            discovered in the left knee with weight bearing without 
 
            significant swelling.  There are other reports of Dr. 
 
            Kenney.  Dr. Kenney in a January 4, 1990 report refers to a 
 
            possible thoracic outlet syndrome (Cl. Ex. 1, p. 46).  
 
            Claimant's exhibit 1, page 65, is a report from Irving 
 
            Wolfe, D.O., a neurologist.  In that report Dr. Wolfe 
 
            indicate on August 1, 1990, that a normal EMG nerve 
 
            conduction study of the right upper limb was interpreted as 
 
            normal and there was no EMG evidence to suggest thoracic 
 
            outlet syndrome on either the right or left side (Cl. Ex. 1, 
 
            p. 65).
 
            
 
                 The parties' exhibits are very confusing in that 
 
            claimant only has two exhibits but on claimant's exhibit 1 
 
            there are stickers referring to exhibits all the way up to 
 
            exhibit 41.  The defendants use a similar procedure in which 
 
            they have only one exhibit but yet they have additional 
 
            numbered evidencing exhibits.  This is not only confusing to 
 
            the deputy but is obviously confusing during the hearing.
 
            
 
                 On July 17, 1991, Dr. Wolfe, upon examination, reported 
 
            that claimant had good strength of her hands and arms 
 
            bilaterally, no atrophy noted, motor tone normal throughout 
 
            (Cl. Ex. 1, p. 73).  His impression at that time was 
 
            "multilevel cervical route disease."
 
            
 
                 Douglas S. Reagan, M.D., an orthopedic surgeon, on 
 
            December 30, 1991, reflects in his notes that claimant 
 
            returned for follow-up due to a painful arm.  She had had 
 
            another EMG which demonstrated active carpal tunnel syndrome 
 
            which, if indeed present, would be recurrent.  He indicated 
 
            he talked to claimant about various options including the 
 
            possibility of surgery.  He indicated that she would be 
 
            scheduled for a carpal and ulnar tunnel release, cubital 
 
            tunnel release and radial nerve release with or without 
 
            exploration of the lateral epicondylar area.  He indicated 
 
            he would schedule this at her convenience.  The record 
 
            indicates that no surgery was ever scheduled or done 
 
            pursuant to this report (Cl. ex. 1, p. 79).  Dr. Reagan's 
 
            February 20, 1990, notes reflect claimant still having pain 
 
            and claimant was recommended to see another doctor for 
 
            evaluation of fibromyalgia (Cl. Ex. 1, p. 80).
 
            
 
                 On June 10, 1992, Dr. Wolfe, a neurologist, wrote a 
 
            report represented by defendants' exhibit 1.  Again, this 
 
            exhibit is an example of the confusion of the defendants' 
 
            exhibits in that at the bottom it has exhibit 48 but no 
 
            chronological page number.  This will therefore be 
 
            identified as defendants' exhibit 1(48). The doctor 
 
            indicated that the etiology of the carpal tunnel in regards 
 
            to a work-related component is at best an educated guess.  
 
            The doctor did indicate that since claimant was using a 
 
            computer keyboard as a work requirement, he thought that her 
 
            carpal tunnel syndrome was at least partially work related.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            He did refer to a nerve conduction study that was performed 
 
            on June 26, 1991, at Dr. Reagan's request.  He indicated 
 
            this EMG nerve conduction study did give evidence compatible 
 
            with a mild to moderate right carpal tunnel syndrome.  It 
 
            also suggested a possibility of a cervical radiculopathy.  
 
            The MRI of the cervical spine was performed and did note 
 
            degenerative cervical spondylolysis at C5-6 and C6-7 levels 
 
            and at the C5-6 level both disc protrusion and osteophytes 
 
            were noted projecting in the region of the right neural 
 
            foramina at the C5-C6 level.  This suggested multilevel 
 
            cervical root disease in addition to her carpal tunnel 
 
            syndrome.
 
            
 
                 Defendants contend that if there was an injury it 
 
            occurred in December 1987 and therefore the statute of 
 
            limitations has expired.  The evidence is clear that 
 
            symptoms first appeared and that claimant had a carpal 
 
            tunnel syndrome condition beginning in at least December 
 
            1987.  Claimant missed no work until she had her surgery on 
 
            June 29, 1989.  The undersigned finds that claimant incurred 
 
            a cumulative injury that was cumulative over a period 
 
            beginning in at least December 1987 and culminated under the 
 
            law to an actual cumulative injury when claimant missed work 
 
            due to her surgery.  The undersigned does not believe that 
 
            there was a traumatic event or actual injury in December 
 
            1987.  If defendants are correct on their position, then we 
 
            would be basically eliminating all cumulative injuries as in 
 
            a cumulative injury some symptoms must begin to occur or 
 
            usually do occur and they do not all occur at once.  That is 
 
            where we get the term cumulative.  This agency recognizes 
 
            cumulative injuries.  The undersigned therefore finds that 
 
            claimant did incur a cumulative injury on June 29, 1989, and 
 
            this was the result of claimant's work.  The majority of 
 
            evidence shows that claimant did perform certain work that 
 
            led to a carpal tunnel syndrome.
 
            
 
                 The undersigned having determined the date of injury as 
 
            June 29, 1989, this then disposes of the statute of 
 
            limitations issue as claimant's petition was filed timely.
 
            
 
                 The undersigned therefore finds that claimant incurred 
 
            an injury that arose out of and in the course of her 
 
            employment on June 29, 1989.
 
            
 
                 The next question is the nature of the injury.  
 
            Claimant contends that claimant's injury is not specifically 
 
            to a scheduled member, namely, the left upper extremity but 
 
            in fact to the body as a whole in that there is medical 
 
            evidence that claimant has a thoracic outlet syndrome.  The 
 
            undersigned believes that the claimant has failed to prove 
 
            that there is a causal connection to her possible thoracic 
 
            outlet syndrome and any cumulative injury of June 29, 1989.  
 
            When a doctor refers to the thoracic outlet syndrome, they 
 
            use the word possible or could be in certain instances.  
 
            Possible is insufficient.  There is also evidence and this 
 
            is brought out more clearly by the most recent report of Dr. 
 
            Wolfe on June 10, 1992 (Def. Ex. 1(48)) in which he has 
 
            previously referred to another doctor that claimant has a 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            suggested multilevel cervical root disease in addition to 
 
            her right carpal tunnel syndrome.  The doctor indicated 
 
            there can be multiple etiologies as to claimant's left sided 
 
            thoracic outlet syndrome as suggested by one of the doctors 
 
            that treated and evaluated the claimant.  The undersigned 
 
            finds that the claimant has failed to carry her burden of 
 
            proof to show any causal connection between claimant's 
 
            possible thoracic outlet syndrome and there is no indication 
 
            that her multilevel cervical root disease was caused by or 
 
            materially aggravated by any cumulative injury.  The 
 
            undersigned finds that claimant does not have a body as a 
 
            whole injury and therefore the issue as to whether claimant 
 
            has an industrial disability is now disposed of.
 
            
 
                 There has been only one impairment rating, which is 
 
            represented by a March 25, 1992 report of Dr. Breedlove, an 
 
            orthopedic surgeon (Cl. Ex. 1, p. 14), in which he opined a 
 
            5 percent permanent partial impairment of claimant's left 
 
            upper extremity.  The doctor obviously was giving the 
 
            impairment rating based on claimant's carpal tunnel 
 
            syndrome.  This agency has consistently ruled that, at least 
 
            in an overwhelming number of cases, a carpal tunnel is to 
 
            the hand or wrist and the wrist is part of the hand and 
 
            therefore this impairment would be to claimant's left hand.  
 
            It is not uncommon for doctors to refer to any scheduled 
 
            member on the upper left or right as an upper extremity.  
 
            The undersigned finds that claimant did incur a left carpal 
 
            tunnel syndrome injury on June 29, 1989, and that she 
 
            incurred a 5 percent permanent impairment.  There is some 
 
            medical evidence that possibly there is more than a 
 
            cumulative injury that may be contributing to claimant's 
 
            carpal tunnel.  There is also reference that the doctor 
 
            indicated one-half of claimant's problem with her carpal 
 
            tunnel would be work related.  The undersigned believes and 
 
            finds that the greater weight of evidence would indicate 
 
            that the 5 percent was work related and that that should not 
 
            be divided in half.  The undersigned is surprised that there 
 
            wasn't an impairment rating by Dr. Wolfe who was apparently 
 
            the last person to see claimant as represented by a report 
 
            of June 10, 1992 (Def. Ex. 1(48).
 
            
 
                 The parties are disputing as to claimant's healing 
 
            period.  Claimant contends it was June 29, 1989 through 
 
            February 2, 1990.  Defendants contend that assuming other 
 
            issues are disposed of in claimant's favor, that the healing 
 
            period at most would be June 29, 1989 through October 29, 
 
            1989.  The undersigned finds that the best evidence that 
 
            would help determine claimant's healing period is claimant's 
 
            exhibit 1, page 11, in which Dr. Breedlove indicated that 
 
            approximately three months from September 28, 1989, claimant 
 
            was to be re-evaluated and returned to full duty.   Dr. 
 
            Breedlove said claimant could return to full duty on the 
 
            first of January 1990.  This would indicate three months 
 
            would end on December 28, 1989.  The undersigned therefore 
 
            finds that claimant's healing period is from June 29, 1989 
 
            through January 1, 1990, amounting to 26.714 weeks.
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
                 Regarding the rate, the parties agree that if the 
 
            undersigned found June 29, 1989 as the injury date, then the 
 
            rate would be $228.66.
 
            
 
                 The defendants shall pay all of claimant's medical 
 
            bills incurred as a result of this cumulative June 29, 1989 
 
            injury, including her surgery.  It would also appear that 
 
            claimant may need additional surgery, as represented by the 
 
            June 19, 1992 report of Dr. Wolfe.  If such additional 
 
            carpal tunnel surgery is needed, the defendants shall also 
 
            pay for that.  There is possibly a dispute as to what are 
 
            claimant's medical bills or at least those unpaid as there 
 
            may have been a non-workers' compensation insurance carrier 
 
            that has paid some of claimant's medical bills.  The 
 
            undersigned is not getting involved in the dispute between 
 
            insurance carriers or group and workers' compensation 
 
            coverage except to note that in no instances is the claimant 
 
            to be required to pay any of her medical bills resulting 
 
            from this injury.  Therefore, if there is subrogation or any 
 
            other action taken by any non-workers' compensation group 
 
            health carrier asking for reimbursement from the claimant 
 
            for a bill that should have been paid under workers' 
 
            compensation, defendants are responsible for those bills.  
 
            Claimant is to be harmless from any liability of any bills 
 
            incurred as a result of this injury.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on June 29, 
 
            1989, which arose out of and in the course of her 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 
 
            Iowa 352, 154 N.W.2d 128.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of June 29, 
 
            1989, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his 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).
 
            
 
                 Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability.  Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); 
 
            Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
            Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 
 
            1983).
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 It is not necessary that claimant prove his disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that a disability developed gradually or 
 
            progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever court also held that the date of injury 
 
            in a gradual injury case is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever the injury 
 
            date coincides with the time claimant was finally compelled 
 
            to give up his job.  This date was then utilized in 
 
            determining rate and the timeliness of the claimant's claim 
 
            under Iowa Code section 85.26 and notice under Iowa Code 
 
            section 85.23.
 
            
 
                 It is further concluded that:
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 Claimant incurred a cumulative injury that arose out of 
 
            and in the course of her employment on June 29, 1989, and 
 
            that said injury caused claimant to incur a left carpal 
 
            tunnel syndrome which resulted in a permanent impairment to 
 
            claimant of at least 5 percent to her left hand.
 
            
 
                 Claimant's work-related June 29, 1989 injury resulted 
 
            in claimant incurring a healing period beginning June 29, 
 
            1989 through January 1, 1990, amounting to 26.714 weeks.
 
            
 
                 All benefits are to be paid at the rate of $228.66.
 
            
 
                 Claimant's petition was timely filed within the two 
 
            year statute of limitations.
 
            
 
                 Claimant did not incur a body as a whole injury or an 
 
            industrial disability.
 
            
 
                 Defendants are to pay all of claimant's medical bills 
 
            incurred as a result of her cumulative work injury on June 
 
            29, 1989, and to hold claimant harmless of any medical bills 
 
            that are incurred as a result of said injury.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay to claimant healing period 
 
            benefits at the rate of two hundred twenty-eight and 66/100 
 
            dollars ($228.66) for the period beginning June 29, 1989 
 
            through January 1, 1990, which amounts to twenty-six point 
 
            seven one four (26.714) weeks.
 
            
 
                 That defendants shall pay unto claimant nine point five 
 
            (9.5) (5% of 190) weeks, of permanent partial disability 
 
            benefits at the rate of two hundred twenty-eight and 66/100 
 
            dollars ($228.66).
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have not 
 
            previously paid any healing period or permanent partial 
 
            disability benefits to the claimant.
 
            
 
                 Defendants shall pay all of claimant's medical bills 
 
            incurred as a result of this injury.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr Robert W Pratt
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines IA 50311
 
            
 
            Mr James F. Christenson
 
            Assistant Attorney General
 
            Tort Claims
 
            Hoover State Office Building
 
            Des Moines IA 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-1803; 5-1803.1; 5-2209
 
                                             5-2601.10; 5-1100; 5-1108
 
                                             5-1802; 5-2503
 
                                             Filed July 10, 1992
 
                                             Bernard J. O'Malley
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JULIA KAUFFMAN,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 954452
 
            DEPARTMENT OF EMPLOYMENT      :
 
            SERVICES,                     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803; 5-1803.1; 5-2209; 5-2601.10
 
            Claimant awarded 5% permanent partial disability benefits 
 
            for a left carpal tunnel syndrome cumulative work injury.  
 
            Injury was a scheduled member injury and not an industrial 
 
            disability  injury.
 
            
 
            5-1100; 5-1108
 
            Found claimant's injury arose out of and in the course of 
 
            claimant's employment and caused claimant's left carpal 
 
            tunnel syndrome and ultimate permanent impairment.
 
            Found claimant's petition was timely filed.  Time ran when 
 
            cumulative injury ripened, i.e., first missed work and not 
 
            when her first symptoms appeared.
 
            
 
            5-1802; 5-2503
 
            Claimant awarded healing period and medical benefits.