BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            LARAE JEAN PEDERSEN,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          : File Nos. 965283 & 1003241
 
            HUMBOLDT COUNTY MEMORIAL      :
 
            HOSPITAL,                     :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            FARM BUREAU MUTUAL INS.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This decision concerns two proceedings in arbitration 
 
            brought by LaRae Jean Pedersen on account of a binaural 
 
            hearing loss which she has experienced as a result of a 
 
            hepatitis vaccination that was administered to her as part 
 
            of her employment duties as a nurse at Humboldt County 
 
            Memorial Hospital.  The parties have agreed that Larae has a 
 
            48 percent loss of hearing in both ears.  Larae also 
 
            contends that she has sustained a brain injury which removes 
 
            this case from section 85.34(2)(r).  The parties agree that 
 
            the rate of compensation is to be computed under section 
 
            85.36(10).  Defendants contend that the only earnings to be 
 
            considered are the earnings from employment with Humboldt 
 
            County Memorial Hospital.  Larae contends that earnings from 
 
            the family farm and other businesses should be included in 
 
            determining the rate of compensation.  Claimant also seeks a 
 
            rehabilitation benefits pursuant to section 85.70, interest, 
 
            a penalty pursuant to section 86.13 and costs of the action.
 
            
 
                 The case was heard at Fort Dodge, Iowa, on February 4, 
 
            1994.  The record consists of testimony from Robert A. 
 
            Dotson, Carla Pedersen, John Pierce, Martin Zaugg, Ellen 
 
            Schorzmann, Alan Pedersen, LaRae Pedersen, and Bill Faust.  
 
            The record also contains claimant's exhibits A and B and 
 
            defendants' exhibits I, II, III, and IV.  
 
            
 
                                FINDINGS OF FACT
 
            
 
                 LaRae Pedersen is married to Alan Pedersen.  Alan's 
 
            family operates a somewhat complex, diversified family 
 
            business which includes Alan, LaRae, Alan's brother, and 
 
            other family members as well as Alan's parents.  The 
 

 
            
 
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            principle portion of the business is farming but other 
 
            operations are also included.  These include an automobile 
 
            parts store, antique shop and rental properties.  Alan and 
 
            LaRae also have separate rental properties which are not 
 
            part of the family business arrangement.  Different members 
 
            of the family have principle responsibility for different 
 
            portions of the business operations.  Alan Pedersen was 
 
            principally engaged in farming while his brother, Gary, 
 
            operated the auto parts store.  Alan's father carried 
 
            principle responsibility for maintaining equipment while 
 
            Carla Pedersen, Alan's mother, acted as general manager of 
 
            the entire operation.  LaRae has performed a variety of 
 
            functions including managing rental properties and general 
 
            assistance to Alan and other family members.  A considerable 
 
            amount of the profits from the businesses were received by 
 
            the various family members in kind or through having the 
 
            business pay some of their living expenses.  A formula 
 
            existed for dividing some of the business profits through a 
 
            somewhat complex formula.  Robert A Dotson, an attorney who 
 
            was involved in establishing the organization, testified at 
 
            length regarding the operation of the family businesses.  
 
            Dotson applied a formula developed and published by Iowa 
 
            State University which provides a means of apportioning farm 
 
            profits between return on investment and return to labor.  A 
 
            portion characterized as return to labor is intended to 
 
            represent the value of the management and physical labor 
 
            contributed by the farm operators to the operation.  
 
            According to Dotson the figure of $26,000 per year was an 
 
            appropriate amount to be allocated as the value of the 
 
            management and labor provided by Alan and LaRae during each 
 
            of calendar years 1989 and 1990.  Dotson also noted rental 
 
            income of $5,825 in 1989 and $6,937 in 1990 which again were 
 
            to be divided between Alan and LaRae.  According to Dotson 
 
            his computations did not factor out any work which was 
 
            performed by other family members and the calculations 
 
            likewise contain no factor for distinguishing between 
 
            profitable years and unprofitable years.  
 
            
 
                 The claimant's income tax returns are in evidence as 
 
            part of exhibit B.  Alan and LaRae's 1989 Federal Income Tax 
 
            Return shows their adjusted gross income to have been 
 
            slightly over $7000.  (exhibit B, page 35).  Of that amount, 
 
            more than $4000 resulted from LaRae's employment at Humboldt 
 
            County Memorial Hospital.  Four thousand dollars was 
 
            reported as wages which were paid to Alan by Gerald D. 
 
            Pedersen.  The return shows a business loss of $500, rental 
 
            losses of nearly $11,000 and farm income of approximately 
 
            $10,000.  The 1990 income tax return shows LaRae's wages 
 
            from Humboldt County Memorial Hospital in the amount of 
 
            approximately $3000, a business loss of nearly $2000, rental 
 
            losses exceeding $12,000, and farm income of approximately 
 
            $1500.  The adjusted gross income for 1990 is shown as a 
 
            loss of nearly $9500.  (ex. B, p. 64).
 
            
 
                 According to testimony given at hearing, LaRae was 
 
            covered by a workers' compensation insurance policy which 
 

 
            
 
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            had been purchased for the Pedersen family business 
 
            operations.  The policy was not offered for evidence.  No 
 
            evidence regarding the way in which the premium for that 
 
            policy was computed was offered.  It is not known whether or 
 
            not LaRae was specifically named on the policy or whether 
 
            testimony of her being covered was accurate or an assumption 
 
            of some sort. 
 
            
 
                 During the 12 calendar months preceeding LaRae's 
 
            injury, her gross earnings from Humboldt County Memorial 
 
            Hospital total $4,344.52.  There is no evidence that she was 
 
            employed by any other employer during the 12 calendar months 
 
            preceeding September 6, 1990, the date of injury.
 
            
 
                 The medical records in this case show that LaRae is 
 
            afflicted by tinnitus as well as her hearing loss.  There is 
 
            evidence that she has balance and memory problems.  There is 
 
            no objective measurement in the record of the degree or 
 
            extent of her tinnitus, headaches, balance or memory 
 
            problems.  It may be that those types of problems are not 
 
            capable of objective measurement.  According to LaRae's 
 
            testimony, the medical records and the testimony of other 
 
            witnesses, LaRae's tinnitus, headaches, balance and memory 
 
            problems appear to be troublesome but are not independently 
 
            disabling.  The only reason given by LaRae for choosing not 
 
            to return to work at Humboldt County Memorial Hospital was 
 
            her hearing impediment.  No physician in the record of this 
 
            case has indicated that LaRae has any disability on account 
 
            of her tinnitus, headaches, balance or memory problems.
 
            
 
                 LaRae was paid weekly compensation benefits at the 
 
            times and in the amounts noted on the attachment to the 
 
            hearing report which was filed with the undersigned at the 
 
            commencement of the hearing.
 
            
 
                 With regard to the cause and onset of the hearing loss, 
 
            it was stipulated at the time of hearing that the hepatitis 
 
            vaccination was responsible.  Claimant's hearing loss was 
 
            first noted in April 1990 at which time the impression of 
 
            F.E. Gonzales, M.D., was that it may very well represent a 
 
            congenital hearing loss.  No reference to immunizations 
 
            appears.  (ex. I, p. 1).  In a report dated November 9, 
 
            1990, Bruce J. Gantz, M.D., a professor at the University of 
 
            Iowa Hospitals and Clinics, issued a report stating that 
 
            there are no known reports of hepatitis vaccination inducing 
 
            sudden deafness.  (ex. I, p. 2).  Eventually, on November 6, 
 
            1991, Robert R. Updegraff, M.D., issued a report in which he 
 
            stated, "...it is my considered conclusion, as best I am 
 
            able to relate at this time, that Mrs. Pedersen's problem(s) 
 
            are causally related to her hepatitis vaccinations."  Later 
 
            in that same report, Dr. Updegraff states:
 
            
 
                    In one of our progress notes you may note that 
 
                 Dr. McCabe was wondering whether or not there 
 
                 might be a causal relationship with hepatitis 
 
                 vaccinations.  We are all in quite agreement that 
 
                 this is a most unusual case.  To my knowledge, Dr. 
 
                 McCabe has not seen a similar case and, I believe, 
 
                 Dr. Gantz mentioned such to Dr. Delucca.  I have 
 
     
 
            
 
            
 
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                 not seen a similar case.
 
            
 
                    After reflection and thorough discussions, and 
 
                 again visit with Dr. McCabe within the past month 
 
                 or so regarding all findings and histories--our 
 
                 considered opinion is there exists a reasonable 
 
                 causal relationship to the three hepatitis 
 
                 vaccinations (with Mrs. Pedersen's ear symptoms.)
 
            
 
                 In that same report of November 6, 1991, Dr. Updegraff 
 
            assigned claimant a rating of impairment consisting of 1.88 
 
            percent for the left ear, 33 percent for the right and a 
 
            binaural impairment of 6.57 percent.  (ex. A, p. 12).
 
            
 
                 The stipulation of the parties shows that on November 
 
            18, 1991, checks were issued to claimant with one in the 
 
            amount of $4,682.70 representing 58.286 weeks of healing 
 
            period compensation.  The second was issued in the amount of 
 
            $803.40 representing 10 weeks of permanent partial 
 
            disability compensation and a third was issued in the amount 
 
            of $344.34 representing 4.286 weeks of compensation pursuant 
 
            to an auxier notice.  In the hearing report the parties 
 
            stipulated that claimant's entitlement to healing period ran 
 
            from September 17, 1990 through October 30, 1990, and that 
 
            the entitlement to permanent partial disability benefits 
 
            commences on November 1, 1991.  It is noted that the date of 
 
            October 31, 1991, is omitted.  That day will be considered 
 
            by the undersigned to be a day of healing period 
 
            compensation entitlement.  The healing period span of time 
 
            is therefore 58 4/7 weeks.  According to the stipulation 
 
            attached to the hearing report 58 2/7 weeks of healing 
 
            period benefits were paid, leaving a shortfall of 2/7 weeks.  
 
            On that same date, 10 weeks of permanent partial disability 
 
            compensation benefits were paid.  The 6.75 percent rating 
 
            provided by Dr. Updegraff provides an entitlement to 11.498 
 
            weeks of compensation under the provisions of section 
 
            85.34(2)(r).  The shortfall is therefore 1.498 weeks of 
 
            compensation for permanent partial disability based upon Dr. 
 
            Updegraff's original rating.  Defendants also paid 4.286 
 
            weeks pursuant to an auxier notice.  Since the payment was 
 
            made on November 18, 1991, and payments were due running 
 
            through January 1992, there was no reason to pay an 
 
            additional 30 days of benefits.  In summary, the total 
 
            amount owed by defendants to LaRae Pedersen on November 18, 
 
            1991, was 58 4/7 weeks of healing period compensation and 2 
 
            4/7 weeks of permanent partial disability compensation.  The 
 
            balance of the permanent partial disability entitlement had 
 
            not yet accrued.  This totals 61 1/7 weeks or $4,912.23.  
 
            All of the payments paid were past due and owing.  Sixty-one 
 
            and one-sevenths weeks round to 61 weeks.  According to the 
 
            10 percent interest table found at page 145 of the 1990-91 
 
            Guide to Iowa Worker's Compensation Claim Handling, the 
 
            appropriate factor is 3.5192.  When multiplied by $80.34 the 
 
            result is $282.73 of accrued interest.  The amount due and 
 
            owing to LaRae Pedersen on November 18, 1991 was therefore 
 
            $5,194.96.  The payments paid total $5,830.44.  The balance 
 
            of $635.48 was therefore applied to unaccrued permanent 
 

 
            
 
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            partial disability compensation.  This amounts to 7.910 
 
            weeks.  That amount of permanent partial disability pays the 
 
            benefits due through January 13, 1992.  
 
            
 
                 The additional permanent partial disability established 
 
            by the stipulation of the parties in this case was therefore 
 
            due and payable, for purposes of computing interest, in 
 
            weekly payments commencing on January 14, 1992.  The parties 
 
            stipulated at hearing that claimant's entitlement to 
 
            compensation under section 85.34(2)(r) was 84 weeks of 
 
            benefits.  The payments paid on November 18, 1991, satisfied 
 
            10.196 weeks of permanent partial disability compensation 
 
            leaving 73.804 weeks unpaid.  For purposes of computing 
 
            interest, the additional entitlement was payable commencing 
 
            January 14, 1992.  Those 73.804 weeks compute to a total 
 
            value of $5,929.41.  The next payments paid to claimant were 
 
            paid on February 2, 1994, in the total amount of $6,619.41.  
 
            Seventy-three point eight zero four weeks is equivalent to 
 
            73 6/7 weeks.  That amount expires on June 13, 1993.  From 
 
            June 13, 1993 through February 2, 1994, is a span of 33 3/7 
 
            weeks.  
 
            
 
                 During the amount of time when permanent partial 
 
            disability compensation benefits were due running from 
 
            January 14, 1992 through June 13, 1993, interest accrued.  
 
            The appropriate factor is 5.1942.  When multiplied by the 
 
            rate of $80.34 per week, the interest which accrued is 
 
            $417.30.  The sum of $5,929.41 was unpaid for a period of 33 
 
            3/7 weeks.  This amounts to 234 days.  Interest for one year 
 
            on that amount is $592.94.  The amount attributable to 234 
 
            days is $380.13.  Accordingly, as of February 2, 1994, 
 
            defendants owed LaRae Pedersen the sum of $5,929.41 in 
 
            permanent partial disability compensation benefits and 
 
            $797.43 in interest.  This totals $6,726.84.  Since their 
 
            payment was $6,619.41, claimant was underpaid by the sum of 
 
            $107.43.  That amount continues to draw interest at the rate 
 
            of 10 percent per annum computed from February 2, 1994, 
 
            until the date it is actually paid.  The per diem rate of 
 
            interest accrual is $.03 per day.
 
            
 
                 The amount of permanent partial disability compensation 
 
            in this case has been established by stipulation.  It should 
 
            be noted that agency rule 343 IAC 2.4 provides that payments 
 
            made in accordance with the Guides to the Evaluation of 
 
            Permanent Impairment, shall be recognized by the industrial 
 
            commissioner as a prima facie showing by the employer with 
 
            section 85.34(2)(r) of the Iowa Workers' Compensation Act.  
 
            It should be noted that those guides provide for a 25 
 
            decibel threshold or fence as is discussed by the physicians 
 
            in this case when evaluating the extent of the claimant's 
 
            hearing loss.  Reasonable arguments can be made either way 
 
            with regard to whether or not that 25 decibel fence should 
 
            be applied.  There is no need to determine the answer in 
 
            this decision since the entitlement is established by 
 
            stipulation.  There is sufficient validity to support the 
 
            application of the 25 decibel fence to make it quite 
 
            reasonable for defendants to have relied upon the initial 
 

 
            
 
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            evaluation made by Dr. Updegraff and to have continued to 
 
            rely upon that rating despite the subsequent higher ratings.  
 
            The issue over the manner of computing the entitlement is a 
 
            fairly debatable issue of law and it would not have been 
 
            unreasonable for defendants to have continued to assert that 
 
            position as a litigated issue at the time of hearing in this 
 
            case.
 
            
 
                 The payments paid to claimant on November 18, 1991, 
 
            would have been adequate to pay all accrued liability for 
 
            healing period and permanent partial disability 
 
            compensation, in accordance with Dr. Updegraff's initial 
 
            rating, if interest were to have been excluded.  When 
 
            interest is included, the payment paid on November 18, 1991, 
 
            was short by 1.302 weeks, an amount equal to $104.60.  The 
 
            laws and rules of the industrial commissioner with regard to 
 
            interest and the simple math used in computing it are 
 
            sufficiently clear and well established that there appears 
 
            to be no reasonable basis for having underpaid the claim on 
 
            November 18, 1991, based upon the facts which then exited, 
 
            particularly when those facts are viewed in the light most 
 
            favorable to the defendants.  It was clearly unreasonable to 
 
            have not paid the accrued interest at that time.  The amount 
 
            unreasonably denied on November 18, 1991, was $104.60.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 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).
 
            
 
                 In this case, the claimant has problems other than her 
 
            loss of hearing.  Those problems do not, however, appear to 
 

 
            
 
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            be disabling.  Her disability seems to be solely 
 
            attributable to her loss of hearing.  There is much 
 
            authority for the proposition that tinnitus is not to be 
 
            compensated as a scheduled disability.  1B Larson, Workmen's 
 
            Compensation Law, 41.55; Dotolo v. FMC Corp., 375 N.W.2d 25 
 
            (Minn 1985); Hughes v. Pacific Northwest Bell, 61 Or. App. 
 
            566, 658 P2d 548 (1983).  This would seem reasonable because 
 
            tinnitus typically has little impact on hearing, though it 
 
            is typically seen in association with a loss of hearing.  It 
 
            is particularly reasonable in the sense that audiograms 
 
            which measure the extent the loss of hearing do not measure 
 
            tinnitus.  Nevertheless, this agency has held that tinnitus 
 
            is to be compensated under the schedule.  Cannon v. Keokuk 
 
            Steel Casting, file number 795331 (App. Dec. Jan. 27, 1988).  
 
            When there is an injury to a scheduled member which an 
 
            individual wishes to have compensated beyond the schedule, 
 
            it is necessary to introduce evidence which proves, by a 
 
            preponderance of the evidence, that there is disability in 
 
            some part of the body that is not within the schedule.  Mere 
 
            aches, pains, discomforts or other minor abnormalities are 
 
            not sufficient.  It is necessary that those abnormalities be 
 
            of sufficient magnitude to be disabling.  It is therefore 
 
            concluded that in this case the evidence does not show 
 
            claimant to have any disability other than her loss of 
 
            hearing.  The compensation for permanent partial disability 
 
            is therefore to be computed pursuant to section 85.34(2)(r).  
 
            
 
                 A major issue in this case is the rate of compensation.  
 
            The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
            
 
                 The simple answer to this case would be to state that 
 
            the case Winters v. John V. Te Slaa, I Industrial 
 
            Commissioner Report 367 (App. Dec. 1981) controls.  The 
 
            essence of that decision is that when looking to section 
 
            85.36(10) the term "employment" does not include 
 
            self-employment.  It can quite reasonably be urged that 
 
            self-employment is in fact employment.  Any one who has been 
 
            self-employed would tend to agree with that assertion.  
 
            Another term which appears in section 85.36(10) is 
 
            "earnings."  Section 85.61 defines that terms "gross 
 
            earnings" and "spendable weekly earnings" is clear that when 
 
            looking at section 85.61 there is a requirement for payments 
 
            and also a reference to deduction or withholding for taxes.  
 
            This implies that the term "earnings" means taxable earnings 
 
            of the type a person earns when employed by an employer.  
 
            When claimant's income tax returns for 1989 and 1990 are 
 
            reviewed, it becomes apparent that, if claimant's earnings 
 
            from Humboldt County Memorial Hospital were to be excluded 
 
            and her husband's earnings are shown on the W2 from Gerald 
 
            V. Pedersen were excluded, that there would be no taxable 
 
            earnings for 1989 or 1990.  Accordingly, the earnings from 
 
            self-employment which produces a net operating loss cannot 
 
            constitute earnings to be used in computing the rate of 
 
            compensation because there are no earnings.  
 

 
            
 
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                 There is evidence in the record of this case that 
 
            claimant was covered for purposes of workers' compensation 
 
            by the family business.  The family business operation can 
 
            best be described as some form of a partnership.  According 
 
            to the record it is not incorporated.  In view of such 
 
            claimant would be exempt from workers' compensation coverage 
 
            under section 85.1.  She is one of those individuals who, 
 
            however, could be covered if she were to be specifically 
 
            included in a policy pursuant to section 85.1(6).  From the 
 
            record made in this case it cannot be determined whether or 
 
            not she was specifically included or to what extent.  
 
            Section 85.36(11) provides a method for computing the weekly 
 
            rate of compensation for individuals such as claimant if the 
 
            compensation insurance coverage has been purchased.  It is 
 
            well known that the premium charged for workers' 
 
            compensation insurance is based, largely, upon the earnings 
 
            of the individuals covered by the insurance policy.  
 
            Claimant chose to not offer the policy into evidence at the 
 
            hearing.  It is therefore not possible to determine whether 
 
            or not she was covered by workers' compensation insurance or 
 
            the rate of earnings used to compute the premium.  The legal 
 
            conclusion from a family member is not binding.  Further, 
 
            the method of computing the premium would be expected to 
 
            have bearing upon the rate of compensation to be paid for 
 
            any injury that occurred in the course of employment for the 
 
            family business.  It would do no violence to the workers' 
 
            compensation system to include the earnings used to compute 
 
            the premium for a policy issued in accordance with sections 
 
            85.1(6) and 85.36(11) since premiums are being collected 
 
            commensurate with the benefits to be paid.  It does 
 
            violence, however, to the workers' compensation system to 
 
            require benefits to be paid based upon earnings which were 
 
            not in some manner subject to a workers' compensation 
 
            premium.  Accordingly, in this case, since claimant did not 
 
            have any earnings except for those from Humboldt County 
 
            Memorial Hospital and because there is no record showing a 
 
            rate of earnings upon which premiums were paid pursuant to 
 
            sections 85.1(6) and 85.36(11), the rate of compensation 
 
            needs to be based solely upon claimant's earnings with 
 
            Humboldt County Memorial Hospital.  The earnings are shown 
 
            at defendants' exhibit II.  The rate of compensation is 
 
            therefore $80.34 per week since those earnings average 
 
            $86.89 per week and claimant is married with an entitlement 
 
            to five exemptions.
 
            
 
                 Weekly compensation benefits are due and payable weekly 
 
            commencing on the eleventh day after the injury under Iowa 
 
            Code section 85.30.  Compensation for permanent partial 
 
            disability is due and payable commencing at the end of the 
 
            healing period under Iowa Code section 85.34(2).  If any 
 
            type of weekly compensation is not paid at the time it comes 
 
            due, it accrues interest pursuant to Iowa Code section 
 
            85.30.  Teel v. McCord, 394 N.W.2d 405 (Iowa 1986); Farmers 
 
            Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 
 
            1979).
 

 
            
 
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                 As indicated by claimant in her brief, the United 
 
            States Rule is applicable.  Christensen v. Snap-On Tools 
 
            Corp., file number 936799 (App. Decn April 21, 1994).  By 
 
            virtue of the Guide to Iowa Worker's Compensation Claim 
 
            Handling, published by the Division of Industrial Services 
 
            the methods used for computing interest in accordance with 
 
            that guide are correct and permissible.  That is not to say 
 
            that other methods might not be equally accurate or legally 
 
            sufficient but it is clear that computations made in 
 
            accordance with that guide are deemed correct.  It should be 
 
            noted that the differences that result when other methods of 
 
            computing interest are used turn out to be quite minimal 
 
            when compared to the interest computed in accordance with 
 
            the guide.  It should further be noted that the interest is 
 
            simple interest.  It is not to be compounded.  Compounding 
 
            occurs only at the time when payments are paid with the 
 
            first portion of the payment being applied to accrued 
 
            interest and the balance to the principal, namely the 
 
            accrued entitlement to weekly compensation benefits.  Any 
 
            shortage leaves the accrued portion of weekly benefits 
 
            unpaid and drawing interest which is to be satisfied at the 
 
            next time any payments are paid.  The undersigned has 
 
            completed computations of entitlement and interest as set 
 
            forth in the "Findings of Fact" portion of this decision.  
 
            Accordingly, it is determined that when all payments are 
 
            considered, together with interest, that as of February 2, 
 
            1994, the claimant was owed the sum of $107.43.  That sum 
 
            continues to accrue interest until the time that it is paid.  
 
            The per diem amount is $.03 per day.
 
            
 
                 Section 86.13 permits an award of up to 50 percent of 
 
            the amount of benefits delayed or denied if a delay in 
 
            commencement or termination of benefits occurs without 
 
            reasonable or probable cause or excuse.  The standard for 
 
            evaluating the reasonableness of defendants' delay in 
 
            commencement or termination is whether the claim is fairly 
 
            debatable.  Where a claim is shown to be fairly debatable, 
 
            defendants do not act unreasonably in denying payment.  See 
 
            Stanley v. Wilson Foods Corp., File No. 753405 (App. August 
 
            23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No. 
 
            818849 (App. November 1, 1989).
 
            
 
                 It is principally a matter of semantics with regard to 
 
            whether or not one applies a "fairly debatable" test.  It is 
 
            clear that the standard for a penalty under section 86.13 
 
            does not require any showing of bad faith, wanton or willful 
 
            misconduct.  Mere negligence is sufficient.  Boylan v. 
 
            American Motorist Ins. Co., 489 N.W.2d 742 (Iowa 1992).  
 
            Since this matter deals with workers' compensation, the 
 
            claim adjusting decisions are typically made by experienced 
 
            workers' compensation adjusters and claim handlers.  The 
 
            standard to be applied is not that of a lay person or of 
 
            someone who has a very limited knowledge of the workers' 
 
            compensation laws and practices within this agency.  It is 
 
            determined that it was not unreasonable for defendants to 
 
            rely upon the original impairment rating from Dr. Updegraff 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            when they made payments to claimant on November 18, 1991.  
 
            It was, however, unreasonable for defendants to have 
 
            underpaid the claim at that point in time.  As previously 
 
            indicated, the underpayment was in the amount of $104.60.  
 
            It is appropriate to assess a penalty of $50 for that 
 
            underpayment.  The proper method of computing interest and 
 
            of computing a scheduled disability entitlement is so simple 
 
            that there is no reasonable justification for an experienced 
 
            workers' compensation adjuster or claim handler to have 
 
            miscalculated.  With regard to the failure to pay a higher 
 
            amount voluntarily until February 2, 1994, such was not 
 
            unreasonable.  There was a very substantial question of law, 
 
            which as of this point in time remains unanswered, with 
 
            regard to whether or not a 25 decibel fence should be 
 
            employed when computing hearing loss for purposes of section 
 
            85.34(2)(r).  Since that question of law exists and is 
 
            considered by the undersigned to be a very bona fide, good 
 
            faith question, the failure to pay the higher impairment 
 
            ratings which did not apply a 25 decibel fence is not 
 
            unreasonable.  There is therefore no basis for imposition of 
 
            a penalty.  
 
            
 
                 Once a stipulation regarding the extent of permanent 
 
            disability was entered into, it became incumbent upon 
 
            defendants to pay that amount promptly.  Since it was 
 
            established by stipulation it was within the realm of the 
 
            parties to have negotiated with regard to whether or not 
 
            interest would be applied.  While interest has been held to 
 
            apply in view of the lack of a stipulation to the contrary, 
 
            it was not unreasonable under these circumstances for 
 
            defendants to have failed to pay the full amount owed on 
 
            February 2, 1994.  In fact, the underpayment is only 
 
            $107.43.  That amount is nearly within the range of 
 
            computational variations or methods.  The underpayment on 
 
            February 2, 1994, is not considered by the undersigned to be 
 
            unreasonable and will not be used as a basis for imposing a 
 
            penalty under section 86.13.
 
            
 
                 Claimant also seeks to recover costs.  She is clearly 
 
            entitled to recover the filing fee of $65 and the fee for 
 
            service of the original notice in the amount of $4.58.  The 
 
            charge of $3685 for a medical report is quite a bit larger 
 
            than that customarily seen in this agency.  The report is a 
 
            combination of treatment, litigation preparation and 
 
            consultation with both parties.  Normally, the amount of an 
 
            expert witness fee that can be assessed as costs is limited 
 
            to $150 per day.  (section 622.72).  Dowell v. Wagler, file 
 
            number 880145 (App. Dec. Nov. 26, 1991).  The industrial 
 
            commissioner has applied that same standard to the amount of 
 
            charges for a report which can be assessed as part of the 
 
            costs under the agency rules.  Goodrich v. Schafbuch Farms 
 
            Inc., file number 914987 (App. Dec. June 30, 1993).  It is 
 
            noted that assessment of costs, is, discretionary.  (section 
 
            86.40).  It is deemed appropriate in this case to assess the 
 
            charges from Dr. Updegraff 50-50 between the parties.  Of 
 
            the $3685 charged by Dr. Updegraff, claimant shall pay 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            $1,842.50 and defendants shall pay $1,842.50.  Claimant 
 
            shall also be entitled to recover from defendants as costs 
 
            the additional sum of $150.  The payment for costs to be 
 
            paid by defendants to claimant is therefore $219.58.
 
            
 
                 It is concluded that all of the payments due in this 
 
            case are due in file number 965283.  File number 1003241 is 
 
            a duplication.  There is but one injury.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay LaRae Jean 
 
            Pedersen pay one hundred seven and 43/100 dollars ($107.43) 
 
            for the balance of her unpaid permanent partial disability 
 
            compensation.  Defendants shall pay interest on that amount 
 
            computed from February 2, 1994, at the rate of three cents 
 
            ($.03) per day until such principal and interest is fully 
 
            paid.  
 
            
 
                 It is further ordered that defendants pay LaRae Jean 
 
            Pedersen fifty dollars ($50) as a penalty under the fourth 
 
            unnumbered paragraph of section 86.13 based upon the failure 
 
            to properly calculate, compute and pay weekly compensation 
 
            for healing period and scheduled permanent partial 
 
            disability and accrued interest on November 18, 1991.  The 
 
            fifty dollar ($50) penalty is payable the date of this 
 
            decision and thereafter draws interest pursuant to section 
 
            85.30.
 
            
 
                 It is further ordered that defendants pay to claimant 
 
            the costs in the amount of two hundred nineteen and 58/100.  
 
            It is further ordered that the fees of Dr. Updegraff in the 
 
            amount of three thousand six hundred eighty five dollars 
 
            ($3685) shall be divided equally between the parties with 
 
            each to pay one thousand eight hundred forty-two and 50/100 
 
            dollars ($1,842.50).
 
            
 
                 It is further ordered that file number 1003241 is 
 
            dismissed as it is a duplication of the injury which has 
 
            been found to be compensable in this case.  All payments in 
 
            this case are to be paid under file number 965283.
 
            
 
                 It is further ordered that defendants file claim 
 
            activity reports as requested by this agency.
 
            
 
                 Signed and filed this __________ day of May, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Mark Soldat
 
            Attorney at Law
 
            714 E State St
 
            Algona, Iowa  50511
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
            Mr. William D. Scherle
 
            Attorney at Law
 
            8th Floor Fleming Bldg
 
            218 6th Ave
 
            Des Moines, Iowa  50309
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                          1108.30 1803.1 2208 3001 2907 
 
                                          3800 4000.2
 
                                          Filed May 31, 1994
 
                                          Michael G. Trier
 
                 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            LARAE JEAN PEDERSEN,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                          File Nos. 965283 & 1003241
 
            HUMBOLDT COUNTY MEMORIAL 
 
            HOSPITAL, 
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            FARM BUREAU MUTUAL INS., 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            1108.30 1803.1 2208
 
            
 
            Claimant experienced a bilateral loss of hearing as a result 
 
            of an immunization which was administered to her as part of 
 
            her employment.  She also had complaints of tinnitus, slight 
 
            loss of balance, memory loss and headaches which were not 
 
            well corroborated medically.  It was held that the injury 
 
            was limited to the schedule under 85.34(2)(r).
 
            
 
            3001
 
            Claimant worked part-time and was self-employed in a family 
 
            farming operation.  The farming operation had shown a loss.  
 
            It was held that there were no earnings from self-employment 
 
            to be used in getting the rate of compensation above that 
 
            which was provided by the earnings from the defendant 
 
            employer.  There was evidence that claimant was covered by a 
 
            workers' compensation policy in the family farming operation 
 
            but the policy was not introduced into evidence nor was 
 
            information regarding the rate which would be applicable 
 
            under section 85.36(11).  It was held that the claimant has 
 
            the burden of proving the rate to which she is entitled.  It 
 
            was held that it might be proper to include the earnings for 
 
            which a premium was charged in accordance with sections 
 
            85.1(6) and 85.36(11) in cases such as this if the proper 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            evidence is in the record.
 
            
 
            2907
 
            Where a doctor charged in excess of $3000 for consulting 
 
            with both claimant and defense counsel, those fees were held 
 
            to be paid 50-50 by both parties with the claimant receiving 
 
            an additional sum of $150 as costs from defendants.  
 
            
 
            3800
 
            The Unites States Rule was held to be applicable.  Payments 
 
            are to be applied first to accrued interest and then to 
 
            satisfy the weekly benefit entitlement which exists.  The 
 
            Guide to Iowa Workers' Compensation Claim Handling was 
 
            held to be the preferred method for computing interest.
 
            
 
            4000.2
 
            Penalty applied when defendants failed to properly compute 
 
            healing period, scheduled permanent partial disability and 
 
            interest entitlement.  It was a simple case with simple 
 
            computations.  There was no reason for the underpayment.  
 
            Defendants held not required to pay an additional 30 days of 
 
            benefits where permanent partial disability was paid in 
 
            advance.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            TERI OSBORNE,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 965423
 
            HY-VEE FOOD STORES, INC.,       
 
                                                 A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            EMPLOYERS MUTUAL COMPANIES,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed May 13, 1993 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Barry Moranville
 
            West Bank Bldg., Ste 212
 
            1601 22nd St.
 
            West Des Moines, Iowa 50266
 
            
 
            Mr. Jeff M. Margolin
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1803
 
                                              Filed August 31, 1993
 
                                              Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            TERI OSBORNE,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 965423
 
            HY-VEE FOOD STORES, INC.,       
 
                                                  A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            EMPLOYERS MUTUAL COMPANIES,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            5-1803
 
            Based upon all the factors of industrial disability, 
 
            including claimant's age (30 years), education (eleventh 
 
            grade), work experience, functional impairment ratings (5-20 
 
            percent), current earnings as compared with earnings at the 
 
            time of her injury, work restrictions, and claimant's 
 
            injury, it is determined that she is seven percent 
 
            industrially disabled.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            
 
                                          
 
            BALLARD STRONG,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 965952
 
            WILBOS ENERGY,                :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            NATIONAL UNION FIRE,          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Ballard 
 
            Strong against his former employer Wilbros Energy Services 
 
            Company and its insurance carrier based upon an injury that 
 
            occurred on October 8, 1990.  The only issue is 
 
            determination of the amount of permanent partial disability 
 
            affecting Strong's foot.  It is stipulated that the 
 
            disability is a scheduled disability of the foot.  The case 
 
            is one in which the maximum weekly rate for permanent 
 
            partial disability of $647 is applicable.  The evidence 
 
            consists of testimony from Ballard Strong and Patricia 
 
            Heinen.  The record also contains jointly offered exhibits 
 
            I, II and III.  The case was heard at Des Moines, Iowa, on 
 
            January 11, 1994.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Ballard Strong injured his left foot on October 8, 
 
            1990, when the blade of a caterpillar tractor fell on it.  
 
            He suffered a severe crush injury which included fractures 
 
            of the third, fourth and fifth metatarsals in his left foot.  
 
            (exhibit I, page 8).  Strong was injured at Dubuque, Iowa, 
 
            but lives at Ardell, Texas.  His care was transferred to F. 
 
            James Herbertson, M.D., an orthopedic surgeon near 
 
            claimant's home.  Eventually claimant's recuperation from 
 
            the injury ended.  He has residual complaints of pain and 
 
            swelling in the foot.  The condition is sufficiently severe 
 
            that he is unable to wear normal footwear in the usual 
 
            manner.  He requires an insert in his shoe.  The pain in the 
 
            foot increases with walking.  Claimant was observed to walk 
 
            with a noticeable limp.  He cannot wear footwear with a 
 
            heel.  He has to have footwear altered so he can wear it.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
                 Ballard Strong appears to be an industrious person who 
 
            has been gainfully employed on a regular basis both before 
 
            and after the injury in this case.  His appearance and 
 
            demeanor was observed.  His statements regarding his 
 
            symptoms and problems which continue with his foot are found 
 
            to be accurate.  He has been offered surgery to treat 
 
            neuromas which have developed in his foot.  There is a 
 
            possibility of blocking the nerves or rebreaking and 
 
            realigning the bones in his foot.  He is understandably 
 
            reluctant to undergo those procedures.
 
            
 
                 Dr. Herbertson has been claimant's principle treating 
 
            physician since he left Iowa.  In May 1991 Dr. Herbertson 
 
            rated claimant as having a 35 percent permanent partial 
 
            impairment of his left foot.  (ex. I, pp. 23 & 25).  Dr. 
 
            Herbertson stated that the rating was based on the AMA 
 
            Guides to the Evaluation of Permanent Impairment, 3rd ed. 
 
            (ex. I, p. 26).  According to the report claimant has a 10 
 
            percent impairment because of loss of motion of the 
 
            metatarsophalangeal joints, a 10 percent disability due to 
 
            numbness and loss of feeling in the toes and a 15 percent 
 
            disability due to loss of the metatarsal arch.  Equivalent 
 
            impairments were 25 percent of the lower extremity or 10 
 
            percent of the whole person.
 
            
 
                 The undersigned has examined the third edition of the 
 
            Guides and has not found any particular place at which a 
 
            disability rating is expressly assigned for loss of the 
 
            metatarsal arch.  The third edition of the Guides does not 
 
            expressly address fractures of the metatarsals or loss of 
 
            the normal arch of the foot.  It is noted that ankylosis of 
 
            the metatarsophalangeal joints of the third, fourth and 
 
            fifth toes, the ones which were fractured, under table 31 
 
            found at page 57, can allow a 9 percent impairment of the 
 
            foot.  When looking at tables 26 through 29, there seems to 
 
            be somewhat of a pattern of a joint being ankylosed at 
 
            neutral position receiving an impairment that is roughly 50 
 
            percent of the impairment for amputation at the same joint.  
 
            The closest comparable table the undersigned could find is 
 
            table 43 at page 66 in which a midmetatarsal amputation of 
 
            the foot renders a 50 percent impairment of the foot.   Half 
 
            of that would be 25 percent of the foot.  It is noted that 
 
            in this case, it is the metatarsals which were fractured.  
 
            That is a location which is in the midfoot.  It does not 
 
            directly involve the toes as we typically know them.  The 
 
            toes extend distally from the metatarsophalangeal joints.  
 
            Those joints are the distal end of the metatarsal bones.  It 
 
            is noted that the third edition of the Guides also allows 
 
            impairment due to pain and numbness.  (pp. 65-71).
 
            
 
                 The third revised edition is essentially identical to 
 
            the third in regard to measuring impairment of the foot.  
 
            The fourth edition, however, which was printed in June 1993 
 
            does appear to expressly address the condition which exists 
 
            in this case.  It is found at page 86 in table 64.  When the 
 
            metatarsal fracture with plantar angulation and 
 
            metatarsalgia is considered, the book would appear to 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            provide a 7 percent rating for the fifth and a 3 percent 
 
            rating for each of the third and fourth.  The total would 
 
            amount to 13 percent.  If added to the 9 percent rating 
 
            which is available under all three editions for the loss of 
 
            motion at the metatarsophalangeal joints, a rating in the 
 
            range of 22 percent would seem appropriate.  If additional 
 
            impairment is added for the nerve injury portion of this 
 
            injury (the neuromas), it is again quite reasonable to end 
 
            up with an impairment rating in the range of 35 percent.
 
            
 
                 Claimant was evaluated by Edward T. McCaffrey, D.P.M., 
 
            for purposes of determining impairment.  Dr. McCaffrey 
 
            concurred with the rating from Dr. Herbertson but stated 
 
            that Dr. Herbertson's rating was a bit conservative.  It is 
 
            found the Dr. McCaffrey is talking of an equivalent 
 
            disability of the whole person when he states that 
 
            claimant's disability is between 10 and 15 percent.  That 
 
            statement is made in the context of Dr. Herbertson's 10 
 
            percent permanent disability to the whole person equivalent 
 
            rating.  (ex. I, pp. 37-38).  
 
            
 
                 Claimant was evaluated by G. L. Becker, M.D.  Dr. 
 
            Becker concluded that claimant has a 10 percent disability 
 
            of his left foot.  Dr. Becker goes on to relate the 
 
            equivalent impairments of 7 percent of the lower extremity 
 
            and 3 percent of the total body.  (ex. I, pp. 33-34).  
 
            
 
                 Claimant's records were reviewed by Thomas W. Bower, 
 
            L.P.T.  Bower indicated that claimant had at most a 6 
 
            percent impairment of the left foot.  (ex. I, pp. 35-36).
 
            
 
                 It is found that Ballard Strong has a 35 percent loss 
 
            of use of his left foot as a result of the injury he 
 
            sustained on October 8, 1990.  This was a severe crush 
 
            injury.  Crush injuries often cause nerve, muscle and other 
 
            soft tissue damage that is not adequately addressed in the 
 
            Guides.  This injury involved multiple fractures.  
 
            Neuromas have developed.  The disability in this case comes 
 
            not so much from a loss of range of motion as it does from a 
 
            loss of the ability to make use of the foot for the things 
 
            for which individuals normally use a foot, namely, standing 
 
            and walking.  It is determined and concluded that the rating 
 
            from Dr. Herbertson is a reasonable assessment of the extent 
 
            of Ballard Strong's loss of use of his left foot.  The 
 
            ratings of 10 percent and 6 percent which appear in the 
 
            record are totally unreasonable and inadequate.  While the 
 
            ratings may be supportable under the AMA Guides they do not 
 
            provide a realistic good faith assessment of the loss of use 
 
            of the claimant's left foot in this case.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 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 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 This agency has adopted rule 343 IAC 2.4 which makes 
 
            the Guides to the Evaluation of Permanent Impairment, 
 
            published by the American Medical Association, a guide for 
 
            determining permanent partial disabilities under Iowa Code 
 
            sections 85.34(2)(a) - (r).  It goes on to state that 
 
            payments made in accordance with the Guides are recognized 
 
            as a prima facie showing of compliance by the employer or 
 
            insurance carrier with the workers' compensation act but the 
 
            rule does not purport to prevent other medical opinions or 
 
            guides for establishing the degree of permanent impairment.  
 
            
 
                 It must be recognized at the outset that there is a 
 
            difference between impairment and disability.  Impairment is 
 
            a medical term whereas disability is the statutory term 
 
            found in the workers' compensation laws.  All three editions 
 
            of the Guides distinguish between impairment and disability.  
 
            The Iowa Supreme Court has recognized that there are some 
 
            critical differences between the medical terminology found 
 
            in the Guides and the statutory language in the workers' 
 
            compensation acts.  Lauhoff Grain v. McIntosh, 395 N.W.2d 
 
            834, 839 (Iowa 1986).  The Iowa Supreme Court has not 
 
            adopted the Guides.  It has held that in dealing with a 
 
            scheduled loss the term loss means loss of use.  Moses, 194 
 
            Iowa 819, 184 N.W. 746.  It has been held permissible to 
 
            consider any evidence bearing on the loss of use so long as 
 
            earning capacity is not considered.  Soukup, 222 Iowa 272, 
 
            268 N.W. 598.
 
            
 
                 Despite the fact that an agency rule adopts the Guides, 
 
            agency precedents consider it impermissible to rely upon the 
 
            Guides in deciding a case unless a physician has stated 
 
            that reliance was made upon the Guides.  Shank v. Mercy 
 
            Hospital Medical Center, file number 719627 (App. Dec. 
 
            August 28, 1989).  Likewise, it is appropriate to determine 
 
            scheduled permanent partial disability without there being 
 
            any impairment rating from a physician in the record.  Shank 
 
            v. Mercy Hospital Medical Center, file number 719627 (App. 
 
            Dec.  September 27, 1991).  It is clear that the Guides are 
 
            not intended to be controlling on the issue of scheduled 
 
            permanent partial disability.  They are only a guide.  
 
            
 
                 There is sometimes a tendency to place undue emphasis 
 
            on the Guides.  This probably results from the fact that 
 
            medical practitioners commonly refer to them.  It is 
 
            important to remember, however, that it is the loss of use 
 
            that is to be compensated, not an impairment rating.  The 
 
            impairment rating scheme in the Guides, while uniform, does 
 
            not address every condition which can cause a person to lose 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            the ability to make use of a body member.  The treatment of 
 
            pain under the Guides is somewhat controversial.  If severe 
 
            pain results whenever a person stands on his foot a person 
 
            can have a loss of use of the foot, regardless of what 
 
            rating of impairment may or may not be authorized under the 
 
            Guides.  The Guides are necessarily arbitrary in order to 
 
            be uniform.  
 
            
 
                 The 35 percent loss of use of the foot entitles Ballard 
 
            Strong to recover 52 1/2 weeks of compensation for permanent 
 
            partial disability payable at the rate of $647 per week 
 
            commencing June 3, 1991.  It has been stipulated that 
 
            $3,212.27 have been paid by paying 4.764 weeks at the rate 
 
            of $674.28.  Defendants are entitled to a dollar-for-dollar 
 
            credit for those payments.
 
            
 
                                      ORDER
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay Ballard 
 
            Strong fifty-two point five (52.5) weeks of compensation for 
 
            permanent partial disability at the rate of six hundred 
 
            forty-seven dollars ($647) per week payable commencing June 
 
            3, 1991.  
 
            
 
                 It is further ordered that defendants receive credit 
 
            against this award in the amount of three thousand two 
 
            hundred twelve and 27/100 dollars ($3,212.27).  Such shall 
 
            be allocated to the weekly payments which first came due and 
 
            payable.  The remaining amount of the award is accrued and 
 
            unpaid.  It shall be paid to claimant in a lump sum together 
 
            with interest computed 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.
 
            
 
                 Signed and filed this __________ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Arvid Oliver
 
            Attorney at Law
 
            2635 Hubbell Ave
 
            Des Moines, Iowa  50317
 
            
 
            Mr. William Scherle
 
            Attorney at Law
 
            8th Floor Fleming Bldg
 
            218 6th Ave
 
            Des Moines, Iowa  50309
 
 
            
 
            
 
            
 
            
 
                                           1402.40 1803 1803.1 3700
 
                                           Filed March 9, 1994
 
                                           Michael G. Trier
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            
 
            BALLARD STRONG,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 965952
 
            WILBOS ENERGY, 
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            NATIONAL UNION FIRE,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            
 
            
 
            1402.40 1803 1803.1 3700
 
            AMA Guides held to be an imperfect tool for measuring loss 
 
            of use under scheduled injury sections.  It was held to be 
 
            uniform but necessarily arbitrary in order to provide 
 
            uniformity.  In a case where ratings were given ranging from 
 
            6 percent to 35, 35 percent permanent partial disability of 
 
            the foot was awarded.  The permanent partial disability was 
 
            determined based upon claimant's loss of ability to use his 
 
            foot for the things for which people customarily use their 
 
            feet. 
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                       1100; 1108; 1805, 2600
 
                                       Filed December 16, 1992
 
                                       BYRON K. ORTON
 
                                       BJO
 
         
 
                     before the iowa industrial commissioner
 
         ____________________________________________________________
 
                                       :
 
         TERESA A. BREEDEN, Surviving  :
 
         Spouse of DANIEL K. BREEDEN,  :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :        File No. 966020
 
         FIRESTONE TIRE AND RUBBER     :
 
         COMPANY,                      :
 
                                       :           A P P E A L
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         CIGNA INSURANCE COMPANIES,    :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
         1100
 
         Found Mr. Breeden's (deceased) injury arose out of and in the 
 
         course of his employment on October 1, 1990.
 
         
 
         1108
 
         
 
         Found Mr. Breeden's C-7 disc-nerve compression, caused by an 
 
         October 1, 1990 work injury, as the primary reason for and cause 
 
         of his October 31, 1990 surgery and cause of death on the 
 
         operating table on October 31, 1990.
 
         Found that Mr. Breeden's C-3 benign tumor found as a result of an 
 
         MRI done to further analyze his C-7 disc problem, was not the 
 
         primary cause of his surgery or his death on the operating table 
 
         on October 31, 1990.  The doctor decided to do both operations on 
 
         same day, one after the other.  The C-7 was done first and the 
 
         C-3 last.
 
         
 
         2600
 
         Found that a pathologist who never has treated disc problems, nor 
 
         treated patients, nor perform surgery, nor talked to claimant or 
 
         the neurologist, was not competent to challenge and override a 
 
         neurosurgeon and second guess his opinion as to the cause of Mr. 
 
         Breeden's symptoms, reason for surgery and ultimate cause of 
 
         death under circumstance of the case.
 
         
 
         1805
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Found that although actual cause of death was not specifically 
 
         known even after an autopsy was done, the fact that the work 
 
         injury caused Mr. Breeden to have the surgery and claimant's 
 
         unfortunate death results in the defendants being liable for the 
 
         results of the surgery and Mr. Breeden's death.
 
         This action was brought by Teresa Breeden, surviving spouse of 
 
         Daniel Breeden.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TERESA A. BREEDEN, Surviving  :
 
            Spouse of DANIEL K. BREEDEN,  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 966020
 
            FIRESTONE TIRE AND RUBBER     :
 
            COMPANY,                      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANIES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on February 11, 1992, at 
 
            Des Moines, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for decedent's alleged 
 
            injury that occurred on or around September 30 or October 1, 
 
            1990, and in which claimant contends that this injury 
 
            ultimately resulted in the death her husband, Daniel 
 
            Breeden.
 
            
 
                 The record in the proceeding consists of the testimony 
 
            of Teresa Breeden, surviving spouse of Daniel Breeden; 
 
            Steven Kinnard; Scott Erwood, M.D.; Robert Snyder; and James 
 
            Allpress; claimant's exhibits A through T; and defendants' 
 
            exhibits A, B, C, E, F, G and H.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether decedent's alleged injury and ultimate 
 
            death arose out of and in the course of his employment on or 
 
            around September 30 or October 1, 1990;
 
            
 
                 2.  Whether decedent's death is causally connected to 
 
            an alleged injury that occurred on or around September 30 or 
 
            October 1, 1990; and,
 
            
 
                 3.  Claimant's entitlement, if any, to benefits under 
 
            the Iowa Workers' Compensation Law.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 Daniel Breeden, the alleged injured worker, died on 
 
            October 31, 1990, and Teresa, his surviving spouse, is the 
 
            claimant herein.  She testified decedent was physically fit 
 
            prior to September 30, 1990.  She said he coached Little 
 
            League and played softball.  She acknowledged her husband 
 
            cut wood the Saturday (September 29, 1990) before his 
 
            alleged injury on Sunday-Monday, September 30 or October 1, 
 
            1990, during an outing with his two sons.  She said her 
 
            husband did not complain of an injury or a physical problem 
 
            when he returned from this outing.  She related Mr. Breeden 
 
            would cut wood once a week in the fall of the year.
 
            
 
                 She testified as to her husband's activity on Sunday 
 
            (September 30, 1990) prior to going to work at 10:00 p.m. 
 
            for the 11:00 p.m. Sunday to 7:00 a.m. Monday shift.  She 
 
            said Mr. Breeden did not complain of any problems before he 
 
            left for work at 10:00 p.m.  Mrs. Breeden related that when 
 
            she returned home from her job at 1:00 p.m. on October 1, 
 
            1990, her husband was up and complained that his back and 
 
            arm hurt.  She said finding her husband up at that time of 
 
            day was unusual because he normally would be sleeping 
 
            because of his evening shift.  Mrs. Breeden said her husband 
 
            said something about holding a ring at work.  That didn't 
 
            mean so much to her at the time as she was not that familiar 
 
            with the nature of his work.  She emphasized her husband was 
 
            not a complainer.  Mrs. Breeden reviewed claimant's exhibit 
 
            N and acknowledged that that was her husband's handwriting 
 
            and it was basically the same information her husband had 
 
            orally told her.
 
            
 
                 Steven Kinnard testified that he works at Firestone and 
 
            knew the decedent, Mr. Breeden.  He was Mr. Breeden's 
 
            supervisor as of September 1990.  He said  Mr. Breeden did 
 
            not report an injury to him that last night, but did not 
 
            come to work the next day.  He said Mr. Breeden called the 
 
            next day and said when he woke up he couldn't move his arm 
 
            and at that time did not know what caused it.  He said Mr. 
 
            Breeden indicated he possibly slept on it wrong and didn't 
 
            think it was serious.  He said Mr. Breeden called one or two 
 
            days later and told him the problem involved a disc and was 
 
            work related.
 
            
 
                 James Allpress, safety engineer for defendant employer, 
 
            briefly testified.
 
            
 
                 Roger Snyder testified he has worked for defendant 
 
            employer for seven years, mostly as a tire builder and some 
 
            as a temporary supervisor.  He was a partner with Mr. 
 
            Breeden in the tire room, working with a two-man tire 
 
            machine, ZQE7.  Mr. Breeden was the outside man and Mr. 
 
            Snyder was the inside worker with this machine.  He said Mr. 
 
            Breeden would put the stock on the table and lift the rings 
 
            to him to put into the tire drum.  He said the rings at that 
 
            time weighed around 50 pounds and the outside lock ring 
 
            weighed about 58 pounds.  There were 14 rings per drum.  Mr. 
 
            Snyder trained the decedent and approximately five tires 
 
            would be built in an eight hour period.
 
            
 
                 Mr. Snyder remembered Mr. Breeden telling him his arm 
 
            was numb and he had trouble putting in the last ring that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            shift of September 30-October 1, 1990.  He said the 
 
            employees were complaining about the weight of these rings 
 
            and they are now using 40 pound rings.  Mr. Snyder indicated 
 
            that he also had complained to the employer about the weight 
 
            of these rings and that he might have to go on light duty if 
 
            they didn't do something about them and their weight.  Mr. 
 
            Snyder did not specifically see anything happen to the 
 
            decedent on that particular shift.  He said the decedent was 
 
            not a complainer and he came to work and did his job.
 
            
 
                 Scott Erwood, M.D., a neurologist, testified in person 
 
            that he first saw Mr. Breeden on October 5, 1990, pursuant 
 
            to a referral from Kenneth Andersen, M.D.  Mr. Breeden was 
 
            complaining of right upper extremity and right arm pain.  He 
 
            said the history taken from Mr. Breeden is consistent with a 
 
            disc injury.
 
            
 
                 An MRI was taken and the doctor said this showed a 
 
            right C-7 radiculopathy (pinched nerve) and a disc problem.  
 
            Also, it surprisingly showed a mass on the right side C-3, 
 
            approximately 1 centimeter in size going into the spinal 
 
            cord.  He said Mr. Breeden's complaints were consistent with 
 
            a disc herniation.  He emphasized the MRI could not 
 
            neurologically show the cause of Mr. Breeden's problem any 
 
            better in order for him to analyze the situation.
 
            
 
                 Dr. Erwood said the MRI surprised him in that it showed 
 
            the C-3 tumor as they were not expecting that.  He 
 
            emphasized Mr. Breeden had no symptoms from this tumor and 
 
            related those symptoms decedent would have if the tumor was 
 
            causing problems.  He said if an MRI had not been done, a C-
 
            3 tumor would not have been discovered.  Dr. Erwood said the 
 
            C-7 problem has a different pattern and affects different 
 
            parts of the body than a C-3 root problem.  Dr. Erwood said 
 
            that decedent's pain and symptoms were very inconsistent 
 
            with a C-3 problem.
 
            
 
                 Dr. Erwood said it was obvious the tumor had to come 
 
            out but thought he would wait for two weeks to see if 
 
            decedent's C-7 disc problems would get better and, if not, 
 
            he would perform disc surgery on decedent.
 
            
 
                 The doctor was extensively questioned as to whether he 
 
            was treating Mr. Breeden for disc problem or tumor and 
 
            whether surgery was mainly for the tumor and not the disc.  
 
            The doctor was emphatic that he was treating decedent for a 
 
            herniated disc.  He did not give decedent pre-surgery tumor 
 
            treatment.
 
            
 
                 Dr. Erwood said he concluded that if he was going to do 
 
            the C-7 surgery, he would do the C-3 tumor removal at the 
 
            same time.  He emphasized that this would then result in 
 
            decedent having one operation, one recovery, one 
 
            hospitalization and would get Mr. Breeden back to work 
 
            sooner.  It was obvious that doing both at the same time 
 
            would prolong the surgery.  Although Dr. Erwood said that a 
 
            more lengthy surgery does not necessarily increase the risk, 
 
            as he has done several operations that were very lengthy, it 
 
            is obvious that the longer someone is on an operating table 
 
            the greater the risk is that something could go wrong.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Erwood acknowledged that when he saw Mr. Breeden on 
 
            October 22, Mr. Breeden's pain was better with the therapy 
 
            and that Mr. Breeden had been off work and inactive, but Mr. 
 
            Breeden still had a weakness of his right triceps which is a 
 
            C-7 problem.  He emphasized this weakness isn't a C-3 
 
            problem and physical therapy does nothing for a C-3 tumor.
 
            
 
                 Mr. Breeden had his surgery on October 31, 1990.  Dr. 
 
            Erwood did the C-7 surgery first and explained the 
 
            procedure.  He related that if he were to do the C-7 surgery 
 
            only, he would have proceeded from the front or the anterior 
 
            side of the neck as it is easier and there would be less 
 
            interference than from the rear or posterior side.  He 
 
            emphasized he could not do the C-3 tumor from the front but 
 
            only from the rear.
 
            
 
                 Dr. Erwood found no free disc material or freely 
 
            herniated disc fragment but found a tight nerve which he 
 
            freed by removing bone and the pressure was alleviated.  He 
 
            said his C-7 surgery supported his neurological exam and 
 
            that you don't always find a herniated disc.
 
            
 
                 After approximately one and one-half hours on the C-7 
 
            surgery, the doctor continued with his surgery on Mr. 
 
            Breeden's C-3 tumor under a microscope.  It was benign and 
 
            the doctor again said it wasn't causing any of Mr. Breeden's 
 
            problems.  Dr. Erwood said that at the end of the surgery 
 
            and after the tumor was removed and he was doing some final 
 
            measures, Mr. Breeden's blood pressure became abnormal and 
 
            after one plus hours of CPR, Mr. Breeden died on the 
 
            operating table.  The doctor said he didn't know what caused 
 
            the death specifically (Cl. Ex. J, p. 42).
 
            
 
                 Dr. Erwood acknowledged that he read the deposition of 
 
            Alexander Ervanian, M.D., pathologist, and he doesn't 
 
            believe a pathologist can competently judge a neurologist's 
 
            work.  He said it would be best if a neurologist would be 
 
            the reviewer.  He emphasized pathologists are not qualified 
 
            to give neurological opinions.  He indicated a pathologist 
 
            never does disc surgery or tumor removal.  He indicated a 
 
            pathologist takes the tissue, blood sample, etc., and makes 
 
            a judgement and analysis.  Dr. Erwood strongly disagreed 
 
            with the pathologist's statement that the main reason for 
 
            Mr. Breeden's surgery was tumor removal.  Dr. Erwood 
 
            emphasized again the main reason was the C-7 herniated disc 
 
            even though the tumor had to be removed.
 
            
 
                 Dr. Erwood again expressed his opinion that it is not 
 
            necessary to have a piece of disc material to have a 
 
            herniated disc.  He said Mr. Breeden's nerve was tight and 
 
            compressed and if he didn't release it, Mr. Breeden would 
 
            have had a permanent problem.
 
            
 
                 Dr. Erwood disagreed with the comments of Dr. Ervanian 
 
            that (1) Mr. Breeden's neck and finger problems were caused 
 
            by C-3 not C-7, and (2) Mr. Breeden's death was not related 
 
            to his injury.
 
            
 
                 Dr. Erwood agreed that if an MRI shows a piece of disc 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            out of place, it is not conclusive.  He said oftentimes what 
 
            you see is not what you find.  He said from the posterior 
 
            vantage point, he could not see a herniated disc but that 
 
            doesn't mean there wasn't one.  The C-7 nerve root was 
 
            amputated.  Dr. Erwood indicated that when he used the word 
 
            amputation, it is the same as a pinched nerve in Mr. 
 
            Breeden's situation.
 
            
 
                 There was testimony from Dr. Ervanian which seemed to 
 
            indicate amputation would mean a nerve that was cut.  It is 
 
            obvious a nerve was not cut and it is obvious we are playing 
 
            a game of semantics.  We see this often in medical reports 
 
            where several words are misinterpreted.  It is obvious to 
 
            the undersigned that the nerve was not amputated and that it 
 
            was more a pinched or impingement situation.  It is also 
 
            obvious that possibly the doctor could have used a better 
 
            choice of words.  Dr. Erwood agreed that a herniated disc 
 
            can be caused by rather minimal activity and often the 
 
            patient has no idea of what he did to cause it.  Dr. Erwood 
 
            said the death certificate (Cl. Ex. J42) really indicated 
 
            the cause of death was unknown.  He said there may have been 
 
            a coronary embolism (air-blood clot) but the autopsy showed 
 
            no pulmonary embolism.  Dr. Erwood did not know whether 
 
            death would have occurred if surgery had ended earlier.  Dr. 
 
            Erwood, though appearing reluctant to so state because he 
 
            hadn't give that much thought to it, did indicate that if 
 
            there was a residual symptom from Mr. Breeden's C-7 nerve 
 
            root surgery, Dr. Erwood would have most likely opined a 10 
 
            or 11 percent permanent impairment to Mr. Breeden's body as 
 
            a whole.
 
            
 
                 The doctor emphasized that as far as he was concerned, 
 
            he was treating a work injury and combined two surgeries for 
 
            a more efficient purpose and procedure.
 
            
 
                 Alexander Ervanian, M.D., the medical director of 
 
            laboratories and director of nuclear medicine at Iowa 
 
            Methodist Hospital, testified through his deposition on 
 
            January 13, 1992 (Def. Ex. E) and his deposition on December 
 
            23, 1991 (Cl. Ex. S).  The doctor practices exclusively in 
 
            pathology and nuclear medicine.  He indicated his main work 
 
            is assisting in diagnosis.  He never sees the whole patient 
 
            (Def. Ex. E, p. 7).  He does not treat herniated discs.  He 
 
            also reads and interprets medical data as reflected in 
 
            records of a doctor or hospital (Jt. Ex. E, p. 13).  He has 
 
            never treated a herniated disc, has never treated a tumor 
 
            nor performed surgery in either of these types of instances 
 
            (Def. Ex. E, pp. 27 and 28).  He has never seen Mr. Breeden 
 
            as a patient, never talked to Dr. Erwood about this case, 
 
            and has never treated a work-related injury.  Dr. Ervanian 
 
            acknowledged he had all the hospital records of Mr. Breeden, 
 
            particularly regarding his last hospitalization.
 
            
 
                 Defendants' attorney proposed in a hypothetical 
 
            question that attempted to substantially summarize the 
 
            medical situation from October 1 to decedent's death (Def. 
 
            Ex. E, p. 18-26).  The doctor opined that the primary 
 
            purpose of Mr. Breeden's surgery was to remove the cervical 
 
            cord tumor (Def. Ex. E, p. 30).  Dr. Ervanian said "that is 
 
            what Dr. Erwood believed and operated for." (Def. Ex. E, p. 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            30)  The undersigned is perplexed as to how Dr. Ervanian 
 
            believed Dr. Erwood believed this when he said he never 
 
            talked to him and it is completely contrary to Dr. Erwood's 
 
            testimony and medical records.
 
            
 
                 Dr. Ervanian said if there was a herniated disc, he 
 
            would expect the operative report of October 31, 1990 to 
 
            reflect fragments in the pathology report if there was a 
 
            removal of a disc herniated at C-7 and 6 (Def. Ex. E, p. 
 
            34).  Contrary to what Dr. Erwood, the neurologist, said, 
 
            Dr. Ervanian said that symptoms of pain in the upper neck, 
 
            back and shoulder are consistent with C-3 tumor (Def. Ex. E, 
 
            p. 35).
 
            
 
                 Dr. Ervanian could not opine a cause of Mr. Breeden's 
 
            death on October 31, 1990 (Def. Ex. E, p. 36), but he did 
 
            opine that Mr. Breeden's death was not related to work.  
 
            There were objections to this doctor answering questions in 
 
            this area as to his competency.  The undersigned believes 
 
            those objections based on this record are valid.  This will 
 
            be covered in more detail later.  Dr. Ervanian first 
 
            received information in this case in July 1991 (Jt. Ex. E, 
 
            p. 40).  Defendants' attorney is the only person Dr. 
 
            Ervanian talked to prior to his first deposition.  Dr. 
 
            Ervanian was given claimant's exhibit A, a November 20, 1990 
 
            letter from Dr. Erwood to look at and he indicated he has 
 
            never seen that letter before and that defendants' attorney 
 
            never gave him a copy (Def. Ex. E, p. 44).
 
            
 
                 Dr. Ervanian agreed Dr. Erwood is in a better position 
 
            to state what the primary purpose was in performing Mr. 
 
            Breeden's surgery (Def. Ex. E, p. 45).  Dr. Ervanian was 
 
            asked several questions on cross-examination as to certain 
 
            body functions and their cause emanating from a C-3 or C-6,7 
 
            area.  He was referred to his answer to the same or similar 
 
            questions in his December 23, 1991 deposition (Cl. Ex. S).  
 
            It is obvious to the undersigned that Dr. Ervanian's 
 
            competency and expertise may be in pathology but is not in 
 
            neurology.
 
            
 
                 Upon questioning again, Dr. Ervanian believed if one 
 
            has a herniated disc, surgery to correct the same will 
 
            require removal of disc material, pulposus, or bone (Def. 
 
            Ex. E, p. 67).  The doctor did say that if the symptoms 
 
            decedent was reporting were due to a herniated disc, then 
 
            that would be the primary purpose of the surgery (Def. Ex. 
 
            E, p. 69).  It appears Dr. Ervanian is further supporting 
 
            his prior conclusions because Mr. Breeden died at a point of 
 
            time after the C-3 tumor surgery and that if the C-7 surgery 
 
            was the last surgery on October 31, 1990, he would say that 
 
            Mr. Breeden's major problems then resulted from that surgery 
 
            (Jt. Ex. E, p. 72).
 
            
 
                 It seems to the undersigned that not having treated 
 
            patients and, in particular neurological problems, leaves 
 
            Dr. Ervanian in a guessing or speculative posture.  The 
 
            undersigned questions how Dr. Ervanian can opine, as a 
 
            pathologist, within reasonable medical certainty what effect 
 
            a C-3 tumor was having on decedent so as to contradict a 
 
            neurologist specializing in the area and who treated Mr. 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Breeden and actually did the surgery.  This is beyond the 
 
            undersigned's imagination with the facts we have in this 
 
            case at bar.
 
            
 
                 It seems that defendants are also relying on why Dr. 
 
            Erwood performed the October 31 surgery by seeing what stage 
 
            of the surgery was done first and which one was done last.  
 
            It seems the October 23, 1990 and October 8, 1990 letters 
 
            have this information in reverse order (Cl. Ex. C). 
 
            
 
                 The undersigned does not believe this has any bearing 
 
            on why Mr. Breeden primarily had his surgery.  The record is 
 
            clear enough to the undersigned without needing that to 
 
            confuse the issue.  The undersigned sees no importance as to 
 
            Dr. Erwood putting in a particular paragraph in reference to 
 
            one surgery first versus the other.  His testimony seems 
 
            clear on this point.  The undersigned believes the October 
 
            8, 1990 letter, last large paragraph, sets out Dr. Erwood's 
 
            real beliefs and judgment and primary reason for Mr. 
 
            Breeden's hospitalization and surgery and that he didn't 
 
            change his opinion subsequently contrary to what Dr. 
 
            Ervanian is trying to guess or believe all with the benefit 
 
            of hindsight and also having in mind the existing litigation 
 
            posture and his client's position.
 
            
 
                 Ronald Charles Evans, D.C., testified through his 
 
            deposition (Def. Ex. C) on February 3, 1992, and stated that 
 
            he frequently and commonly sees patients that complain of 
 
            back, neck, leg and arm complaints and those who have work 
 
            injuries in his chiropractic practice.  He also indicated it 
 
            is common to see these complaints from people who do not 
 
            have any indication of trauma or injury.  Dr. Evans first 
 
            treated decedent on May 31, 1988, through a medical referral 
 
            from Firestone Tire & Rubber Company, as Mr. Breeden was 
 
            having low back complaints.  He related some of the history 
 
            Mr. Breeden gave him and described the treatment and release 
 
            of the decedent on June 8, 1988.  Mr. Breeden returned to 
 
            Dr. Evans again on November 15, 1988, with a low back 
 
            complaint.  The doctor said Mr. Breeden indicated to the 
 
            doctor that he slipped on some oil at Firestone but did not 
 
            fall (Def. Ex. C, p. 14).  The doctor described the 
 
            treatment he prescribed for Mr. Breeden which included 
 
            ultrasound to his low back, muscle stimulation and 
 
            manipulation, etc.  This treatment lasted through November 
 
            18, 1988.
 
            
 
                 Dr. Evans saw Mr. Breeden again on April 15, 1990, for 
 
            low back pain (Def. Ex. C, p. 16).  He did not see Mr. 
 
            Breeden after August 16, 1990, until October 2, 1990, at 
 
            which time Mr. Breeden complained of right-sided neck, arm 
 
            and shoulder problems.  He described the history Mr. Breeden 
 
            gave him and his notes indicate Mr. Breeden cut wood eight 
 
            hours Sunday night and felt okay but felt worse by Monday 
 
            noon.  Mr. Breeden indicated to Dr. Evans that his back and 
 
            arm were sore.  He said Mr. Breeden related nothing as to 
 
            anything happening at work.  He said his findings supported 
 
            a diagnosis of C5-6 nerve root compression right side 
 
            (pinched nerve).  He opined Mr. Breeden's condition resulted 
 
            from him cutting wood at home (Def. Ex. C, p. 21).  The 
 
            doctor based this on the history Mr. Breeden gave him.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Evans described Mr. Breeden's acute severe 
 
            condition regarding his neck and right arm and the diagnosis 
 
            and plan of treatment he had for Mr. Breeden (Def. Ex. C, p. 
 
            26).
 
            
 
                 Dr. Evans said his notes and treatment do not reflect 
 
            Mr. Breeden relating his problem to work and he believed Mr. 
 
            Breeden would have mentioned a work injury if he was injured 
 
            at work.  He said he specifically would have asked Mr. 
 
            Breeden this question in his history taking, in other words, 
 
            if Mr. Breeden had injured himself at work (Def. Ex. C, pp. 
 
            29-30).  Dr. Evans believes Mr. Breeden would have told him 
 
            if he had a work injury.  Dr. Evans agreed that from Mr. 
 
            Breeden's exam, he indicated to the doctor his pain first 
 
            surfaced following his nap, Monday noon (Def. Ex. C, p. 33).
 
            
 
                 It appears clear from Dr. Evans that Mr. Breeden's 
 
            positive symptoms showed nerve compression at C5-6 and no 
 
            signs or symptoms relating to C3.  Dr. Evans seems to agree 
 
            with Dr. Erwood as to the symptoms that come from C-3 versus 
 
            the C-6 area (Deft. Ex. C, pp. 38-39).
 
            
 
                 Although Dr. Evans testified that there can be delayed 
 
            symptoms after an event or trauma, it is obvious the 
 
            sequence of events happening, in other words, wood chopping 
 
            - no symptoms and then working - some symptoms showing, 
 
            would indicate that if an injury occurred at work on 
 
            Sunday-Monday, that might be more likely the cause of Mr. 
 
            Breeden's symptoms (Def. Ex. C, pp. 33-37).  The doctor 
 
            shows only the wood chopping notwithstanding that Mr. 
 
            Breeden already saw a Dr. Anderson and indicated to him a 
 
            work injury (Def. Ex. C, p. 36).  The doctor indicated that 
 
            with the knowledge of the work incident on September 30-
 
            October 1, 1990, a lifting and slipping incident and given 
 
            the time lapse from chopping wood, Dr. Evans indicated he 
 
            would alter his opinion and the work incident would the most 
 
            proximate cause (Def. Ex. C, p. 45).  He indicated that 
 
            chopping wood would result in more of a muscular strain or 
 
            tendon injury whereas a slip-lift injury is more associated 
 
            with a ligament injury.  In other words, a compression of 
 
            the C6 nerve root (Def. Ex. C, pp. 44 and 46).
 
            
 
                 Dr. Evans said that if later exams shows a tumor at C-
 
            3, he would be surprised as that would show central nervous 
 
            system signs like wasting away of muscles, inability to 
 
            walk, drunken sort of gait, etc. (Def. Ex. C, p. 39).  Dr. 
 
            Evans indicated that when he saw Mr. Breeden on October 2, 
 
            1990, the nature of Mr. Breeden's nerve root compression was 
 
            severe enough that he already believed his disc problems was 
 
            not going to resolve itself without surgery (Def. Ex. C, p. 
 
            46).  In fact, Dr. Evans was already thinking of referring 
 
            Mr. Breeden to a neurosurgeon (Def. Ex. C, p. 36).
 
            
 
                 It appears that notwithstanding what history Dr. Evans 
 
            originally took, he realized he is only human and may not 
 
            have taken down everything pertinent.  He also indicated 
 
            that patients are not perfect and memories are not always 
 
            good and that he did not have a complete history, therefore, 
 
            supplementation of his history with other doctor reports, 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            obviously affected any prior opinion he rendered (Def. Ex. 
 
            C, p. 55).
 
            
 
                 There was considerable back and forth questions of Dr. 
 
            Evans by both parties' attorneys.  It appears obvious to the 
 
            undersigned that taking all the testimony as a whole, Dr. 
 
            Evans finds Mr. Breeden's work injury was the primary cause 
 
            of Mr. Breeden's C6-7 problem and not the wood chopping 
 
            incident (Def. Ex. C, pp. 58-74).
 
            
 
                 Dr. Evans opined the cause of death was from tumor 
 
            surgery because it was the last part of the surgery and the 
 
            longest of the surgeries.  When given a hypothetical 
 
            question which the undersigned believes more accurately sets 
 
            out the competent and logical facts, Dr. Evans reverses his 
 
            opinion or agrees then that the operation was due to a work-
 
            related injury (Cl. Ex. S, pp. 62-63).
 
            
 
                 The undersigned is not going into detail or make 
 
            additional specific reference, unless necessary, as to many 
 
            of the exhibits and reports as the doctors' testimony in 
 
            court or the depositions made reference to those documents 
 
            and were referred to in the respective testimony or 
 
            depositions.
 
            
 
                 The undersigned would be remiss if he did not mention 
 
            that there was a considerable amount of duplication and 
 
            unnecessary exhibits in this case.  At the time of the 
 
            hearing, the undersigned asked the parties if there was 
 
            duplication and after eliminating a duplicate medical 
 
            deposition, the parties indicated that there was no other 
 
            duplication with rare possible exceptions.  The undersigned 
 
            noted considerable duplication, such as the forensic 
 
            pathology reports, certain doctor reports, several organ 
 
            donation requests and MRI requests, etc.  The undersigned 
 
            has a hard time believing what importance organ donation re
 
            quests, the wage records and most of the decedent's 
 
            personnel records had on this case since there are no issues 
 
            which those addressed.  Both parties still entered identical 
 
            records into evidence through their exhibits in addition to 
 
            the same party offering duplicate exhibits into the record.
 
            
 
                 The undersigned believes that the greater weight of 
 
            evidence indicates that decedent did, in fact, incur an 
 
            injury that arose out of and in the course of his employment 
 
            on or around October 1, 1990.  Confusion as to whether it 
 
            was September 30 or October 1 is strictly because decedent's 
 
            shift covered parts of both days.  It appears to the 
 
            undersigned that the symptoms began to fully develop near 
 
            the end of Mr. Breeden's work shift on October 1, 1990.  
 
            Defendants seem to imply that it was the wood chopping that 
 
            initially caused Mr. Breeden's problems.  The record is 
 
            clear to the undersigned and the greater weight of evidence 
 
            indicates that there was no residual effect from the wood 
 
            chopping and if there was, there was no effect or 
 
            consequences to Mr. Breeden's working when he began his 
 
            shift at around 11:00 p.m. Sunday, September 30, 1990.  As 
 
            Dr. Evans indicated on more than one occasion, the chopping 
 
            of the wood would at most bring about from the facts as he 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            knew them, a muscle strain and not a ligament injury.  It is 
 
            obvious Dr. Evans felt that Mr. Breeden had, after knowing 
 
            all the history and medical information, a ligament injury 
 
            which would be caused by a sudden lifting or slipping 
 
            incident.
 
            
 
                 The undersigned finds that decedent did incur a work 
 
            injury on October 1, 1990, while working at defendant 
 
            employer and that this work injury arose out of and in the 
 
            course of decedent's employment.
 
            
 
                 There is considerable medical evidence as to the need 
 
            for surgery that decedent had on October 31, 1990.   
 
            Defendants contend that notwithstanding whether decedent 
 
            incurred a work injury which injury they also denied, the 
 
            surgery was not for a herniated disc but was to remove a 
 
            tumor at C3.
 
            
 
                 Mr. Breeden sought medical treatment immediately 
 
            thereafter within a few days of October 1, 1990, for a 
 
            herniated disc condition and this condition was verified by 
 
            Dr. Erwood ordering an MRI.  Dr. Evans also suspected a 
 
            herniated disc problem and he was ready to work up a 
 
            neurological referral report but instead Mr. Breeden went to 
 
            his own neurologist, Dr. Erwood (Def. Ex. C. pp. 36-37).
 
            
 
                 There is no dispute that the MRI was done because of 
 
            Dr. Erwood suspecting a herniated disc and he emphasized Mr. 
 
            Breeden's symptoms supported this suspicion.  Dr. Erwood's 
 
            suspicions were sustained but he also discovered a mass 
 
            tumor at C-3.  There is no evidence that the tumor was being 
 
            treated before the discovery or up until the surgery on 
 
            October 31, 1990.  Defendants contend that the October 31, 
 
            1990 surgery was mainly to remove the tumor and the disc was 
 
            secondary.  As we know, hindsight or second guessing is 
 
            always better and more accurate than facing the sometimes 
 
            unknown that exists even today notwithstanding the marvels 
 
            of sophisticated equipment and well trained medical 
 
            specialists.  This agency often sees medical specialists in 
 
            the same specialty taking totally opposite positions with 
 
            the same set of facts.
 
            
 
                 Dr. Erwood, the neurologist, emphatically stated that 
 
            Mr. Breeden's symptoms resulted from a disc problem and not 
 
            a tumor problem even though he agrees once the tumor was 
 
            found, it had to be removed.  There is no other neurologist 
 
            who disputes Dr. Erwood.  It would seem logical that 
 
            defendants would have hired a specialist in neurology if 
 
            they wanted to challenge or second guess the treating 
 
            neurologist and surgeon who had hands-on contact with the 
 
            Mr. Breeden's condition.  Defendants hired a pathologist, 
 
            who they have hired several times in the past, to look at 
 
            this case and judge the conduct of Dr. Erwood.
 
            
 
                 It is apparent on the record that Dr. Ervanian had a 
 
            long time relationship with defendants' attorney and its law 
 
            firm as far as testifying in workers' compensation cases.  
 
            With the facts of this case, the death certificate and 
 
            autopsy basically leaving the specific cause of death 
 
            unknown and subject to conjecture, it is not surprising that 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Dr. Ervanian took an opposite position than Dr. Erwood.  
 
            Claimant's attorney objected to the competency of the 
 
            pathologist who judged the conduct of a neurologist.  It is 
 
            undisputed that Dr. Ervanian agreed a neurologist is better 
 
            situated to make judgment as to decedent's situation than he 
 
            is as a pathologist.  Dr. Ervanian testified he has never 
 
            treated a neurological problem, never has done any surgery 
 
            and is no different than any pathologist.  It is obvious 
 
            that these things are out of his field.  The undersigned 
 
            believes that Dr. Ervanian, a pathologist, is not competent 
 
            to judge Dr. Erwood, a neurologist and surgeon, even though 
 
            both are doctors.
 
            
 
                 This agency's experience has been that even within a 
 
            specialty there are specialties.  You can have a 
 
            gastroentologist that only diagnoses but does not do the 
 
            surgery.  You can have an orthopedist who will do only the 
 
            back and not knees, etc.  You would not have an orthopedist 
 
            judge an oncologist.  It is obvious that Dr. Ervanian knew 
 
            the direction that his client would like this case to go.
 
            
 
                 Dr. Ervanian further admitted his lack of neurological 
 
            expertise and this is exhibited in his answers to questions 
 
            concerning C-3 symptoms and yet he is trying to contradict 
 
            or disagree with a neurologist on a very key item.  Dr. 
 
            Ervanian admitted that Dr. Erwood is in a better position to 
 
            determine this question (Cl. Ex. S, p. 19).  The doctor 
 
            again by his answers realizes that the question as to Mr. 
 
            Breeden's surgery should be answered by a neurosurgeon (Cl. 
 
            Ex. S, p. 55).
 
            
 
                 Having one specialist in a different field trying to 
 
            impeach or challenge a judgment of another specialist on the 
 
            facts of this case would be similar if one would have a 
 
            lawyer who works as a probate-nonlitigation specialist judge 
 
            the conduct of another lawyer who is a personal injury 
 
            litigation specialist.
 
            
 
                 Dr. Erwood decided to do both of these surgeries on the 
 
            same day.  This seemed logical as he thought it would be 
 
            best for Mr. Breeden's benefit so as to save Mr. Breeden 
 
            from two separate surgeries, two anesthetics, two recovery 
 
            periods, two loss times from work, etc.  If Dr. Erwood had 
 
            not done both of these surgeries the same day, he would most 
 
            likely have been criticized.
 
            
 
                 The undersigned believes that taking all the evidence 
 
            as a whole, and considering the times certain judgment calls 
 
            were made, that Mr. Breeden needed C-7 neck surgery and that 
 
            this was the primary reason for decedent's surgery on 
 
            October 31, 1990, and the undersigned so finds.  It is 
 
            immaterial which surgery took longer or which was first and 
 
            which was last.  This again was a judgment call and 
 
            hindsight is always better than foresight.  It is true that 
 
            the longer one is under anesthetic or the more surgeries, 
 
            the greater the risk but two separate surgeries and two 
 
            separate anesthetics also carry risks.  Anything can go 
 
            wrong when surgery is performed.
 
            
 
                 The fact that a disc fragment was not found is not per 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            se indicative that decedent did not have a disc problem as 
 
            Dr. Erwood emphasized.  It appears that he decompressed a 
 
            nerve and that alone was worth surgery at C-7.  It is also 
 
            obvious that because Dr. Erwood decided that both surgeries 
 
            would be done the same day, the necessity of going from the 
 
            rear instead of the front made the C-7 more difficult.  It 
 
            would appear that if he was going to do these surgeries 
 
            separately, he would do the C-7 from the front, but would 
 
            have to do the C-3 from the posterior.  It would not take 
 
            much intelligence to realize the criticism Dr. Erwood would 
 
            have if he planned these two separate surgeries going from 
 
            the front on the one and the rear on the other.  Again, the 
 
            undersigned is surprised by the fact that if Dr. Erwood's 
 
            judgement and procedures were going to be challenged, that 
 
            it wouldn't be another neurological surgeon.  The fact Dr. 
 
            Ervanian is a long-time acquaintance and workers' 
 
            compensation testifier for defendants' attorney helps 
 
            explain a pathologist challenging a neurologist.  The 
 
            undersigned is not impressed and agrees with the claimant's 
 
            contention that Dr. Ervanian is not competent on the key 
 
            issues herein to challenge a neurologist.
 
            
 
                 The undersigned finds that decedent's primary reason 
 
            for surgery was because of the herniated disc which 
 
            ultimately ended up a nerve compression and that the C-7 
 
            problem was the primary cause of Mr. Breeden having the 
 
            surgery ultimately which resulted in Mr. Breeden dying 
 
            during the operating procedures.
 
            
 
                 The undersigned further finds that had it not been for 
 
            decedent's work injury which involved his C-7 cervical area 
 
            on October 31, 1990, decedent would not have had an MRI that 
 
            was done to further clarify decedent's C-7 area problem and 
 
            decedent would not have had surgery at all, particularly on 
 
            October 31, 1990, and that had it not been for the MRI which 
 
            was brought about by the October 31, 1990 work injury, a 
 
            tumor would not have been discovered at C-3.
 
            
 
                 The undersigned further finds that had the MRI not been 
 
            done which was because of the October 31, 1990 injury there 
 
            would not have been tumor surgery performed on October 31, 
 
            1990.
 
            
 
                 The undersigned further finds that decedent's C-3 tumor 
 
            was not symptomatic up to his October 31, 1990 surgery and 
 
            that decedent's time off from work from October 1, 1990 
 
            through October 31, 1990, was the result of his work injury 
 
            and C-7 disc compressed nerve problem.
 
            
 
                 Therefore, the undersigned finds that the cause of dece
 
            dent's death on October 31, 1990, was because it ultimately 
 
            resulted from decedent's work injury on October 1, 1990 and 
 
            ultimate need for surgery to correct the work injury at C-7.  
 
            Decedent's reason for entering the hospital was primarily 
 
            for the events originating from decedent's October 1, 1990 
 
            work injury.
 
            
 
                                conclusions of law
 
            
 
                 An employee is entitled to compensation for any and all 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that claimant's decedent's 
 
            injury of October 1, 1990, is causally related to the 
 
            disability on which she now bases her claim.  Bodish v. 
 
            Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl 
 
            v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
            possibility is insufficient; a probability is necessary.  
 
            Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 
 
            73 N.W.2d 732 (1955).  The question of causal connection is 
 
            essentially within the domain of expert testimony.  Bradshaw 
 
            v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
            (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
     
 
            
 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            It is further concluded that:
 
            
 
                 Decedent incurred a disc and nerve compression injury 
 
            at C-7 on October 1, 1990, that arose out of and in the 
 
            course of decedent's employment causing him to be 
 
            hospitalized and have a C-7 surgery on October 31, 1990.
 
            
 
                 Decedent's October 1, 1990 work injury which required 
 
            hospitalization and surgery on October 31, 1990, ultimately 
 
            resulted in his death on October 31, 1990.
 
            
 
                 Decedent's C-3 tumor contributed to and complicated and 
 
            increased decedent's risk on October 31, 1990, but was 
 
            discovered sequelally to decedent's disc and compressed 
 
            nerve injury on October 1, 1990, and that this C-3 tumor 
 
            which was discovered as a result of an MRI performed because 
 
            of decedent's October 1, 1990 C-7 injury was not in and of 
 
            itself the cause of or the reason for decedent's October 31, 
 
            1990 surgery.
 
            
 
                 Decedent's death was caused by the surgical process 
 
            initiated primarily by his work injury on October 1, 1990.
 
            
 
                 A pathologist is not competent to override and 
 
            challenge the judgment and surgical procedure performed by a 
 
            qualified competent neurologist surgeon.
 
            
 
                 Claimant is entitled to the temporary total disability 
 
            benefits from October 1, 1990 through October 31, 1990, at 
 
            the weekly rate of $613.75.
 
            
 
                 Teresa Breeding is the surviving spouse of the 
 
            deceased, Daniel Breeden, and has not remarried.
 
            
 
                 Daniel Breeden, the deceased, left three dependent 
 
            children who were entirely dependent upon his earnings.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant is entitled to four point two (4.2) weeks 
 
            of temporary total disability benefits at the rate of six 
 
            hundred thirteen and 75/100 dollars ($613.75) for the period 
 
            of October 1, 1990 through October 31, 1990.
 
            
 
                 That defendants shall pay to Teresa Breeden, surviving 
 
            spouse, six hundred thirteen and 75/100 dollars ($613.75) 
 
            per week for the remainder of her life or until she 
 
            remarries, provided that upon her remarriage two (2) years 
 
            of benefits will be paid to her in a lump sum if there are 
 
            no children entitled to benefits.
 
            
 
                 That defendants shall pay to the dependent children of 
 
            decedent Daniel Breeden if Teresa Breeden, the surviving 
 
            spouse, remarries, six hundred thirteen and 75/100 dollars 
 
            ($613.75) per week until the children reach the age of 18 
 
            provided that a child beyond 18 years of age shall receive 
 
            benefits to the age of 25 if actually dependent, and the 
 
            fact that a child is under 25 years of age and enrolled as a 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            full-time student in any accredited educational institution 
 
            shall be a prima facie showing of actual dependency, all as 
 
            provided under Iowa Code section 85.31.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The parties stipulated 
 
            that nine hundred eight and 57/100 dollars ($908.57) of sick 
 
            pay was paid by defendants.
 
            
 
                 That defendants shall pay four thousand dollars 
 
            ($4,000) to the Second Injury Fund of Iowa, as provided by 
 
            Iowa Code section 86.64.
 
            
 
                 That defendants shall pay the burial expenses in the 
 
            amount of one thousand dollars ($1,000), as provided in Iowa 
 
            Code section 85.25.
 
            
 
                 That defendants shall pay any medical and hospital 
 
            bills incurred as a result of this injury and decedent's 
 
            death.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Roger J Hudson
 
            Mr Steven H Shindler
 
            Attorneys at Law
 
            1000 Equitable Bldg
 
            Des Moines IA 50309
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
            Mr Frank T Harrison
 
            Attorney at Law
 
            Terrace Ctr  Ste 111
 
            2700 Grand Ave
 
            Des Moines IA 50312
 
            
 
            Mr Alan Anderson
 
            Attorney at Law
 
            P O Box 245
 
            Polk City IA 50226
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          1100; 1108; 1805, 2600
 
                                          Filed February 27, 1992
 
                                          Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TERESA A. BREEDEN, Surviving  :
 
            Spouse of DANIEL K. BREEDEN,  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 966020
 
            FIRESTONE TIRE AND RUBBER     :
 
            COMPANY,                      :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANIES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1100
 
            Found Mr. Breeden's (deceased) injury arose out of and in 
 
            the course of his employment on October 1, 1990.
 
            
 
            1108
 
            
 
            Found Mr. Breeden's C-7 disc-nerve compression, caused by an 
 
            October 1, 1990 work injury, as the primary reason for and 
 
            cause of his October 31, 1990 surgery and cause of death on 
 
            the operating table on October 31, 1990.
 
            Found that Mr. Breeden's C-3 benign tumor found as a result 
 
            of an MRI done to further analyze his C-7 disc problem, was 
 
            not the primary cause of his surgery or his death on the 
 
            operating table on October 31, 1990.  The doctor decided to 
 
            do both operations on same day, one after the other.  The 
 
            C-7 was done first and the C-3 last.
 
            
 
            2600
 
            Found that a pathologist who never has treated disc 
 
            problems, nor treated patients, nor perform surgery, nor 
 
            talked to claimant or the neurologist, was not competent to 
 
            challenge and override a neurosurgeon and second guess his 
 
            opinion as to the cause of Mr. Breeden's symptoms, reason 
 
            for surgery and ultimate cause of death under circumstance 
 
            of the case.
 

 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            1805
 
            Found that although actual cause of death was not 
 
            specifically known even after an autopsy was done, the fact 
 
            that the work injury caused Mr. Breeden to have the surgery 
 
            and claimant's unfortunate death results in the defendants 
 
            being liable for the results of the surgery and Mr. 
 
            Breeden's death.
 
            This action was brought by Teresa Breeden, surviving spouse 
 
            of Daniel Breeden.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISISONER
 
            ____________________________________________________________
 
                                          :
 
            PHILLIP RAY,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  966038
 
            CRANE VALVES,                 :                1016382
 
                                          :
 
                 Employer,                :    A R B I T R A T I O N
 
                                          :
 
            and                           :       D E C I S I O N
 
                                          :
 
            CIGNA PROPERTY AND CASUALTY   :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Phillip Ray, against his former employer, Crane 
 
            Valves and its insurance carrier, Pacific Employers 
 
            Insurance.  Mr. Ray seeks additional workers' compensation 
 
            benefits as a result of work-related injuries he sustained 
 
            on September 4, 1990 (agency file number 966038) and 
 
            February 19, 1992 (agency file number 1016382).  
 
            
 
                 This matter came on for hearing on August 2, 1993 at 
 
            Oskaloosa, Iowa.  The record in the case consists of 
 
            testimony from the claimant, Tresa Ray, claimant's wife, 
 
            Phyllis Scheeler, a nurse employed by Crane Valve, and 
 
            Brenda Perry, Human Resources Manager and Plant Comptroller 
 
            for Crane Valve; claimant's exhibits 50 and 51; and, joint 
 
            exhibits 1-7.  The case was considered fully submitted at 
 
            the close of the hearing.  
 
            
 
                                      ISSUES
 
            
 
                 For file number 966038, the parties submitted the 
 
            following issues for resolution:
 
            
 
                 1.  Whether claimant sustained a 10 percent loss of use 
 
            of his hand or a 9 percent loss of use of his upper 
 
            extremity due to the work injury of September 4, 1990; and,
 
            
 
                 2.  Claimant's correct workers' compensation rate.  The 
 
            parties were able to agree that at the time of this injury, 
 
            claimant was married and entitled to five exemptions. 
 
            
 
                 For file number 1016382, the parties submitted the 
 
            following issues for resolution:
 
            
 
                 1.  Whether claimant sustained a permanent disability 
 
            due to the work-related injury of February 19, 1992; 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 2.  Whether claimant is entitled to permanent partial 
 
            disability benefits due to the injury of February 19, 1992; 
 
            and, 
 
            
 
                 3.  Claimant's correct workers' compensation rate.  The 
 
            parties were able to agree that at the time of this injury, 
 
            claimant was married and entitled to five exemptions. 
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Phillip Ray was born on October 19, 1955, and 
 
            was 38 years of age at the time of the hearing.  
 
            
 
                 Mr. Ray began working as a grinder for the defendant 
 
            employer in February of 1990.  As a grinder, claimant's job 
 
            duties included working with numerous air tools (chisels and 
 
            sanders) to refine castings.  These tools produced an 
 
            extensive amount of vibrations.  The employer provided 
 
            gloves to claimant to help alleviate the vibrations.
 
            
 
                 On September 4, 1990, claimant was called upon to help 
 
            in a different department.  He was to transfer molten metal 
 
            from the induction oven to a ladle.  While performing his 
 
            duties, his left hand caught between the ladle and a 
 
            platform, and claimant sustained a crush injury to the left 
 
            hand (Joint Exhibit 4, page 1).  He went to the company 
 
            nurse, and was sent to the Washington County Hospital, 
 
            Oskaloosa, Iowa.  Due to the severity of the injury, 
 
            claimant was referred to a specialist at the University of 
 
            Iowa Hospitals and Clinics in Iowa City, Iowa.  He was 
 
            treated by William Blair, M.D., and Kent Pearson, M.D., and 
 
            underwent surgery to repair a fractured left index finger 
 
            (Jt Ex. 1, pages 1-9).  Subsequent follow-up visits to Dr. 
 
            Blair indicate that claimant was recovering well from the 
 
            injury and surgery, and it was recommended that he begin 
 
            physical therapy (Jt. Ex. 1, pp. 10-15).  From October 8 
 
            through October 17, 1990, claimant underwent six therapy 
 
            sessions at the University of Iowa, and the record reveals 
 
            that he was compliant with all directions given to him (Jt. 
 
            Ex. 1, pp. 16-22).  Claimant was then referred to the 
 
            physical therapy department at Washington County Hospital in 
 
            Oskaloosa, Iowa, and met with Pam Hazell on October 23, 
 
            1990.  Ms. Hazell noted swelling and severe sensitivity in 
 
            the left index finger, and claimant continued both on-site 
 
            therapy sessions as well as a home exercise program (Jt. Ex. 
 
            1, pp. 24-29).  
 
            
 
                 On November 26, 1990, claimant returned to Dr. Blair, 
 
            whose physical examination revealed less swelling and 
 
            limited range of motion in the left index finger.  Dr. Blair 
 
            recommended additional physical therapy sessions and  
 
            continued use of a dynamic orthotic (Jt. Ex. 1, p. 31).  
 
            
 
                 While additional notes from Dr. Blair indicate that 
 
            claimant had continued his therapy with Washington County 
 
            Hospital, the undersigned was unable to locate any notes 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            from the physical therapist that chart claimant's progress 
 
            after November 16, 1990.  In any event, Dr. Blair's 
 
            management of claimant's condition continued until February 
 
            11, 1991.  At that time, he was released, and instructed to 
 
            return to the clinic on an as-needed basis (Jt. Ex. 1, pp. 
 
            30-36).  
 
            
 
                 On February 28, 1991, Dr. Blair provided  the claimant 
 
            with discharge instructions, and recommended that he return 
 
            to work on March 2, 1991, and perform only partial duty 
 
            until March 9, 1991 (Jt. Ex. 1, p 38).  Additionally, Dr. 
 
            Blair provided the defendant insurance carrier with a report 
 
            which delineated claimant's permanent functional impairment.  
 
            Using the AMA Guides to the Evaluation of Permanent 
 
            Impairment, he believed claimant had sustained a 50 percent 
 
            impairment to the "right (sic) index finger.  This is based 
 
            upon his loss of active motion.  This 50% impairment is 
 
            equivalent to a 10% impairment of  his left hand, which is 
 
            equivalent to a 9% impairment of the left upper extremity.  
 
            The loss of motion is permanent, and we anticipate no 
 
            additional surgical treatment for this condition."  (Jt. Ex. 
 
            1, pp. 37)  Essentially the same report was provided to 
 
            claimant's counsel on July 6, 1992 (Jt. Ex. 1, p. 46).  
 
            
 
                 During the next several months, claimant was assigned 
 
            to  several positions with the company, including lead man 
 
            in the grinding room, which involved supervision and some 
 
            grinding detail; a position as painter, which required him 
 
            to use an electric gun to paint various parts; and, his 
 
            prior job duties as a grinder.
 
            
 
                 Once claimant returned to his regular, full-time 
 
            position as a grinder, he began to experience pain and 
 
            numbness in both hands.  He complained to his supervisor, 
 
            Mr. Roberts, and was sent to the company nurse.  Ms. 
 
            Scheeler has no recollection of this visit, but according to 
 
            claimant, a report and medical record notations dated 
 
            February 21, 1992, claimant was sent to Pe-Hsun Tung, M.D., 
 
            due to his complaints of tingling and soreness in both arms 
 
            (Jt. Ex. 2, p. 2).  See also, an accident report dated 
 
            February 19, 1992 (Jt. Ex. 4, pp. 1-2).  After an 
 
            examination which revealed positive Phalen's and Tinel's 
 
            tests bilaterally, claimant was scheduled for an EMG, which 
 
            indicated that claimant had a mild degree of carpal tunnel 
 
            in both wrists (Jt. Ex. 2, pp. 1-3).  
 
            
 
                 Dr. Tung performed carpal tunnel release surgery on the 
 
            right wrist on April 16, 1992 (Jt. Ex. 7, pp. 1-3) and on 
 
            the left wrist on May 28, 1992.  He provided follow-up care 
 
            until August 20, 1992 when he released claimant to return to 
 
            work, and rendered an opinion regarding any permanent 
 
            impairment caused by claimant's condition and the surgeries 
 
            (Jt. Ex. 2, pp. 4-10).  Dr. Tung examined claimant, and 
 
            using the AMA Guide to the Evaluation of Permanent 
 
            Impairment, did not assign any permanent impairment (Jt. Ex. 
 
            2, p. 11).  
 
            
 
                 In August of 1992, claimant sought from Dr. Blair a 
 
            second opinion addressing possible permanent impairment due 
 
            to the carpal tunnel syndrome and releases.  A physical 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            examination revealed that claimant had full active and 
 
            passive range of motion of all digits except the left index 
 
            finger.  Tinel's and Phalen's tests were negative, as were 
 
            hyperflexion tests.  Dr. Blair, observing that claimant 
 
            displayed some loss of grip strength, and presented with 
 
            persistent symptoms such as fatigue, assigned a two percent 
 
            impairment to the right hand and three percent impairment to 
 
            the left hand.  He converted both ratings to the upper 
 
            extremities, which are equivalent to two percent and three 
 
            percent to the right and left extremities, respectively (Jt. 
 
            Ex. 1, pp. 49-50).  
 
            
 
                 Claimant's personnel file is also a portion of the 
 
            evidence (Jt. Ex. 6). 
 
            
 
                 Finally, the parties submitted various figures in order 
 
            to determine claimant's workers' compensation rate.  
 
            
 
                 Claimant argues that for the September 4, 1990 injury, 
 
            his workers' compensation rate is $269.24 per week based on 
 
            gross weekly earnings of $5,259.52 and the applicable 
 
            exemptions. (Claimant's exhibit 50).  Defendants argue that 
 
            claimant's rate is $265.80 based on gross weekly earnings of 
 
            $4,750.33 and the applicable exemptions.  
 
            
 
                 For the February 19, 1992 injury, claimant believes his 
 
            rate is $260.45 per week based on gross weekly earnings of 
 
            $5,034.29 and the applicable exemptions; defendants believe 
 
            claimant's rate is $248.00 based on gross weekly earnings of 
 
            $4,750.33.  Defendants paid weekly benefits at $294.42 or 
 
            $248.00 per week for this injury.  
 
            
 
                 Claimant testified that he worked overtime hours on 
 
            occasion.  Some of the hours were mandatory, and some of the 
 
            hours worked were worked on a voluntary basis.  The 
 
            voluntary hours were offered to any employee who was able to 
 
            perform the specific job duties needed. 
 
            
 
                 The employer periodically laid off employees, and 
 
            claimant  testified that he voluntarily quit his job in 
 
            April of 1992, after being subjected to another in a series 
 
            of lay-offs.
 
            
 
                 Currently, claimant is self-employed as a truck driver. 
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
            AGENCY FILE NUMBER 966038
 
            
 
                 The first issue to be addressed is whether claimant has 
 
            sustained a 10 percent impairment to his hand, or whether 
 
            claimant sustained a 9 percent impairment to his left upper 
 
            extremity.
 
            
 
                 Iowa Code section 85.34(2) states, in pertinent part:
 
            
 
                    Permanent partial disabilities.  Compensation 
 
                 for permanent partial disability shall begin at 
 
                 the termination of the healing period provided in 
 
                 subsection 1 of this section....For all cases of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 permanent partial disability compensation shall be 
 
                 paid as follows:
 
            
 
                    ....
 
            
 
                    b.  For the loss of a first finger, commonly 
 
                 called the index finger, weekly compensation 
 
                 during thirty-five weeks.
 
            
 
                    ....
 
            
 
                    l.  For the loss of a hand, weekly compensation 
 
                 during one hundred ninety weeks.
 
            
 
                    m.  The loss of two-thirds of that part of an 
 
                 arm between the shoulder joint and the elbow joint 
 
                 shall equal the loss of an arm and the 
 
                 compensation therefor shall be weekly compensation 
 
                 during two hundred fifty weeks.
 
            
 
                 There is no evidence in the record which even remotely 
 
            suggests that claimant has sustained a permanent impairment 
 
            to his left upper extremity due to the crush injury he 
 
            sustained on September 4, 1990.  While it is noted that Dr. 
 
            Blair provided ratings addressing the loss to the index 
 
            finger, and then converted the rating to both the hand and 
 
            upper extremity, his examinations and notes indicate that 
 
            claimant has sustained a loss of range of motion of the left 
 
            index finger.  Claimant testified that the only residual 
 
            problem he has due to the crush injury is an inability to 
 
            fully bend his finger.  There is no evidence that his 
 
            impairment invades the hand or the upper extremity.  As the 
 
            agency has stated many times, it is the anatomical situs of 
 
            the impairment which determines whether the schedules in 
 
            section 85.34(2)(a)-(t) are used.  There is no doubt that 
 
            the schedules do apply, and that claimant permanent 
 
            impairment is to the left index finger.
 
            
 
                 As a result, it is found that claimant has sustained a 
 
            50 percent impairment to his left index finger.  Using the 
 
            schedule, claimant is entitled to 17.5 weeks of permanent 
 
            partial disability benefits due to this injury.
 
            
 
                 The next issue to address is claimant's rate.
 
            
 
                 Iowa Code section 85.36 provides, in relevant part:
 
            
 
                    The basis of compensation shall be the weekly 
 
                 earnings of the injured employee at the time of 
 
                 the injury.
 
            
 
                    ....
 
            
 
                    6.  In the case of an employee who is paid on a 
 
                 daily, or hourly basis, or by the output of the 
 
                 employee, the weekly earnings shall be computed by 
 
                 dividing by thirteen the earnings, not including 
 
                 overtime or premium pay, of said employee earned 
 
                 in the employ of the employer in the last 
 
                 completed period of thirteen consecutive calendar 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 weeks immediately preceding the injury.
 
            
 
                 Rule 343 IAC 8.2 provides the following information:
 
            
 
                    The word "overtime" as used in Iowa Code 
 
                 section 85.61 means amounts due in excess of the 
 
                 straight time rate for overtime hours worked.  
 
                 Such excess amounts shall not be considered in 
 
                 determining gross weekly wages within Iowa Code 
 
                 section 85.36.  Overtime hours at the straight 
 
                 time rate are included in determining gross weekly 
 
                 earnings.
 
            
 
                 Claimant's rate is easily determined.  Defendants argue 
 
            that overtime hours worked by claimant should not be 
 
            included in his rate calculation because he volunteered to 
 
            work the overtime hours.  Claimant testified that some of 
 
            the overtime hours were mandatory, and some were voluntary. 
 
            
 
                 The undersigned is unable to find any authority for 
 
            defendants' argument.  Whether the overtime hours worked 
 
            were voluntary is irrelevant.  Claimant was paid for the 
 
            overtime hours worked, and as a result, they are calculated 
 
            at straight time and are included in determining gross 
 
            weekly earnings.  
 
            
 
                 Claimant's gross weekly earnings for the thirteen weeks 
 
            prior to his injury were $5,259.52, divided by 13 equals 
 
            $404.58.  Pursuant to the July, 1990 Guide To Iowa Workers' 
 
            Compensation Claim Handling, claimant's workers compensation 
 
            rate is $269.24 for the September 4, 1990 injury date. 
 
            
 
            AGENCY FILE NUMBER 1016382
 
            
 
                 The first issue to be addressed is whether claimant 
 
            sustained a permanent disability due to the carpal tunnel 
 
            symptoms caused by his work which manifested themselves on  
 
            February 19, 1992.  If it is determined that claimant has 
 
            sustained any permanency due to this injury, the amount of 
 
            permanent partial disability benefits to which he is 
 
            entitled will be determined under Iowa Code section 
 
            85.34(2)(s). 
 
            
 
                 Dr. Tung was the treating physician with respect to the 
 
            diagnosis and treatment of the carpal tunnel problems.  Once 
 
            he had completed his management of the case and released 
 
            claimant to return to work, he did not detect any permanent 
 
            impairment to either wrist.  
 
            
 
                 A second opinion, given by Dr. Blair, states that 
 
            claimant has sustained minimal impairments of two percent to 
 
            the right hand, and three percent to the left hand.  
 
            
 
                 A treating physician's testimony is not entitled to 
 
            greater weight as a matter of law than that of a physician 
 
            who later examines claimant in anticipation of litigation.  
 
            Weight to be given testimony of physician is a fact issue to 
 
            be decided by the industrial commissioner in light of the 
 
            record the parties develop.  In this regard, both parties 
 
            may develop facts as to the physician's employment in 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            connection with litigation, if so; the physician's 
 
            examination at a later date and not when the injuries were 
 
            fresh; the arrangements as to compensation; the extent and 
 
            nature of the physician's examination; the physician's 
 
            education, experience, training, and practice; and all other 
 
            factors which bear upon the weight and value of the 
 
            physician's testimony may be considered.  Both parties may 
 
            bring all this information to the attention of the 
 
            factfinder as either supporting or weakening the physician's 
 
            testimony and opinion.  All factors go the value of the 
 
            physician's testimony as a matter of fact not as a matter of 
 
            law.  Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 
 
            187, 192 (Iowa 1985).
 
            
 
                 A wrist injury generally is an injury to the hand, not 
 
            the upper extremity.  The hand extends to the distal end of 
 
            the radius and ulna, including the carpus or wrist.  Elam v. 
 
            Midland Mfg., II Iowa Industrial Commissioner Report 141 
 
            (App. 1981).
 
            
 
                 Claimant's own testimony is the most dependable factor 
 
            in finding that he has not sustained any permanent 
 
            impairment due to the carpal tunnel syndromes and subsequent 
 
            surgeries.  During the hearing, he maintained that he had 
 
            received a very good result from the surgeries.  His main 
 
            concern was the residual pain and loss of range of motion in 
 
            his left index finger. 
 
            
 
                 As a result, it is found that claimant has not 
 
            sustained a permanent impairment to either hand due to the 
 
            carpal tunnel surgeries.  Claimant takes nothing for this 
 
            cause of action.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits totaling seventeen point five (17.5) 
 
            weeks at the rate of two hundred sixty-nine and 24/100 
 
            dollars ($269.24) per week commencing March 2, 1991.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by the agency pursuant to 
 
            rule 343 IAC 3.1. 
 
            
 
                 Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Bruce L Walker
 
            Attorney at Law
 
            321 Market St
 
            P O Box 2150
 
            Iowa City IA 52244-2150
 
            
 
            Mr Mark A Woollums
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E Third St
 
            Davenport IA 52801-1596
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-1800
 
                                               Filed August 13, 1993
 
                                               Patricia J. Lantz
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            PHILLIP RAY,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  966038
 
            CRANE VALVES,                 :                1016382
 
                                          :
 
                 Employer,                :    A R B I T R A T I O N
 
                                          :
 
            and                           :       D E C I S I O N
 
                                          :
 
            CIGNA PROPERTY AND CASUALTY   :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1800
 
            Claimant awarded 17.5 weeks due to 50% loss of use of index 
 
            finger.