1805 1402.30 2206 2204
 
                                             Filed October 13, 1994
 
                                             Michael G. Trier
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            REBECCA FRYE, Surviving  
 
            Spouse of ROBERT FRYE,   
 
            Deceased, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 961728
 
            SMITH-DOYLE CONTRACTORS, 
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            USF & G,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            1805 1402.30 2206 2204
 
            
 
            Decedent sustained a back injury, developed depression and 
 
            committed suicide.  It was determined that the lack of 
 
            recovery from the back injury aggravated a preexisting 
 
            tendency toward developing depression which in turn caused 
 
            the decedent to commit suicide.  Claimant had been a 
 
            physically healthy, robust individual whose functional 
 
            capacity evaluation showed him to be at less than a tenth 
 
            percentile following the injury.  After surgery and more 
 
            than two years of therapy and other treatment he had no hope 
 
            for recovery.  His depression was not diagnosed prior to his 
 
            death and was not treated.  The death held compensable, 
 
            death benefits awarded.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            REBECCA FRYE, Surviving       :
 
            Spouse of ROBERT FRYE,        :
 
            Deceased,                     :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 961728
 
            SMITH-DOYLE CONTRACTORS,      :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            USF & G,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding wherein Rebecca Frye, surviving 
 
            spouse of Robert Frye, seeks payment of permanent partial 
 
            disability compensation running from January 22, 1993 to May 
 
            3, 1993, the date of Robert's death and also seeks death 
 
            benefits pursuant to sections 85.28 and 85.31.  The 
 
            principle issue in the case is whether Robert Frye's injury 
 
            of September 24, 1990 was a proximate cause of his 
 
            self-inflicted death that occurred on May 3, 1993.  
 
            
 
                 The case was heard at Des Moines, Iowa on June 20, 
 
            1994.  The evidence consists of claimant's exhibits 1 
 
            through 11 and defendants' exhibits A through L and N 
 
            through Z.  The record also contains testimony from Rebecca 
 
            Frye, Melba Jean Frye and James Gallagher, M.D.  
 
            
 
                                FINDINGS OF FACT
 
            
 
                 Robert Frye was 31 years of age when he committed 
 
            suicide by jumping from a bridge into the flood-swollen Des 
 
            Moines River and drowned on May 3, 1993.  Robert is survived 
 
            by his wife Rebecca and two minor children.  
 
            
 
                 Up to the point of his death Robert Frye had led a 
 
            lamentable life.  He had a long-standing history of alcohol 
 
            and drug abuse.  His history of employment is sporadic.  In 
 
            early 1982, at the age of 19, he was sentenced to 25 years 
 
            in prison for first degree robbery.  Robert and two 
 
            accomplices had robbed and severely beaten two hitchhikers.  
 
            Robert had been drinking at the time of the offense.  
 
            Personality testing performed at the time of his 
 
            incarceration suggested that Robert was depressed, unhappy, 
 

 
            
 
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            worrisome and socially introverted.  (Exhibit B)  Robert was 
 
            granted parole in June 1985.  The conditions of his parole 
 
            included that he abstain from all use of alcoholic beverages 
 
            and illegal drugs.  (Ex. F)  Approximately three years later 
 
            Robert was arrested for operating a motor vehicle while 
 
            intoxicated.  Because he was employed, he was placed into an 
 
            intensive outpatient treatment program rather than having 
 
            his parole revoked.  A psychological evaluation which was 
 
            administered as part of the program suggested that Robert 
 
            had serious psychological dysfunction.  (Ex. J)  Robert 
 
            graduated from the program but two days later was again 
 
            arrested for operating a motor vehicle while intoxicated.  
 
            His parole was then revoked.  (Ex. I)  Robert was again 
 
            released on parole in May 1989.  (Ex. L)  
 
            
 
                 After his release in 1989 Robert entered a treatment 
 
            program through the Southern Iowa Economic Development 
 
            Association.  At the time of intake Robert exhibited all but 
 
            one of the substance abuse symptoms shown in the report 
 
            letter.  The only symptom which he did not exhibit at that 
 
            time was physical problems.  (Ex. N)  In July 1989 the 
 
            counselor reported that Robert's difficulty in finding work 
 
            was causing a lot of problems with depression and that 
 
            Robert had a history of allowing his depression to result in 
 
            a relapse of his substance abuse problem.  (Ex. P)  Robert 
 
            did experience a relapse.  (Ex. R)  By March 1990 Robert was 
 
            taking Antabuse.  His depression symptoms apparently were 
 
            continuing.  (Ex. T)  In June 1990 Robert wrote to his 
 
            parole officer expressing concern over the stress which he 
 
            felt as a result of being on parole and requested that he be 
 
            discharged from parole.  (Ex. V)  At page 2 of exhibit A 
 
            paragraph "T" indicates that Robert was discharged from 
 
            parole in April 1991.  
 
            
 
                 The record of this case shows Robert to have injured 
 
            his back on three prior occasions.  Nothing in the evidence 
 
            indicates that any of those injuries were anything other 
 
            than minor injuries from which he made a prompt, complete 
 
            recovery.  (Exs. G, H and Q) 
 
            
 
                 Robert sustained the injury in this case on September 
 
            24, 1990, when stepping out of a trailer.  He was diagnosed 
 
            as having herniated lumbar discs at the L4-5 and L5-S1 
 
            levels of his spine.  In January 1991 Donald D. Berg, M.D., 
 
            an orthopedic surgeon performed surgery upon Robert's back.  
 
            Robert experienced a poor result from the surgery.  He had 
 
            continuing residual complaints of pain and exhibited back 
 
            spasms on a number of occasions.  He underwent several 
 
            series of treatments consisting of prescription medication 
 
            and physical therapy.  He appeared to experience some 
 
            benefit from treatment but the benefit appeared to be 
 
            temporary.  By April 1991 Dr. Berg was recommending that 
 
            Robert enter vocational rehabilitation.  (Ex. 1, p. 7)  In 
 
            June 1991 Dr. Berg reported that Robert would have a 
 
            25-pound lifting restriction and a 5 percent permanent 
 
            physical impairment.  He again recommended vocational 
 
            rehabilitation.  (Ex. 1, p. 8)  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
                 Robert sought a second opinion on his condition from S. 
 
            Randy Winston, M.D., a neurosurgeon.  Dr. Winston found 
 
            claimant to have an essentially normal neurological 
 
            examination.  He felt that Robert suffered from mechanical 
 
            low back pain secondary to the injury, its residuals and the 
 
            surgery which had been performed.  Dr. Winston recommended 
 
            that a functional capacity evaluation be performed.  (Ex. 4)
 
            
 
                 Robert was administered a functional capacity 
 
            evaluation on September 11, 1991.  The report shows claimant 
 
            to have made a bona fide effort throughout the evaluation 
 
            and the results of the evaluation were considered to be 
 
            valid.  The results showed Robert to be functioning below 
 
            the tenth percentile in many of the functions evaluated.  
 
            One exception was his grip strength performances which were 
 
            above average.  The evaluation indicated that Robert would 
 
            be limited to sedentary work with a lifting limit of 10 
 
            pounds.  (Ex. 3)
 
            
 
                 Robert was also evaluated by Marc E. Hines, M.D., in 
 
            September and October 1991.  Dr. Hines found Robert to have 
 
            a 12 percent permanent impairment of the whole person.  Dr. 
 
            Hines concurred with the functional capacity evaluation 
 
            report.  He stated that Robert was 100 percent disabled from 
 
            his previous employment and that further employability would 
 
            be limited to sedentary jobs.  (Ex. 7)  
 
            
 
                 In October 1992 Robert was evaluated by L.G. Hikes, 
 
            M.D.  Dr. Hikes also found Robert to have residual back pain 
 
            which was fairly severe and limiting in nature.  (Ex. 8)  
 
            
 
                 At the time of hearing exhibit 11 was received into 
 
            evidence.  The fifth page of that exhibit is a drowning 
 
            investigation report from the Iowa Department of Natural 
 
            Resources investing officer.  In the left column it is noted 
 
            that the word "yes" is checked in the blank which carries 
 
            the words "alcohol related."  The preceding blank contains 
 
            the words "BAC test" and the word "yes" is checked.  "BAC 
 
            test" is an abbreviation commonly used for the term "blood 
 
            alcohol test."  The undersigned has been unable to find the 
 
            results of any blood alcohol test in the record of this 
 
            case.  There is no indication in any of the records other 
 
            than that found at page 5 of exhibit 11 that a blood alcohol 
 
            test was requested or conducted.  There is no indication in 
 
            the record of this case other than at page 5 of exhibit 11 
 
            that alcohol was involved in Robert's death.  According to 
 
            Rebecca's testimony given at hearing Robert had dropped her 
 
            off at work in Ablia at approximately 9:00 a.m. on the day 
 
            of his death.  She reported being told that he had driven 
 
            out of Albia going toward Eddyville.  Robert was seen 
 
            jumping into the river at approximately 9:34 a.m. (Exs. 9 
 
            and 11)  The inventory of the vehicle which Robert had 
 
            driven to the bridge showed no containers for alcoholic 
 
            beverages or any indication of illegal drug use.  (Ex. 11, 
 
            p. 12)  When initially notified of Robert's death Rebecca 
 
            had reported to the authorities that Robert had been 
 
            despondent recently.  (Ex. 11, pp. 4 and 6)  At page 6 of 
 
            exhibit 11 it is noted that he had been despondent over a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            back problem.  At page 2 of exhibit 9 the medical examiner 
 
            indicated that Robert had apparently became disabled about 
 
            two years earlier when he hurt his back and had been 
 
            depressed since then but was not getting any professional 
 
            help.  (Ex. 9, p. 2)  The reports also indicate that Robert 
 
            was taking Antabuse and had not used any drugs or alcohol 
 
            for approximately a year.  It is found that while Robert had 
 
            a history of alcohol and drug abuse and that such may have 
 
            played a part in his overall psychological condition he was 
 
            not under the influence of alcohol or drugs at the time he 
 
            committed suicide and probably had not used or abused 
 
            alcohol or drugs within the several months preceding his 
 
            death.  The records show Robert to have received a 
 
            prescription for Tylenol #3, a form of Tylenol with codeine, 
 
            in 1992.  His most recent prescription before his death was 
 
            Flexoril.  (Ex. X)  It is extremity unlikely that Robert was 
 
            using Tylenol with codeine at the time of his death.
 
            
 
                 The most income Robert had ever received in his 
 
            lifetime was the workers' compensation benefits which he 
 
            received as a result of the injury in this case.  It appears 
 
            as though he had never earned more than a few hundred 
 
            dollars in any year up to that time.  Robert had been 
 
            incarcerated during nearly half the time since he had 
 
            finished high school.  Since he was a convicted felon, it is 
 
            likely that his employment opportunities were limited.  The 
 
            record indicates that Robert had always enjoyed good health 
 
            and had no physical limitations or restrictions prior to the 
 
            injury which is the subject of this case.  He was quite 
 
            overweight and there is reason to suspect that his 
 
            overweight condition may have been detrimental to his 
 
            recovery from the injury which is the subject of this case. 
 
            
 
                 According to Rebecca, Robert had made statements 
 
            following the injury which indicated that he felt that he 
 
            was a burden on her.  She testified that those statements 
 
            increased after his workers' compensation benefits were 
 
            terminated in early 1993.  During the months preceding his 
 
            death Robert visited his close family and apologized for the 
 
            misconduct in which he had engaged earlier in his life.  
 
            There is an indication that he had his father perform some 
 
            needed repairs around his home within the weeks prior to his 
 
            death.  Robert appeared to be in relatively good spirits on 
 
            the morning of his death.
 
            
 
                 Each of the parties in this case employed a 
 
            psychiatrist to perform an evaluation for purposes of 
 
            expressing an opinion in this litigation.  Claimant chose 
 
            Paul H. Rose, D.O., of Burlington, Iowa.  Defendants chose 
 
            James Gallagher, M.D., of Des Moines, Iowa.  Both physicians 
 
            seem to agree that Robert committed suicide as a result of 
 
            depression.  Dr. Rose expressed the opinion that Robert's 
 
            back injury caused his depression.  (Ex. 10)  Dr. 
 
            Gallagher's opinions were (1) Robert's depression resulted 
 
            from a number of causes rather than from any one specific 
 
            event; (2) Robert had a tendency toward developing 
 
            depression which existed prior to the time of the back 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            injury; (3) the back injury was an aggravating factor but 
 
            not necessarily a causal factor; (4) it was possible that a 
 
            connection existed between the back injury and the 
 
            depression; (5) it cannot be stated with any reasonable 
 
            degree of medical certainty that the back injury was a 
 
            probable cause of Robert's depression and resultant suicide.  
 
            (Ex. A, p. 3; transcript pp. 109-112, 117-122)  
 
            
 
                 It is found that Dr. Gallagher is correct in that 
 
            Robert clearly was psychologically dysfunctional with a 
 
            tendency toward depression prior to the time this back 
 
            injury occurred.  The report from Dr. Rose is devoid of any 
 
            mention of Robert's psychological problems prior to the time 
 
            of the back injury.  It is also found that the back injury, 
 
            more importantly the lack of recovery from the back injury, 
 
            was a substantial factor in bringing about Robert's suicide.  
 
            Robert was prone to developing depression.  He had always 
 
            previously had the physical ability to do whatever he chose.  
 
            The lack of recovery from this injury caused him to see 
 
            himself as a cripple.  He was no longer able to hunt, work 
 
            on cars or engage in the other activities which he had 
 
            previously enjoyed.  He was not able to perform the tasks 
 
            required for any type of employment in which he had 
 
            previously engaged.  Having viewed the record as a whole, 
 
            the undersigned does not feel that Robert's main concern was 
 
            supporting his family.  He had never done so in the past.  
 
            His greatest concern was the simple loss of his physical 
 
            capacity to do the things that he wanted to do.  In his 
 
            treatment notes from SEIDA it was noted that he felt 
 
            depressed when he had been unable to find work.  It would 
 
            certainly be reasonable to expect that he would be depressed 
 
            if he were unable to perform any type of work which he knew 
 
            how to perform.  It is likely that Robert's alcohol and drug 
 
            abuse problems played a part in shaping his psychological 
 
            state.  Nevertheless, despite all the preexisting conditions 
 
            it was not until after more than two years of unsuccessful 
 
            medical care and treatment and the termination of his 
 
            workers' compensation income that Robert Frye resorted to 
 
            suicide.  Robert Frye knew of no suitable options.  He was 
 
            at a state of despair.  He had no hope of regaining anything 
 
            resembling his preinjury state of physical good health.  He 
 
            chose to not live with the pain and disability that the 
 
            injury had inflicted upon him.  
 
            
 
                 Dr. Gallagher spoke of having seen a lot of patients 
 
            with pain and depression but that none of them had committed 
 
            suicide.  (tr. p. 121)  This is likely true because 
 
            depression is often a treatable condition.  If successfully 
 
            treated, individuals with depression do not go on to commit 
 
            suicide.  The patients who Dr. Gallagher saw were, in all 
 
            likelihood, receiving adequate treatment for their 
 
            depression.  Robert Frye was not being treated for his 
 
            depression.  It was allowed to run unchecked.  
 
            
 
                 Most individuals with depression will not resort to 
 
            suicide regardless of whether or not it is treated, some 
 
            however do.  It is also remarkable that the only indications 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            of Robert Frye having problems with depression appear at 
 
            times when he would have been in very stressful situations.  
 
            One was when he was initially incarcerated for robbery.  
 
            Another was when he was facing possible revocation of his 
 
            parole at the time of the first drunken driving conviction.  
 
            It is certainly possible that there may have been other 
 
            times throughout Robert's life when he drifted in and out of 
 
            depressions.  None of those caused him to consider or 
 
            attempt suicide until he was disabled by the back injury 
 
            which is the subject of this case.  Robert Frye apparently 
 
            felt that his life was not worth living if he had to live it 
 
            in his disabled state.  He felt that he was a burden on his 
 
            wife and children and that they would be better off without 
 
            him.  In view of his well documented abnormal psychological 
 
            makeup, it is not surprising that he would see suicide as 
 
            his only option.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 First and foremost, Rebecca Frye seeks permanent 
 
            partial disability compensation from January 22, 1993 
 
            through the date of Robert's death, May 3, 1993, a span of 
 
            14 4/7 weeks.  This requires a determination of the extent 
 
            of Robert's permanent disability which resulted from the 
 
            injury.  The parties stipulated that all benefits payable 
 
            prior to January 22, 1993 have been paid and that those 
 
            benefits previously paid are equivalent to approximately 15 
 
            percent permanent partial disability.  The additional amount 
 
            requested by Rebecca amounts to a little less than a total 
 
            of 19 percent permanent partial disability.  In other words, 
 
            if Robert's permanent partial disability was greater than 20 
 
            percent, Rebecca, as his survivor, is entitled to receive 
 
            the benefits payable from January 22 through May 3, 1993.  
 
            Tibbs v. Denmark Light and Telehpone Corp., 230 Iowa 1173, 
 
            300 N.W. 328 (1941); Dille v. Plainview Coal Co., 217 Iowa 
 
            827, 250 N.W.607 (1934)
 
            
 
                 Industrial disability or loss of earning capacity is a 
 
            concept that is quite similar to impairment of earning 
 
            capacity, an element of damage in a tort case.  Impairment 
 
            of physical capacity creates an inference of lessened 
 
            earning capacity.  The basic element to be determined, 
 
            however, is the reduction in value of the general earning 
 
            capacity of the person, rather than the loss of wages or 
 
            earnings in a specific occupation.  Post-injury earnings 
 
            create a presumption of earning capacity.  The earnings are 
 
            not synonymous with earning capacity and the presumption may 
 
            be rebutted by evidence showing the earnings to be an 
 
            unreliable indicator.  Bearce v. FMC Corp., 465 N.W.2d 531 
 
            (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 
 
            1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
            Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 
 
            (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218 (1979); 2 Larson Workmen's Compensation Law, sections 
 
            57.21 and 57.31.
 
            
 
                 Since claimant has an impairment to the body as a 
 

 
            
 
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            whole, an industrial disability has been sustained.  
 
            Industrial disability was defined in Diederich v. Tri-City 
 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
 
            is therefore plain that the legislature intended the term 
 
            'disability' to mean 'industrial disability' or 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 man."
 
            
 
                 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, 
 
            experience, motivation, loss of earnings, severity and situs 
 
            of the injury, work restrictions, inability to engage in 
 
            employment for which the employee is fitted and the 
 
            employer's offer of work or failure to so offer.  Olson v. 
 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
            (1961).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 It is obvious and apparent that Robert Frye's extent of 
 
            permanent disability was greater than 20 percent.  He was 
 
            totally foreclosed from returning to anything other than 
 
            sedentary work.  Prior to that time he had been capable of 
 
            heavy employment.  There is nothing in the record to 
 
            indicate that Robert was skilled for sedentary work or adept 
 
            at academic pursuits.  The contrary would be expected.  
 
            There is absolutely no doubt whatsoever that his degree of 
 
            disability exceeded 20 percent.  In fact, there is evidence 
 
            in this case which would support a contention that he was 
 
            permanently totally disabled.  
 
            
 
                 Rebecca seeks death benefits under section 85.28 and 
 
            85.31.  In order to receive a recovery, it is necessary that 
 
            she prove by a preponderance of the evidence that it is 
 
            probable that there is a chain of causation directly linking 
 
            the back injury to Robert's suicide.  Kostelac v. Feldman's, 
 
            Inc., 497 N.W.2d 853 (Iowa 1993)  The undersigned, having 
 
            heard the Kostelac case is fully familiar with the evidence 
 
            that was presented at the hearing.  The undersigned was 
 
            convinced beyond any shadow of a doubt that the financial 
 
            failure of the business which the decedent had managed 
 
            brought about his depression and suicide.  The decedent in 
 
            that case was a victim of a failing local economy and none 
 
            of his efforts would save the business.  There was no 
 
            evidence in the record of that case of the decedent ever 
 
            having depressive symptoms other than possibly in the remote 
 
            past in connection with the failure of another business 
 
            which he had managed.  Two psychiatrists expressed opinions 
 
            causally connecting the business failure with the depression 
 
            and suicide.  Only one, Michael Taylor, M.D., declined to 
 

 
            
 
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            join in that opinion.  He, like Dr. Gallagher in this case, 
 
            was of the opinion that a causal connection was possible.  
 
            He simply stated that he did not have enough information to 
 
            form an opinion that a causal connection existed.  When 
 
            appealed to the industrial commissioner, the undersigned's 
 
            finding of fact was reversed and the appellate findings were 
 
            upheld on judicial review through the operation of the 
 
            substantial evidence rule.  In the commissioner's appeal 
 
            decision note was made of the fact that Dr. Taylor had more 
 
            information available to him then had the other 
 
            psychiatrists.  That fact was used as a reason for accepting 
 
            his opinion over that of the other two psychiatrists.  Using 
 
            such as a distinction is prejudicial to a claimant in a 
 
            workers' compensation proceeding.  The expert employed by 
 
            the defense always has more information available to 
 
            consider than does the expert or experts employed by the 
 
            claimant.  The case preparation and completion deadlines 
 
            found in the hearing assignment order used by this agency 
 
            requires that the claimant must present all of its evidence 
 
            to the defense.  The defense experts are then able to 
 
            consider the opinions of the claimant's experts and develop 
 
            replies to refute the statements and opinions of the 
 
            claimant's experts.  Claimant's experts are not given any 
 
            opportunity to reply.  In Kostelac, in this case and nearly 
 
            all cases before this agency, the defense expert always has 
 
            more information because the defense expert has the 
 
            assessment of the case made by the claimant's expert and 
 
            gets to speak last.  Simply stated, it is not a valid reason 
 
            for choosing one expert over the other, even though it has 
 
            been used by the industrial commissioner in appeal 
 
            decisions, because the hearing assignment order determines 
 
            which side will speak last.
 
            
 
                 Part of the dispute in these cases may arise from the 
 
            definition of the word "cause" as it is used by the medical 
 
            profession and as it is used in the legal arena.  The 
 
            medical profession often looks to the underlying cause.  In 
 
            litigation the triggering or precipitating cause controls 
 
            whether or not a recovery will be awarded.  That distinction 
 
            is perhaps best illustrated by heart attack cases.  It is 
 
            quite common for physicians to attribute heart attacks to 
 
            underlying coronary artery disease and they are correct when 
 
            they do so.  Individuals without coronary artery disease 
 
            seldom have heart attacks.  The law allows recovery, 
 
            however, when unusual stress or exertion superimposed upon 
 
            the underlying coronary artery disease causes the heart 
 
            attack to occur at a time when it probably would not have 
 
            occurred absent the stress or exertion.  Sondag v. Ferris 
 
            Hardware, 220 N.W. 2d 903 (Iowa 1974)
 
            
 
                 A similar situation exists in cases where individuals 
 
            develop depression.  Most individuals will not develop major 
 
            depression regardless what happens to them in the way of 
 
            lifetime events or stresses.  Those who do develop a major 
 
            depressive disorder likely have a predisposing tendency for 
 
            developing depression.  In many cases those who are 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            diagnosed with depression have had one or more prior 
 
            episodes at which they were thought to be depressed or were 
 
            even possibly diagnosed as being depressed.  The tendency to 
 
            develop depression or a low grade, ongoing depression which 
 
            exists prior to the time an injury occurs is a preexisting 
 
            condition.  The law regarding aggravation of a preexisting 
 
            condition is well settled.
 
            
 
                 Aggravation of a preexisting condition is one manner of 
 
            sustaining a compensable injury.  While a claimant is not 
 
            entitled to compensation for the results of a preexisting 
 
            injury or disease, its mere existence at the time of a 
 
            subsequent injury is not a defense.  Rose v. John Deere 
 
            Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956).  If the 
 
            claimant had a preexisting condition or disability that is 
 
            materially aggravated, accelerated, worsened or lighted up 
 
            so that it results in disability, claimant is entitled to 
 
            recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
            N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 
 
            253 Iowa 369, 112 N.W.2d 299 (1961).
 
            
 
                 In this case it is concluded that Robert Frye had a 
 
            preexisting tendency for developing depression and may even 
 
            have had a low grade, ongoing depression of the type 
 
            referred to by Dr. Gallagher as a dysthymic disorder (t.p. 
 
            117) prior to the time that the injury in this case 
 
            occurred.  That condition was a preexisting condition which 
 
            was then aggravated by Robert's lack of recovery from the 
 
            back injury.  That lack of recovery caused Robert's prior or 
 
            preexisting condition to mushroom into a full blown, 
 
            untreated depressive disorder that was so severe as to cause 
 
            him to commit suicide.  It is concluded that a direct chain 
 
            of causation exits in this case between the back injury, the 
 
            lack of recovery from the injury and the aggravation of the 
 
            preexisting psychological condition causing it to become a 
 
            full blown depression which in turn led Robert Frye to 
 
            commit suicide.  Rebecca Frye and the children of Robert and 
 
            Rebecca Frye are therefore entitled to receive weekly 
 
            compensation benefits pursuant to section 85.31 payable 
 
            commencing May 3, 1993.
 
            
 
                 Defendants are also responsible for payment of burial 
 
            expenses for Robert Frye pursuant to section 85.28 in an 
 
            amount not to exceed $5000.
 
            
 
                 Defendants are further responsible for payment of $4000 
 
            to the Second Injury Fund of Iowa pursuant to section 85.65.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Rebecca 
 
            Frye weekly compensation at the rate of three hundred two 
 
            and 51/100 dollars ($302.51) per week payable commencing 
 
            January 22, 1993.  The first fourteen and three-sevenths (14 
 
            3/7) weeks thereof are to be characterized as permanent 
 
            partial disability benefits under section 85.34(2)(u).  The 
 
            subsequent weekly compensation benefits payable commencing 
 
            May 3, 1993, shall be characterized as death benefits in 
 
            accordance with section 85.31.
 
            
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
                 It is further ordered that all past due accrued amounts 
 
            be paid in a lump sum together with interest pursuant to 
 
            section 85.30.
 
            
 
                 It is further ordered that defendants pay the burial 
 
            expenses of Robert Frye in an amount not to exceed five 
 
            thousand dollars ($5000).
 
            
 
                 It is further ordered that defendants pay the sum of 
 
            four thousand dollars ($4000) to the Second Injury Fund of 
 
            Iowa.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
                 Signed and filed this __________ day of October, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Harold Heslinga
 
            Mr. Jeffrey Smith
 
            Attorneys at Law
 
            118 N Market St.
 
            Oskaloosa, Iowa  52577
 
            
 
            Ms. Iris Post
 
            Mr. Ken Winjum
 
            Attorneys at Law
 
            2222 Grand Ave
 
            PO Box 10434
 
            Des Moines, Iowa  50306
 
            
 
                 
 
            
 
 
         
 
      
 
          
 
          
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         ROGER GOETZINGER,   
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                          File No. 961927
 
         PAISLEY TRUCKING, INC.,  
 
                                           A P P E A L
 
              Employer, 
 
                                          D E C I S I O N
 
         and       
 
                   
 
         CONTINENTAL WESTERN INS. CO., 
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         January 8, 1993 is affirmed and is adopted as the final agency 
 
         action in this case. 
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of July, 1993.
 
         
 
         
 
         
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry W. Dahl, III
 
         Attorney at Law
 
         974 73rd Street  Suite 16
 
         Des Moines, Iowa  50312
 
         
 
         Mr. E. J. Giovannetti
 
         Attorney at Law
 
         Terrace Center  STE 111
 
         2700 Grand
 
         Des Moines, Iowa  50312
 
         
 
 
         
 
 
 
          
 
                     
 
 
 
 
 
                                       5-1803; 2907; 3800; 4000.2;
 
                                       Filed July 29, 1993
 
                                       BYRON K. ORTON
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         ROGER GOETZINGER,   
 
                   
 
              Claimant, 
 
                   
 
         vs.       
 
                                             File No. 961927
 
         PAISLEY TRUCKING, INC.,  
 
                                               A P P E A L
 
              Employer, 
 
                                             D E C I S I O N
 
         and       
 
                   
 
         CONTINENTAL WESTERN INS. CO., 
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         
 
         
 
         5-1803
 
         Assessment of treating neurologist accepted and finding a 7 
 
         percent permanent partial disability of claimant's right leg.
 
         
 
         
 
         3800
 
         Defendants asserted that interest was payable only when the delay 
 
         resulted from unreasonable conduct.  That argument was rejected.  
 
         Interest awarded on all healing period and permanent partial 
 
         disability in accordance with the statute.  In this case, the 
 
         healing period was interrupted by an approximate eight-month 
 
         return to work.  All the permanent partial disability was held 
 
         payable commencing at the end of the healing period (ppd was 15.4 
 
         wks) and interest accrued accordingly, even though the existence 
 
         and extent of permanency was not determined until during 
 
         treatment conducted during the second healing period.  
 
         
 
         
 
         4000.2
 
         Defendants assessed with a 20-week penalty pursuant to 86.13 
 
         where they failed to pay healing period even though all 
 
         physicians agreed the condition was work related and where they 
 
         failed to pay permanent partial disability.  One physician who 
 
         had originally treated the knee injury and performed meniscectomy 
 
         surgery had opined that there was no permanency.  It was held 
 

 
         
 
 
 
 
 
 
 
                          
 
                             
 
 
 
         unreasonable to rely upon that where a subsequent peroneal nerve 
 
         injury was identified and that original surgeons rating of no 
 
         impairment was overwhelmed by the AMA Guides and three other 
 
         evaluators.  Claimant's full weekly benefits entitlement was paid 
 
         to him on the date of the hearing.  The only real issues in the 
 
         case were interest and penalty.
 
         
 
         
 
         2907
 
         It was held that the offer to confess judgement procedure 
 
         provided by Code section 677.7 is an appropriate procedure to be 
 
         used by this agency in view of section 86.40.  In this case costs 
 
         were assessed against defendants who had paid the correct amount 
 
         of weekly benefits for healing period and permanent partial 
 
         disability and whose offer was consistent with what they paid on 
 
         the date of hearing, but the offer did not address interest or 
 
         penalty, both of which were recovered by the claimant.
 
         
 
 
            
 
           
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LINDA WALKER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 962163
 
            OSKALOOSA FOOD PRODUCTS,      :
 
            CORPORATION,                  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD INSURANCE        :
 
            GROUP,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Linda Walker, against Oskaloosa Food Products 
 
            Corporation, and the Hartford Insurance Company, as 
 
            defendants.  Claimant sustained an injury which arose out of 
 
            and in the course of her employment on September 20, 1990.
 
            
 
                 The case was heard and fully submitted at Oskaloosa, 
 
            Iowa, on May 6, 1993.  The record consists of testimony from 
 
            the claimant and her husband, David Walker; and, joint 
 
            exhibit 1.
 
            
 
                                      ISSUE
 
            
 
                 The sole issue for consideration is whether claimant is 
 
            entitled to permanent partial disability benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received and having presided at the hearing, finds 
 
            the following facts:
 
            
 
                 At the time of the hearing, claimant was 45 years of 
 
            age.  She is married and has three children, none of the 
 
            children are dependents.
 
            
 
                 Claimant graduated from the eighth grade and has 
 
            received no further education or training.
 
            
 
                 In 1968, claimant began working for Big Smith, a 
 
            clothing manufacturer.  She worked on a full-time basis for 
 
            three years until the company went out of business in 1971 
 
            or 1972.  Claimant's job duties while working for Big Smith 
 
            included inspecting garments; lifting and carrying bundles 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            of clothing weighing approximately five pounds; and, 
 
            pressing and hanging clothes.
 
            
 
                 After the Big Smith Company closed in 1971 or 1972, 
 
            claimant became a full-time mother.  She re-entered the 
 
            competitive work force in 1976 when she began working as a 
 
            cook for Kentucky Fried Chicken.
 
            
 
                 Seven months later, claimant left Kentucky Fried 
 
            Chicken and secured a job with U.S. Fiber.  This position 
 
            required claimant to fill bags with insulation made of 
 
            newspaper.  After filling the bags claimant would carry them 
 
            to the conveyor belt.  Each bag weighed approximately 40 
 
            pounds.  While working for U.S. Fiber, claimant also watched 
 
            the chemical tank mix various ingredients used in processing 
 
            the insulation.
 
            
 
                 Claimant was fired from her position with U.S. Fiber 
 
            due to absenteeism problems.  Apparently, claimant suffered 
 
            from walking pneumonia and was unable to regularly attend to 
 
            her job duties.
 
            
 
                 According to claimant's testimony, she did not work 
 
            outside of the home from 1976 or 1977 until 1984, when she 
 
            was hired by the defendant employer, Oskaloosa Food Products 
 
            Corporation.  Claimant held several positions with defendant 
 
            during her seven year tenure with the company, including 
 
            night shift cleanup; day shift cleanup; inspector; and a 
 
            variety of odd jobs.
 
            
 
                 On September 20, 1990, claimant was placing eggs on the 
 
            conveyor belt.  This job required her to stand on a platform 
 
            placed approximately three to four feet above the ground.  
 
            She would turn to lift a filler or tray of eggs, then turn 
 
            again to bend over and place them on a conveyor belt.  As 
 
            claimant reached over to pull the eggs toward her, she fell 
 
            from the platform and with her left side struck a pipe.  
 
            Apparently, claimant blacked out and when she regained 
 
            consciousness, she yelled for help.  A coworker helped her 
 
            up off of the floor, and claimant was unable to breathe.  
 
            She was told to go home and not to report to work the 
 
            following day.
 
            
 
                 Claimant drove home and called Edward Hirl, M.D., at 
 
            the Family Medical Center, in Oskaloosa, Iowa.  After an 
 
            examination, Dr. Hirl ordered x-rays which revealed a 
 
            fracture of the eleventh rib (Jt. Ex. 1, pp. 1-3).  Claimant 
 
            was then taken off of work and over the next seven weeks 
 
            received follow-up treatment from Dr. Hirl and David Berg, 
 
            M.D., a physician to whom she was referred in October of 
 
            1990 (Jt. Ex. 1, pp. 4-7).  Dr. Berg's initial evaluation 
 
            recommended time off of work, a rib belt which claimant wore 
 
            for several weeks, and norgesic forte, a muscle relaxant.  
 
            Dr. Berg did not anticipate any permanent impairment (Jt. 
 
            Ex. 1, p. 8).  Claimant was released to return to work on 
 
            November 19, 1990 (Jt. Ex. 1, pp. 9-10).
 
            
 
                 In December of 1991, claimant presented to Dr. Berg 
 
            with continued complaints in her left rib.  He noted 
 
            inflammation and tenderness and treated claimant with an 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            injection of lidocain and cortisone.  She was to report back 
 
            on an as-needed basis (Jt. Ex. 1, p. 8).  This visit was the 
 
            last medical treatment claimant has received.
 
            
 
                 Initially, claimant was restricted to four hours of 
 
            work at the plant per day but after two weeks, she resumed 
 
            her full-time schedule.  Although claimant was told she was 
 
            not performing her work satisfactorily, claimant continued 
 
            to work at the egg plant for one year, until her termination 
 
            in November of 1991.  At the time of her termination, she 
 
            was earning $6.25 per hour.
 
            
 
                 On cross-examination, claimant admitted that she had 
 
            not been assigned any permanent work or activity 
 
            restrictions.  She has not been given a permanent impairment 
 
            rating.  Once she returned to her job with the defendant, 
 
            she performed the same job duties and activities as before 
 
            the injury.  She had also been told to be more productive 
 
            while working even before the fall and injury in September 
 
            of 1990.
 
            
 
                 In October of 1992, claimant began working for Pierson 
 
            Seed Corn Company.  Her job duties required her to sort corn 
 
            which had been unloaded from a wagon and moved onto a 
 
            conveyor belt.  This was repetitive work, and at times 
 
            claimant was called upon to help move the conveyor belt.  
 
            Claimant quit this job because she encountered constant pain 
 
            in her left side.  She also testified that the pain became 
 
            worse after working at Pierson Seed Corn Company.  At this 
 
            job, claimant earned $4.85 per hour.
 
            
 
                 Currently, claimant is not working.  She has applied 
 
            for jobs at several factories and fast food establishments.  
 
            Although claimant did not receive any interviews, she stated 
 
            that the applications did not require her to disclose 
 
            information about workers' compensation claims or physical 
 
            limitations.
 
            
 
                 Claimant's husband also testified at the hearing.  He 
 
            is currently employed as a factory worker and indicated he 
 
            is familiar with different types of factory work.  Although 
 
            he did not specifically state that claimant would be unable 
 
            to perform any type of factory job, he believes that 
 
            claimant is in constant pain because she talks about it and 
 
            she sleeps on the couch.  She no longer participates in 
 
            hobbies such as fishing and boating and her husband now has 
 
            to help her carry groceries.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to be addressed is whether claimant is 
 
            entitled to permanent partial disability benefits.
 
            
 
                 The parties stipulated that if the injury is found to 
 
            have caused a permanent disability, the disability is to be 
 
            evaluated industrially.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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 45 years of 
 
            age which places her at the mid point of the years she would 
 
            likely to have the greatest earning capacity.  She sustained 
 
            a broken rib while performing her regular job duties.  She 
 
            received workers' compensation benefits for the time she was 
 
            off of work and recuperating from the injury.
 
            
 
                 There is no medical evidence that suggests claimant has 
 
            sustained a permanent disability from the injury.
 
            
 
                 The record does not indicate the claimant has ever been 
 
            assigned a functional impairment rating.  Neither does the 
 
            record contain any evidence that claimant has any work 
 
            activity restrictions.  And, although the claimant 
 
            repeatedly stated that she was unable to work because of the 
 
            constant pain in her left side, the agency has consistently 
 
            held that pain which is not substantiated by clinical 
 
            findings is not a substitute for impairment.  See Waller v. 
 
            Chamberlain Mfg., II Iowa Ind. Comm'r Rep. 419 (1981).  The 
 
            last medical record memorializing claimant's medical 
 
            treatment is dated December 1991.  Prior to that, she had 
 
            not been to a doctor since November of 1990.
 
            
 
                 There is no objective evidence or even documented 
 
            subjected complaints for an entire year after claimant's 
 
            injury and her subsequent termination.
 
            
 
                 Claimant was able to perform her regular job duties for 
 
            approximately one year after her return to work following 
 
            her recuperation from the work injury.  While claimant 
 
            indicated that she had been reprimanded for nonproductivity, 
 
            she had also been reprimanded for nonproductivity prior to 
 
            the injury.
 
            
 
                 Additionally, claimant indicated that her left side 
 
            began to feel worse after she worked for the seed corn 
 
            company.
 
            
 
                 Even though her husband intimated that she would be 
 
            unable to perform any factory work, claimant obviously feels 
 
            differently because she applied for various positions at 
 
            numerous factories in the Oskaloosa area.  The undersigned 
 
            believes claimant's efforts for finding a job have been 
 
            minimal.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 The undersigned has considered all of the factors that 
 
            comprise an industrial disability, including but not limited 
 
            to the following evidence in the record:  Claimant's return 
 
            to her full-time job duties after the injury; lack of a 
 
            functional impairment rating; lack of work or activity 
 
            restrictions due to her physical condition; lack of any 
 
            evidence in the record that indicates objective findings to 
 
            substantiate her complaints of pain; and, her lack of 
 
            motivation to find similar work.  It is found that claimant 
 
            has not shown by a preponderance of the evidence that she 
 
            sustained a permanent disability and therefore is not 
 
            entitled to any award.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from these proceedings.
 
            
 
                 That each party shall bear the costs of pursuing and/or 
 
            defending the claim.
 
            
 
                 Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Michael P Brice
 
            Attorney at Law
 
            402 High Ave E
 
            P O Box 1143
 
            Oskaloosa IA 52577
 
            
 
            Mr George H Capps
 
            Attorney at Law
 
            P O Box 971
 
            Des Moines IA 50304
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1800
 
                                                 Filed May 20, 1993
 
                                                 Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LINDA WALKER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 962163
 
            OSKALOOSA FOOD PRODUCTS,      :
 
            CORPORATION,                  :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            THE HARTFORD INSURANCE        :
 
            GROUP,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1800
 
            Claimant sustained a fractured rib.  She was off of work for 
 
            approximately two months.
 
            
 
            The sole issue was whether claimant had sustained a 
 
            permanent disability.
 
            
 
            Claimant had returned to work for one year after the injury; 
 
            she had not been assigned a permanent impairment rating; no 
 
            physician or health care provider had assigned permanent 
 
            work restrictions; and claimant had not been treated for 
 
            more than one year prior to her termination for absenteeism.
 
            Claimant took nothing from these proceedings.
 
            
 
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BOBBY K. BUTLER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :       File No. 962252
 
            vs.                           :
 
                                               A R B I T R A T I O N
 
            WELLS MANUFACTURING CORP.,    :
 
                                                  D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                             STATEMENT OF THE CASE
 
            
 
                 This is a contested case proceeding upon the petition 
 
            in arbitration of claimant Bobby Butler against his former 
 
            employer, Wells Manufacturing Corporation, and its insurance 
 
            carrier, CNA Insurance Companies.  Mr. Butler alleges that 
 
            he sustained a work injury on September 17, 1990, and now 
 
            seeks benefits under the Iowa Workers' Compensation Act.
 
            
 
                 A hearing was accordingly held in Des Moines, Iowa on 
 
            July 26, 1993.  Claimant's exhibits 1-3 and 5-9 were 
 
            received into evidence.  Defendants' objection to claimant's 
 
            exhibit 4 was taken under advisement and is at this time 
 
            overruled.  Claimant's exhibit 4 is received, except that 
 
            the portion of that exhibit relating to settlement 
 
            negotiations has not been considered.  Defendants' exhibits 
 
            A-N were received.  The following witnesses gave testimony 
 
            at hearing:  claimant, Paul Barnes, Anthony Budiselich, 
 
            Marcia Driscoll, Samuel Russell, Chris Kanselaar and Kathryn 
 
            Crump.  Exhibit N is the deposition testimony of Scott Neff, 
 
            D.O.  Dr. Neff testified on March 15, 1993.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the following:
 
            
 
                    1.  An employment relationship existed at 
 
                    the time of the alleged injury;
 
            
 
                    2.  The proper rate of compensation is 
 
                    $127.69 per week;
 
            
 
                    3.  Entitlement to medical benefits is no 
 
                    longer in dispute; and,
 
            
 
                    4.  Defendants paid a total of $1,855.18 in 
 
                    voluntary benefits prior to hearing.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The following issues were presented for resolution:
 
            
 
                    1.  Whether claimant sustained injury 
 
                    arising out of and in the course of 
 
                    employment on September 17 (or 12), 1990;
 
            
 
                    2.  Whether the injury caused either 
 
                    temporary or permanent disability;
 
            
 
                    3.  The extent of temporary total disability 
 
                    or healing period; and,
 
            
 
                    4.  The nature and extent of permanent 
 
                    disability, if any.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Bobby Butler, 23 years of age at hearing, has two 
 
            problems with respect to his left shoulder: a "snapping" 
 
            scapula and occult (hidden) instability.  The diagnosis is 
 
            that of Scott Neff, D.O., a board certified orthopedic 
 
            surgeon.
 
            
 
                 However, Mr. Butler has been inconsistent in the course 
 
            of this litigation with respect to how these problems are 
 
            claimed to have come about.  According to his petition, 
 
            claimant suffered injury to the left wrist and left shoulder 
 
            due to "Overuse -- Repetitive Motion."
 
            
 
                 By way of contrast, on February 20, 1992, claimant 
 
            served an interrogatory answer describing the injury-causing 
 
            event as follows:
 
            
 
                       I was working on the Jones machine moving 
 
                    heavy cases of starter solenoids to a stool.  
 
                    I had five cases in a stack on top of the 
 
                    stool when they started to tip over.  I put 
 
                    my arms around the stack and, holding the 
 
                    stool, attempted to straighten the stack 
 
                    with my body.  The entive [sic] stack fell 
 
                    towards me.  I felt a burning in my shoulder 
 
                    area, but continued to work that day.
 
            
 
                       The next day I was working on the 
 
                    granulator.  I tried to dump the collected 
 
                    material from the collection bin into a 
 
                    larger container, but just as I lifted the 
 
                    bin I suffered intense pain in my shoulder 
 
                    and dropped the bin to the floor.  My 
 
                    shoulder pain continued to worsen until it 
 
                    got to the point where I could no longer 
 
                    continue to work.
 
            
 
                 On September 12, 1990, claimant signed an accident 
 
            investigation report citing chronic pain in the left hand.  
 
            The narrative description:
 
            
 
                    Bobby has been having discomfort in his left 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                    hand for a few weeks.  He thought it was 
 
                    related to a cyst he has on his wrist.  (The 
 
                    cyst was there when he began at Wells).  His 
 
                    doctor doesn't think the pain is related to 
 
                    the cyst.
 
            
 
                 Wells Manufacturing Corporation manufactures and 
 
            distributes electronic auto parts.  The parts are packed and 
 
            shipped in the Centerville plant where claimant was employed 
 
            as a full-time temporary worker from July 1990 through 
 
            November 11, 1990.
 
            
 
                 According to claimant's trial testimony, his injury 
 
            occurred on September 11 or September 12, not September 17.  
 
            Mr. Butler says he was operating the Jones machine with a 
 
            co-worker, Marcia Driscoll.  Boxes of starter solenoids were 
 
            coming to him too quickly, so he began stacking the boxes, 
 
            perhaps five or six high, on a nearby stool.  Unfortunately, 
 
            the stack was unsteady and began leaning; claimant attempted 
 
            to steady the stack with his left arm, but the boxes fell 
 
            and pushed his elbow straight down while he was 
 
            simultaneously pulling up.
 
            
 
                 Claimant described an immediate burning in his shoulder 
 
            like a dislocation, but slipping back into place.  He 
 
            described this sharp pain as deep "inside" the shoulder 
 
            joint.  However, despite continuing pain, claimant worked 
 
            through the balance of his shift.
 
            
 
                 The following day, claimant testified he volunteered to 
 
            operate a granulator machine, a relatively easy job.  
 
            However, he says while picking up a collection bin, he 
 
            suddenly experienced a terrible pain in the back and left 
 
            shoulder, thus causing him to drop the bin.  He described 
 
            intense pain beneath the shoulder blade radiating both up 
 
            and down, followed by a constant throb.  Mr. Butler 
 
            testified he advised shift supervisor Chris Kanselaar of his 
 
            condition and went home early.
 
            
 
                 One naturally wonders why claimant did not mention 
 
            these dramatic incidents in the injury report prepared on 
 
            September 12 or later.  Claimant saw a chiropractor, Dr. 
 
            Lawrence Heffron, on September 12, and complained of pain in 
 
            the left side of the neck and shoulder along with a 
 
            complaint about a ganglion cyst in the left hand.  However, 
 
            it is conceded that he saw Dr. Heffron before the shift 
 
            began, the second shift.
 
            
 
                 Some seven weeks earlier, on July 26, claimant had 
 
            visited another chiropractor, Dr. Arden Keune, with 
 
            complaints of upper thoracic and left shoulder pain.  Dr. 
 
            Keune recommended light duty work for two days.  The history 
 
            claimant gave to Dr. Keune included complaints of left 
 
            shoulder, left wrist and upper back pain with a duration of 
 
            several years.  Severity of the "constant ache" became 
 
            "worse as day goes on."
 
            
 
                 In any event, Dr. Heffron referred claimant to David B. 
 
            Fraser, M.D., because he does not personally treat soft 
 
            tissue injuries.  This determination was made prior to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant's shift on September 12.
 
            
 
                 Dr. Fraser, incidentally, had treated claimant on a 
 
            number of occasions beginning in 1987.  His chart note of 
 
            July 20, 1988, recorded a two-month history of pain in the 
 
            left shoulder after claimant "apparently reached back to get 
 
            something out of the back seat of his car and hurt his back 
 
            at that time."  Dr. Fraser reported crepitation at the 
 
            medial aspect of the left scapula with tenderness, but good 
 
            range of motion of the shoulder itself.
 
            
 
                 Curiously, Dr. Fraser's notes of September 17, 1990 
 
            reflect complaints of left shoulder pain and the 
 
            distribution of the deltoid muscle and recurrence of 
 
            ganglion cyst problems which the doctor considered 
 
            "[p]robably an overuse syndrome; including some flexor 
 
            tendinitis and maybe early carpal tunnel and then a deltoid 
 
            tendinitis."  No mention whatsoever was noted of the 
 
            traumatic incidents with the Jones machine and the 
 
            granulator.  Similarly, on September 24, Dr. Fraser repeated 
 
            his view that claimant suffered an overuse type syndrome and 
 
            made no mention of traumatic injury.  Follow-up visits on 
 
            September 28 and November 9, similarly failed to mention any 
 
            traumatic onset of symptoms.
 
            
 
                 Claimant was seen by Delwin E. Quenzer, M.D., 
 
            commencing October 10, 1990.  Claimant reported to Dr. 
 
            Quenzer that he had seen a doctor in September after putting 
 
            up with symptoms for several weeks.  Again, no mention 
 
            whatsoever was made of any specific traumatic injury.
 
            
 
                 In fact, the first indication in this record that 
 
            claimant made any complaint to any person of the traumatic 
 
            incidents upon which this claim is apparently based, appears 
 
            in physical therapy notes dated February 1, 1991, almost 
 
            five months later.
 
            
 
                 This extensive history of non-reporting to the employer 
 
            and multiple physicians is, in agency experience, most 
 
            unusual in traumatic injury such as here described.
 
            
 
                 The probable explanation for claimant's failure to 
 
            report these traumatic incidents is that they never 
 
            occurred.  Marcia Driscoll, who was working with claimant at 
 
            the time of the claimed Jones machine incident, failed to 
 
            recall any such "falling boxes" incident and does not recall 
 
            Mr. Butler making any complaint of shoulder injury.  Indeed, 
 
            she testified that boxes had never been stacked on the stool 
 
            as claimant testified: both for safety reasons, and because 
 
            it is simply not feasible.  Shift supervisor Chris Kanselaar 
 
            agreed that it is not feasible to stack boxes as claimant 
 
            testified, and specifically denied that he had reported a 
 
            work injury to her (as Mr. Butler alleges).  On the other 
 
            hand, she recalled that when claimant was put on light duty 
 
            in July, he told her of an old shoulder injury suffered at a 
 
            battery warehouse (a previous employer).  Ms. Kanselaar 
 
            believes that claimant had specified the left shoulder, 
 
            although unable to be totally positive on that point.
 
            
 
                 Samuel Russell, another co-worker, agreed that it was 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            not feasible to stack boxes on a stool near the Jones 
 
            machine, and had never seen boxes stacked as claimant 
 
            described.  He remembered claimant pointing out a shoulder 
 
            that slipped in and out of place, but reported that claimant 
 
            did not relate this to any work injury at Wells 
 
            Manufacturing.  He recalled no work injury or claimant's 
 
            report of injury.
 
            
 
                 Kathryn Crump, a personal clerk, testified that Mr. 
 
            Butler made complaint only of his wrist on September 12, and 
 
            that she had arranged Dr. Fraser's appointment for September 
 
            17th, the earliest date available.  Coincidentally, she had 
 
            an opportunity to observe claimant in subsequent 
 
            self-employment during April 1993.  Mr. Butler was seen 
 
            standing on a ladder at a funeral home, chipping paint.  Ms. 
 
            Crump reported that she watched claimant for approximately 
 
            ten minutes, during which he used his left hand--but only 
 
            until seeing her, after which he switched to the right 
 
            (dominant) hand.  
 
            
 
                 After leaving Wells Manufacturing, claimant worked a 
 
            medium to heavy job (unloading 50 pound crates) for 
 
            approximately eighteen months at another manufacturing 
 
            facility.  Thereafter, he and another individual formed a 
 
            painting and construction company.  Claimant conceded that 
 
            he failed to file income tax returns for 1991 and 1992.  
 
            This failure, very probably criminal, also has adverse 
 
            impact on Mr. Butler's credibility.  It is noted that 
 
            claimant has acted as a police informant, which presumably 
 
            requires association with a criminal element.
 
            
 
                 Dr. Neff, who evaluated claimant on August 3, 1992, 
 
            concluded that the cause of claimant's shoulder instability 
 
            was probably when claimant reached into the back seat of a 
 
            car in 1988, a motion consistent with development of 
 
            instability.  The "falling boxes," on the other hand, are 
 
            not.
 
            
 
                 Given this large volume of evidence inconsistent with 
 
            Mr. Butler's version of events, claimant has failed to 
 
            persuade that he sustained injury at Wells Manufacturing, 
 
            either of traumatic onset or through overuse syndrome.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 As discussed above, claimant has failed to meet his 
 
            burden of proof.  Accordingly, defendants prevail.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant takes nothing further.
 
            
 
                 Costs are assessed to claimant.
 
            
 
                 Signed and filed this ____ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Daniel P Wilson
 
            Attorney at Law
 
            303 W State
 
            Centerville Iowa 52544
 
            
 
            Ms Dorothy L Kelley
 
            Attorney at Law
 
            500 Liberty Building
 
            418 6th Avenue
 
            Des Moines Iowa 50309-2421
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1402.30
 
                                            Filed Feburary 8, 1994
 
                                            DAVID R. RASEY
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BOBBY K. BUTLER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :      File No. 962252
 
            vs.                           :
 
                                               A R B I T R A T I O N
 
            WELLS MANUFACTURING CORP.,    :
 
                                          :      D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1402.30
 
            Claimant's version of events was inconsistent with the bulk 
 
            of other evidence.  He failed to meet his burden of proof in 
 
            establishing an injury arising out of and in the course of 
 
            employment.
 
            
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         VALENCIA ROUSE,               :
 
                                       :        File No. 962377
 
              Claimant,                :
 
                                       :     A R B I T R A T I O N
 
         vs.                           :
 
                                       :        D E C I S I O N
 
         IBP, INC.,                    :
 
                                       :
 
              Employer,                :
 
              Self-Insured,            :
 
              Defendant.               :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Marie Valencia Rouse, against her employer, IBP, Inc., 
 
         self-insured employer, defendant.  The case was heard on November 
 
         6, 1991, in Burlington, Iowa at the Des Moines County Courthouse.  
 
         The record consists of the testimony of claimant.  The record 
 
         also consists of claimant's exhibits 1-21 and defendant's 
 
         exhibits A-I.
 
         
 
              Furthermore, for purposes of clarification, it is noted that 
 
         Deputy Walleser entered a ruling on motion for sanctions on 
 
         November 1, 1991.  In her ruling Deputy Walleser ordered that:
 
         
 
              [C]laimant is barred from raising any issue or fact 
 
              regarding her mental health, industrial disability or 
 
              inability to secure employment subsequent to her 
 
              alleged injuries.
 
         
 
              Subsequent to the hearing, Deputy Walleser also ruled on a 
 
         motion for rehearing on November 25, 1991.  In that ruling the 
 
         prehearing deputy ordered that claimant's Rule 179(b) motion was 
 
         deemed a motion to reconsider and Deputy Walleser denied the 
 
         motion to reconsider.
 
         
 
              Since the aforementioned rulings were made by the prehearing 
 
         deputy, the undersigned did not address the issues.  However, 
 
         claimant was allowed to submit records for the purpose of making 
 
         an offer of proof.
 
         
 
                                      issue
 
         
 
              The issue to be determined is whether claimant is entitled 
 
         to temporary disability/healing period benefits or permanent 
 
         disability benefits.
 
         
 
                                 findings of fact
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant is 35 years old.  She is a high school graduate.  
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         Her highest hourly wage rate attained was $6.00 per hour.  She 
 
         was employed with defendant from October 16, 1988 through June 
 
         13, 1989.
 
         
 
              Claimant testified that prior to her employment with 
 
         defendant, she had experienced no problems with tendonitis with 
 
         her hands, fingers or wrists.  After October 16, 1988, claimant 
 
         testified she began "piping."  Her duties required her to flush 
 
         intestines 8 hours per day, 5 days per week.  According to 
 
         claimant's testimony, she experienced numbness, tingling, and 
 
         sharp pains in her hands and fingers.  Eventually, claimant was 
 
         diagnosed as having bilateral carpal tunnel syndrome.
 
         
 
              Rouben Mirbegian, M.D., performed a right carpal tunnel 
 
         release on October 2, 1989.  On October 16, 1989, he released 
 
         claimant to return to work for one handed work only.
 
         
 
              On December 8, 1989, Dr. Mirbegian performed a left carpal 
 
         tunnel release.  In his report of January 3, 1990, Dr. Mirbegian 
 
         opined:
 
         
 
              [I] believe this patient now has recovered from her 
 
              left carpal tunnel so as the right carpal tunnel 
 
              release and I believe she will be able to return to 
 
              gainful employment maybe at the beginning of February.
 
         
 
              On February 14, 1990, Dr. Mirbegian provided claimant with 
 
         an impairment rating.  He wrote:
 
         
 
              Each hand is entitled to 5% permanent impairment rating 
 
              according to AMA Guidelines for causing pain or having 
 
              surgery.  All totaled together she has 10% permanent 
 
              impairment of her upper extremities.
 
         
 
              Claimant voluntarily terminated her employment on June 12, 
 
         1989.  Subsequently, she obtained employment with Piper Excel of 
 
         Beardstown, Illinois on July 24, 1990.  As of April 9, 1991, 
 
         claimant was earning $7.05 per hour.
 
         
 
                                conclusions of law
 
         
 
              Here, claimant sustained a simultaneous injury to scheduled 
 
         members as of March 15, 1989.
 
         
 
              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).
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
              The employer shall furnish reasonable surgical, medical, 
 
         dental, osteopathic, chiropractic, podiatric, physical rehabili
 
         tation, nursing, ambulance and hospital services and supplies for 
 
         all conditions compensable under the workers' compensation law.  
 
         The employer shall also allow reasonable and necessary trans
 
         portation expenses incurred for those services.  The employer has 
 
         the right to choose the provider of care, except where the 
 
         employer has denied liability for the injury.  Section 85.27.; 
 
         Holbert v. Townsend Engineering Co., Thirty-second Biennial 
 
         Report of the Industrial Commissioner 78 (Review decision 1975).  
 
         Claimant has the burden of proving that the fees charged for such 
 
         services are reasonable.  Anderson v. High Rise Constr. 
 
         Specialists, Inc., file number 850096 (Appeal Decision 1990).
 
         
 
              Claimant is not entitled to reimbursement for medical bills 
 
         unless claimant shows they were paid from claimant's funds.  See 
 
         Caylor v. Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa App. 
 
         1983).
 
         
 
              In the instant case, the treating orthopedic surgeon, Dr. 
 
         Mirbegian, provided an impairment rating.  He assessed a rating 
 
         to each of claimant's hands.  It has long been recognized by this 
 
         agency that a wrist injury is an injury to the hand, not to 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. Decn. 
 
         1981).
 
         
 
              Dr. Mirbegian opined claimant had a five percent impairment 
 
         to each hand or a ten percent impairment to her upper extremi
 
         ties.  Dr. Mirbegian used the AMA Guides to Permanent Impairment.  
 
         A five percent impairment to the hand translates to a five per
 
         cent impairment to the upper extremity and a five percent impair
 
         ment to the upper extremity translates to a three percent 
 
         impairment to the whole person.  Using the combined values chart 
 
         in the AMA Guides, claimant is entitled to a six percent 
 
         functional impairment.
 
         
 
              Using section 85.34(a)(s) of the Iowa Code, claimant is 
 
         entitled to 30 weeks of permanent partial disability benefits at 
 
         the corrected stipulated rate of $178.33 per week for a married 
 
         individual with two exemptions.  This benefit rate is based upon 
 
         gross weekly wages of $273.00 per week.  Claimant's permanent 
 
         partial disability benefits commenced as of February 1, 1990, the 
 
         date Dr. Mirbegian released claimant to return to work.
 
         
 
              Claimant is also entitled to healing period benefits.  
 
         Section 85.34(1) provides that healing period benefits are 
 
         payable to an injured worker who has suffered permanent partial 
 
         disability until (1) the worker has returned to work; (2) the 
 
         worker is medically capable of returning to substantially similar 
 
         employment; or (3) the worker has achieved maximum medical recov
 
         ery.  The healing period can be considered the period during 
 
         which there is a reasonable expectation of improvement of the 
 
         disabling condition.  See Armstrong Tire & Rubber Co. v. Kubli, 
 
         312 N.W.2d 60 (Iowa App. 1981).  Healing period benefits can be 
 
         interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 405 
 
         (Iowa 1986).
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
              Claimant was off work during the following periods due to 
 
         her bilateral carpal tunnel syndrome:
 
         
 
                             From      4-09-89
 
                          To      4-21-89
 
                        From     10-02-89
 
                          To      2-01-90
 
         
 
              Claimant is entitled to 19.428 weeks of healing period bene
 
         fits at the corrected stipulated rate of $178.33 per week.
 
         
 
              It is noted that the parties have waived any interest pay
 
         ments due prior to April 14, 1989.
 
         
 
                                      order
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant is to pay unto claimant nineteen point 
 
         four-two-eight (19.428) weeks of healing period benefits at the 
 
         corrected stipulated rate of one hundred seventy-eight and 33/l00 
 
         dollars ($178.33) per week.
 
         
 
              Defendant is to also pay unto claimant 30 weeks of permanent 
 
         partial disability benefits at the corrected stipulated rate of 
 
         one hundred seventy-eight and 33/l00 dollars ($178.33) per week 
 
         and commencing on February 1, 1990.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year pur
 
         suant to section 85.30, Iowa Code, as amended, with the aforemen
 
         tioned stipulation.
 
         
 
              Defendant shall receive credit for all benefits paid previ
 
         ously.
 
         
 
              Costs are taxed to defendant including:
 
         
 
              Filing fee                   $ 65.00
 
              Report of Dr. Hafrey            8.00
 
              Report of Dr. Mirbegian        10.00
 
              Report of Keokuk Hospital       8.00
 
              Deposition of claimant         58.00
 
                                           $149.00
 
         
 
              Defendant shall file a claim activity report as requested by 
 
         this division and pursuant to rule 343 IAC 3.1.
 
         
 
         
 
         
 
              Signed and filed this ____ day of March, 1992.
 
         
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
         MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Michael J. Schilling
 
         Attorney at Law
 
         205 Washington Street
 
         P O Box 821
 
         Burlington, Iowa  52601
 
         
 
         Ms. Marie L. Welsh
 
         Attorney at Law
 
         P O Box 515, Dept. #41
 
         Dakota City, Nebraska  68731
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            2900; 2901; 5-1800; 5-1803.1 
 
            Filed March 13, 1992
 
            MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            VALENCIA ROUSE,               :
 
                                          :        File No. 962377
 
                 Claimant,                :
 
                                          :     A R B I T R A T I O N
 
            vs.                           :
 
                                          :        D E C I S I O N
 
            IBP, INC.,                    :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
            2900; 2901
 
            Claimant was allowed to make an offer of proof only.  Prior 
 
            to the hearing, Deputy Walleser entered a ruling on a motion 
 
            for sanctions.  In her ruling, Deputy Walleser ordered that:
 
            
 
                 [C]laimant is barred from raising any issue or 
 
                 fact regarding her mental health, industrial 
 
                 disability or inability to secure employment 
 
                 subsequent to her alleged injuries.
 
            Since the aforementioned ruling was made by a prehearing 
 
            deputy, the undersigned did not allow issues or evidence 
 
            relating to claimant's mental health, industrial disability, 
 
            or inability to secure employment subsequent to claimant's 
 
            alleged injuries.  However, claimant was allowed to submit 
 
            records for the purpose of making an offer of proof only.
 
            
 
            
 
            5-1800; 5-1803.1
 
            Claimant sustained a bilateral carpal syndrome while 
 
            employed in defendant's packing plant.  It was determined 
 
            that claimant had a permanent partial disability of six 
 
            percent.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JUDY A CHRISTENSEN,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 962382
 
            BEEF SPECIALIST OF IOWA,      :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            HARTFORD INSURANCE CO.,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Judy A. 
 
            Christensen against her former employer based upon a 
 
            stipulated injury of October 26, 1989.  The disputed issues 
 
            in the case are that claimant claims additional healing 
 
            period benefits running from August 12, 1991 through 
 
            November 19, 1991 and permanent partial disability 
 
            compensation.  There is a dispute regarding whether the 
 
            injury produced any degree of permanent disability and if 
 
            so, whether the disability is scheduled or an unscheduled 
 
            disability.  It was stipulated at hearing that claimant 
 
            terminated her employment on August 12, 1991 and that weekly 
 
            compensation benefits had been paid off and on until August 
 
            12, 1991.  The motion regarding noncompliance is overruled.
 
            
 
                 The record in this proceeding consists of testimony 
 
            from Judy A. Christensen and jointly offered exhibits 1 
 
            through 6 and 8 through 10.  
 
            
 
                 It should be noted at this point that at hearing 
 
            counsel submitted joint exhibits numbered 1 through 10 and 
 
            those exhibits were all received into evidence in their 
 
            entirety without objection and without being examined by the 
 
            undersigned.  Upon proceeding to decide this case, it was 
 
            discovered by the undersigned that the joint exhibits 
 
            contained numerous duplications, claim forms for medical 
 
            expenses which are not disputed and detailed records 
 
            concerning the birth of claimant's last child and 
 
            surrounding events, all of which have no probative value in 
 
            relation to the disputed issues in this case.  Counsel 
 
            failed to comply with the provision of the hearing 
 
            assignment order which requires that pages of exhibits be 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            consecutively numbered.  Counsel are to be admonished for 
 
            failing to comply with the terms of the hearing assignment 
 
            order regarding the relevant, immaterial and unduly 
 
            repetitious evidence as well as for the failure to number 
 
            the pages.  Counsel are also admonished for offering into 
 
            evidence records containing intimate details of claimant's 
 
            pregnancy and childbirth which have no probative value to 
 
            the disputed issues in this case and which, when received 
 
            into evidence, become a matter of public record. 
 
            
 
                 As a result of counsels' conduct, it was necessary for 
 
            the undersigned to consecutively number the pages of each 
 
            exhibit and remove from each exhibit the pages which clearly 
 
            were unduly repetitious, irrelevant or immaterial.  The 
 
            documents removed consist of the following:  the last four 
 
            pages of exhibit 1; pages 15 and 16 of exhibit 2; pages 2 
 
            through 11, 13, 17 through 29 and 32 of exhibit 3; pages 21 
 
            through 35 of exhibit 4; pages 5 through 8 and 12 through 16 
 
            of exhibit 5; pages 4 and 15 through 39 of exhibit 6; all of 
 
            exhibit 7; page 4 of exhibit 8; and pages 7 through 13 of 
 
            exhibit 10.  Those documents removed consist of more than 
 
            one-half of the entire documents originally offered and 
 
            received.  Those documents removed are withdrawn by the 
 
            undersigned from the record of this case and are returned to 
 
            claimant's counsel.  In the event that either counsel feels 
 
            that any of the exhibits have probative value to the 
 
            disputed issues in this case, counsel are directed to raise 
 
            any objection or argument in a motion for reconsideration.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Judy A. Christensen is a 36-year-old woman who has four 
 
            children.  Judy commenced employment with Beef Specialists, 
 
            Incorporated working on the trim line and as a bagger.  The 
 
            work required repetitive activity.  She eventually developed 
 
            a ganglion cyst on her left wrist and carpal tunnel syndrome 
 
            in her left hand.  She was directed to the care of Ricky D. 
 
            Wilkerson, D.O., who performed surgery to remove the cyst 
 
            and decompress the median nerve at claimant's left wrist.  
 
            (Jt. Ex. 2, pp. 5, 9)  Claimant's symptoms improved and she 
 
            returned to work.  
 
            
 
                 In May 1990 Dr. Wilkerson found claimant to have 
 
            continuing pain and weakness but he assigned her a permanent 
 
            partial impairment of 0 percent of the left hand stating 
 
            that the AMA Guides give nothing for pain or weakness.  (Jt. 
 
            Ex. 2, pp. 4, 13)
 
            
 
                 Claimant developed lateral epicondylitis of her left 
 
            elbow which was treated with phonophoresis and electrical 
 
            stimulation.  (Jt. Ex. 6, pp. 3-14)
 
            
 
                 In view of her continuing complaints claimant was 
 
            placed under the care of J. Michael Donohue, M.D.  Claimant 
 
            was diagnosed as having reflex sympathetic dystrophy of the 
 
            left hand, forearm and arm.  She was placed into an 
 
            aggressive therapy program.  (Jt. Ex. 4, pp. 16-19; Ex. 10, 
 
            pp. 3-6)  While under Dr. Donohue's care claimant resumed 
 
            work, working on a part-time basis or in a modified duty 
 
            position much of the time.  Claimant developed complaints in 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            her left shoulder and neck which were also treated.  Dr. 
 
            Donohue considered those complaints to constitute chronic 
 
            cervical and left shoulder strain.  (Jt. Ex. 4, p. 2)  
 
            
 
                 The general pattern which developed was that claimant 
 
            would improve when she was treated with appropriate therapy 
 
            and restriction of activities.  When she attempted to resume 
 
            regular duty her symptoms recurred.  Dr. Donohue and Dr. 
 
            Wilkerson both recommended that she find work outside this 
 
            employer's packing plant.  Finally, in August 1991 claimant 
 
            accepted that advice and resigned on August 12, 1991.
 
            
 
                 Following her resignation, claimant was again seen by 
 
            Dr. Donohue on September 10, 1991.  (Jt. Ex. 4, p. 3)  The 
 
            report indicates that he had a long discussion with her 
 
            concerning overuse syndrome and residual symptoms.  His 
 
            report indicates that she has not sustained any permanent 
 
            impairment based on objective findings but that she would 
 
            require permanent restrictions on her activities.  The 
 
            report indicates that he considered her to be close to 
 
            reaching maximum medical improvement.  She had been off work 
 
            for three weeks at the time.  
 
            
 
                 Dr. Donohue next saw claimant on November 19, 1991.  
 
            His records note significant improvement of her symptoms.  
 
            The report indicates that he feels that she has achieved 
 
            maximum medical improvement from her injury and again states 
 
            that she has not sustained any permanent impairment but may 
 
            need to continue activity restriction indefinitely.  (Jt. 
 
            Ex. 4, p. 2)
 
            
 
                 At hearing claimant described that she has continual 
 
            complaints regarding her left hand, arm, shoulder and neck.  
 
            She developed a sebaceous cyst which was surgically removed.  
 
            The treating physician felt it did not have any relation to 
 
            her left upper extremity problems.  (Jt. Ex. 8)  No 
 
            physician has given any indication to the contrary.  
 
            
 
                 It is found that Judy Christensen had an injury in the 
 
            nature of carpal tunnel syndrome.  She also developed 
 
            lateral epicondylitis and a chronic strain of her left 
 
            shoulder and neck.  There is nothing in the record to 
 
            indicate that the chronic strain of her shoulder and neck or 
 
            the lateral epicondylitis are permanent conditions. The 
 
            existence of continuing symptoms does not necessarily 
 
            establish the existence of permanent disability where no 
 
            objective physiological abnormality has been identified.  
 
            
 
                 Claimant's carpal tunnel syndrome is a different 
 
            condition.  It is a condition which was objectively 
 
            identified and treated surgically.  Claimant has the typical 
 
            residual complaints which are not uncommon following 
 
            treatment of the condition.  The reports from Dr. Wilkerson 
 
            show a demonstrated loss of strength.  Claimant appears to 
 
            have been an industrious worker and well motivated.  The 
 
            fact that she chose to resign from her position is a strong 
 
            indication that the pain which she was experiencing was of 
 
            sufficient degree to limit her activities.  It was not 
 
            merely a distraction.  Table 16 found at page 57 of the 
 
            fourth edition of the AMA Guides to the Evaluation of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Permanent Impairment shows that for mild upper extremity 
 
            impairment resulting from entrapment of the median nerve at 
 
            the wrist a 10 percent permanent impairment rating of the 
 
            upper extremity is appropriate.  That rating is found to be 
 
            appropriate in this case.  The fact that claimant has 
 
            activity restrictions assigned by both physicians is 
 
            overwhelming evidence that she has some disability.  Since 
 
            the repeat EMG testing was normal and when considering the 
 
            nature of the activity restrictions, it is found that her 
 
            impairment and disability are mild, rather than moderate or 
 
            severe.  Referring to table 2 at page 19 of the Guides shows 
 
            that 10 percent impairment of the upper extremity is 
 
            equivalent to 11 percent of the hand.  
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The 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).
 
            
 
                 Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  Compensation for scheduled 
 
            permanent partial disability is determined under Iowa Code 
 
            section  85.34(2)(a) - (t) according to the functional loss 
 
            of use of the member without considering the impact of the 
 
            injury upon the individual's earnings or earning capacity.  
 
            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); Moses v. Nat'l Union Coal Mining Co., 194 Iowa 819, 
 
            184 N.W. 746 (1921).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects or compensatory change, result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn be the basis for a rating of industrial disability.  It 
 
            is the anatomical situs of the permanent injury or 
 
            impairment which determines whether the schedules in section 
 
            85.34(2)(a) - (t) are applied.  Lauhoff Grain v. McIntosh, 
 
            395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber 
 
            Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores 
 
            Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 The evidence in the record of this case clearly shows 
 
            that claimant developed carpal tunnel syndrome and has 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            residual disability effecting her left hand as a result of 
 
            the carpal tunnel syndrome.  The record does not contain 
 
            sufficient evidence to show that the injury and resulting 
 
            disability is anything other than a disability of the left 
 
            hand.  It is therefore determined that claimant's disability 
 
            is a scheduled disability which is to be compensated under 
 
            section 85.34(2)(l). 
 
            
 
                 Section 85.34(2)(l) speaks of loss and disability.  The 
 
            Iowa Supreme Court has stated that the term "loss" means 
 
            loss of use.  Moses v. National Union Coal Mining Co., 194 
 
            Iowa 819, 194 N.W. 746 (1921).  Nothing in the workers' 
 
            compensation statute makes reference to the AMA Guides.  The 
 
            Guides is made authoritative only by agency rule 343 IAC 
 
            2.4.  The effect of the rule is that for scheduled injuries, 
 
            payment made in accordance with the Guides is considered to 
 
            be a prima facie showing of compliance with those sections.  
 
            The rule does not state that the Guides is preferred or 
 
            prevent the presentation of other medical opinion or guides 
 
            for establishing the degree of permanent impairment.  
 
            Interestingly, the rule does not speak of "loss" or 
 
            "disability," the terms used in the workers' compensation 
 
            statute.  The Iowa Supreme Court has recognized that the 
 
            Guides is not necessarily applicable in all instances and 
 
            that in view of the differences of terminology between that 
 
            used by the medical profession as found in the Guides and 
 
            the terminology used in the workers' compensation statues, 
 
            that the Guides is sometimes a doubtful authority.  Lauhoff 
 
            Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986)  The Iowa 
 
            Supreme Court has rejected the argument that any particular 
 
            set of guides or method of rating scheduled disabilities is 
 
            to be applied.  Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 
 
            598 (1936)  A number of recent agency decisions have pointed 
 
            out that the Guides is not controlling.  Moss v. United 
 
            Parcel Service, file number 881576 (App. Decn. September 26, 
 
            1994); Reiland v. Rose's Wood Products, file number 937842 
 
            (Arb. Decn. January 13, 1994); Westcott-Riepma v. 
 
            K-Products, file number 1011173 (Arb. Decn. July 19, 
 
            1994); Gomez v. Armstrong Tire and Rubber Co., file numbers 
 
            1043115 and 921073 (Arb. Decn. September 14, 1994); Greenlee 
 
            v. Cedar Falls Comm. Schools, file number 934910 (Arb. Decn. 
 
            June 18, 1993).
 
            
 
                 The loss that is to be compensated is the individual's 
 
            loss of use of the affected member based upon a reasonable 
 
            assessment of the loss of use for the types of activities 
 
            for which people customarily use the affected members.  It 
 
            is the loss of use in the relation to the activities of 
 
            daily life, including employment activity which controls, 
 
            not an arbitrary rating which is produced by measuring only 
 
            certain factors considered in certain portions of the 
 
            Guides.  The impact on a person's earning capacity is 
 
            not a factor to be measured.  Graves v. Eagle Iron Works, 
 
            331 N.W.2d 116 (Iowa 1983)  The impact, however, that the 
 
            injury has upon a person's ability to perform activities 
 
            commonly performed in employment settings is, however, a 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            factor to be considered.
 
            
 
                 While the Guides strive to achieve uniformity, it does 
 
            so by being arbitrary.  In a case such as this the Guides 
 
            contain at least three different methods of measuring the 
 
            degree of residual impairment.  One method is the range of 
 
            motion and sensation tests which have long been a part of 
 
            the Guides.  A second method is the grip strength method 
 
            which appears at pages 64 and 65 of the fourth edition.  The 
 
            third method appears at table 16 found at page 57 of the 
 
            fourth edition.  Table 16 is specifically addressed to 
 
            entrapment neuropathy conditions, such as carpal tunnel 
 
            syndrome.  The example found at page 56 shows that with 
 
            normal range of motion, normal sensory testing, reduced 
 
            strength and symptoms consisting of infrequent transient 
 
            episodes of numbness in the thumb and index finger that a 10 
 
            percent impairment rating of the upper extremity was 
 
            appropriate.  A similar rating and measurement of disability 
 
            is appropriate in this case.  In a case such as this, namely 
 
            one dealing with entrapment neuropathy, table 16 found at 
 
            page 57 of the fourth edition of the Guides is the preferred 
 
            method of evaluating permanent impairment and disability.  
 
            It is a relatively new addition to the Guides having first 
 
            appeared in the third revised edition.  It is apparently an 
 
            attempt by the medical community to make the impairment 
 
            rating more representative of the actual loss of use of the 
 
            effected member than the rating which commonly occurs based 
 
            upon sensory loss and range of motion.  (That method often 
 
            produces a rating of zero or negligible impairment even 
 
            though significant loss of use is demonstrated.)
 
            
 
                 The rating scheme provided by table 16 at page 57 
 
            appears in this case to provide a reasonably accurate 
 
            assessment of the loss of use of this claimant's left hand.  
 
            Ten percent of the upper extremity is equivalent to 11 
 
            percent of the hand.  According, claimant is entitled to 
 
            receive 20.9 weeks of compensation for permanent partial 
 
            disability representing an 11 percent permanent partial 
 
            disability of her left hand under the provisions of section 
 
            85.34(2)(l).  
 
            
 
                 Claimant also seeks to recovery healing period 
 
            compensation.  
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 It is important in this case that claimant never 
 
            appears to have made a sustained return to full-time regular 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            employment.  She appears to have been in a temporary partial 
 
            disability situation much of the time prior to her 
 
            resignation.  When she chose to resign from her employment 
 
            she did so in accordance with the advice of her authorized 
 
            treating physician.  Accordingly, her refusal to continue to 
 
            perform the work which had been offered by the employer was 
 
            not unreasonable.  Though claimant was performing the work, 
 
            it was not truly suitable since performing the work brought 
 
            about a recurrence of her symptoms.  Claimant is therefore 
 
            not disqualified from receiving further healing period 
 
            benefits commencing with the date of her resignation.  Dr. 
 
            Donohue, the authorized physician, set November 19, 1991 as 
 
            the date of maximum medical improvement.  Accordingly, 
 
            claimant is entitled to recover additional healing period 
 
            running from August 12, 1991 through November 19, 1991, a 
 
            span of 14 2/7 weeks.  Her entitlement to permanent partial 
 
            disability compensation is payable commencing November 20, 
 
            1991.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Judy A. 
 
            Christensen fourteen and two-sevenths (14 2/7) weeks of 
 
            compensation for healing period at the stipulated rate of 
 
            two hundred one and 05/100 dollars ($201.05) per week 
 
            payable commencing August 12, 1991.
 
            
 
                 It is further ordered that defendants pay Judy A. 
 
            Christensen twenty point nine (20.9) weeks of compensation 
 
            for permanent partial disability payable commencing November 
 
            20, 1991.
 
            
 
                 All the foregoing weekly compensation benefits are past 
 
            due and owing and shall be paid to claimant in a lump sum 
 
            together with interest pursuant to section 85.30.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Signed and filed this __________ day of October, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. George W. Wittgraff
 
            Attorney at Law
 
            223 Pine St
 
            PO Box 535
 
            Cherokee, Iowa  51012
 
            
 
            Mr. David Scott
 
            Attorney at Law
 
            407 Grand Ave
 
            PO Box 3046
 
            Spencer, Iowa  51301
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                           1801.1 1802 1803 1803.1 3700
 
                                           Filed October 31, 1994
 
                                           Michael G. Trier
 
            
 
                            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            JUDY A CHRISTENSEN, 
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File No. 962382
 
            BEEF SPECIALIST OF IOWA, 
 
                                          A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            HARTFORD INSURANCE CO.,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            1801.1 1802
 
            Where claimant resigned from her position in accordance with 
 
            the recommendations of the authorized physician during a 
 
            time when she was receiving temporary partial benefits, the 
 
            resignation was held to not disqualify her from further 
 
            healing period benefits.  
 
            
 
            1803 1803.1
 
            Claimant with residual symptoms following carpal tunnel 
 
            surgery awarded 11 percent permanent partial disability of 
 
            the left hand in accordance with table 16 of fourth edition 
 
            of the AMA Guides.  Both treating physicians have rated 0 
 
            impairment.  One expressly stated that the Guides made no 
 
            provision for pain of loss of strength, which statement is 
 
            of course incorrect.  
 
            
 
            3700
 
             Counsel admonished for placing irrelevant, immaterial and 
 
            repetitious documents into evidence.  The offending 
 
            documents were removed from the record and returned to 
 
            claimant's counsel.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             52500; 52700; 52909
 
                                             Filed August 5, 1994
 
                                             Marlon D. Mormann
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            MELISSA REED,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                               File No. 962488
 
            FURNAS ELECTRIC COMPANY, 
 
                      
 
                 Employer,                    E X P E D I T E D
 
                      
 
            and                                D E C I S I O N
 
                      
 
            LIBERTY MUTUAL INSURANCE 
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            
 
            
 
            52500; 52700; 52909
 
            Claimant sought treatment from Michael Taylor, M.D., a Des 
 
            Moines psychiatrist, without authorization from the 
 
            employer.  It was held that all expenses incurred with Dr. 
 
            Taylor prior to the date that the petition was filed were 
 
            not compensable under section 85.27.  Dr. Taylor was 
 
            authorized to provide care as his treatment was more 
 
            reasonably suited to cure claimant's emotional problems 
 
            caused by the work injury.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            MELISSA REED,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 962488
 
            FURNAS ELECTRIC COMPANY, 
 
                      
 
                 Employer,                       E X P E D I T E D
 
                     
 
            and                                    D E C I S I O N
 
                      
 
            LIBERTY MUTUAL INSURANCE 
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            
 
            
 
                           STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in expedited arbitration brought 
 
            by Melissa Reed as a result of injuries received on June 5, 
 
            1990, while employed by Furnas Electric Company.  Claimant 
 
            has requested alternate medical care for psychiatric 
 
            problems resulting from the June 5, 1990 injury.  The 
 
            employer has refused and the issue has been brought forth 
 
            for consideration under section 85.27.
 
            
 
                 This case was heard and fully submitted at Des Moines, 
 
            Iowa, on August 2, 1994.  The record in the proceeding 
 
            consists of claimant's exhibits 1 through 5, and employer's 
 
            exhibits A through F; and, testimony from claimant and Beth 
 
            Hamel Kennedy.  Claimant was represented by Robert Pratt, 
 
            Attorney at Law.  The defendants were represented by Joseph 
 
            Cortese II, Attorney at Law.
 
            
 
                                       ISSUE
 
            
 
                 The sole issue presented for determination is 
 
            claimant's entitlement to alternate medical care under 
 
            section 85.27 and reimbursement for services received from 
 
            Michael J. Taylor, M.D.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony of the witnesses and having 
 
            considered all the evidence in the record, the deputy 
 
            industrial commissioner finds:
 
            
 
                 Claimant, Melissa Reed, received an injury to her upper 
 
            extremities on June 5, 1990.  The employer accepted the 
 
            claim as compensable and provided medical and surgical 
 
            treatment for the upper extremity injuries.  Claimant 
 
            developed a major depressive disorder as a result of the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            surgery and injuries to the upper extremities.  Claimant had 
 
            some preexisting emotional susceptibility to a major 
 
            depressive disorder and had experienced such symptoms in the 
 
            past.  It is found that the injury of June 5, 1990 
 
            aggravated the preexisting emotional problems thereby 
 
            resulting in a compensable illness.
 
            
 
                 On April 7, 1992, claimant sought treatment from 
 
            Michael J. Taylor, M.D., a well-known Des Moines 
 
            psychiatrist.  Claimant did not consult the employer prior 
 
            to engaging in a course of treatment with Dr. Taylor.  
 
            Claimant had no authorization to begin treatment on April 7, 
 
            1992 with Dr. Taylor.
 
            
 
                 Claimant has experienced major depressive symptoms and 
 
            suicidal thoughts as a result of the June 5, 1990 injury.  
 
            Claimant has great confidence in the treatment offered by 
 
            Dr. Taylor and believes that she will improve faster under 
 
            his care.
 
            
 
                 The employer has offered care from James L. Gallagher, 
 
            M.D., a qualified Des Moines psychiatrist.  Claimant first 
 
            saw Dr. Gallagher in December of 1993.
 
            
 
                 It is found that the treatment with Dr. Taylor will 
 
            more reasonably accommodate claimant's problems than 
 
            treatment from Dr. Gallagher.  Claimant has been seeing Dr. 
 
            Taylor for about a year and a half longer than her visits 
 
            with Dr. Gallagher.  Dr. Taylor's treatment seems to be more 
 
            appropriate under the circumstances.  In an emotional 
 
            illness it is of paramount importance that the patient have 
 
            confidence in the treating physician.  In this situation, 
 
            when considering all of the circumstances and the prior 
 
            treatment, it must be found that Dr. Taylor's treatment is 
 
            more suited to treatment of claimant's psychological 
 
            work-related condition.
 
            
 
                 Claimant filed a petition requesting section 85.27 
 
            benefits for the psychological condition along with other 
 
            requests on January 14, 1994.  This appears to be the first 
 
            request made by claimant for reimbursement and a change in 
 
            authorized treating physician for the psychological 
 
            problems.
 
            
 
                         REAONSING AND CONCLUSIONS OF LAW
 
            
 
                 The issues presented for determination are under 
 
            section 85.27.
 
            
 
                 The first issue is whether claimant should be allowed 
 
            to treat with Dr. Taylor for her psychological problems.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            denied liability for the injury.  Iowa Code section 85.27.  
 
            Holbert v. Townsend Engineering Co., Thirty-second Biennial 
 
            Report of the Industrial Commissioner 78 (Review-reopen 
 
            1975).
 
            
 
                 It is held that claimant should be allowed to see Dr. 
 
            Taylor for treatment of her psychological illness caused by 
 
            the June 5, 1990 work injury.  Considering claimant's 
 
            confidence in Dr. Taylor and the length of time that she has 
 
            been treating with him at her own expense, it is the most 
 
            reasonable and appropriate course of treatment under the 
 
            circumstances.  Therefore, the request for alternate medical 
 
            care is granted and future treatment shall be with Dr. 
 
            Taylor.
 
            
 
                 The second issue is whether past medical bills incurred 
 
            with Dr. Taylor should be compensable under section 85.27.  
 
            It is held that medical bills incurred prior to the filing 
 
            of the petition on January 14, 1994 are not compensable.  
 
            Claimant had made no request from the employer for 
 
            authorization.  Furthermore, claimant undertook a course of 
 
            treatment with Dr. Taylor with full knowledge that she would 
 
            be responsible for those bills unless an order was entered 
 
            by the industrial commissioner or authorization given by the 
 
            employer.  Since the employer failed to give authorization 
 
            and the first formal request for such care came with a 
 
            petition filed January 14, 1994, all bills prior to the 
 
            filing of the petition are claimant's responsibility.
 
            
 
                                       ORDER
 
            
 
                 IT IS, THEREFORE, ORDERED that defendants Furnas 
 
            Electric Company and Liberty Mutual Insurance Company shall 
 
            pay for claimant's reasonable and necessary medical and 
 
            transportation expenses under section 85.27 incurred with 
 
            Michael J. Taylor, M.D., on and after January 14, 1994.
 
            
 
                 IT IS FURTHER ORDERED that Dr. Taylor is the authorized 
 
            treating physician for claimant's psychological illness 
 
            caused by the June 5, 1990 work injury.
 
            
 
                 IT IS FURTHER ORDERED that costs of this action, if 
 
            any, are assessed against the defendants pursuant to rule 
 
            343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of August, 1994.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Robert W Pratt
 
            Attorney at Law
 
            6959 University Ave
 
            Des Moines IA 50311
 
            
 

 
            
 
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            Mr Joseph S Cortese II
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines IA 50309