before the iowa industrial commissioner
 
         _________________________________________________________________
 
                                         :
 
         BEVERLY R. RANSOM,              :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :        File No. 974073
 
         HARDEE'S, DENISON, IOWA,        :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         AMERICAN FAMILY INSURANCE       :
 
         COMPANY,                        :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         July 8, 1992 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 December, 1992.
 
         
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Jeffrey A. Sar
 
         Attorney at Law
 
         P.O. Box 717
 
         Sioux City, Iowa 51102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          9998
 
                                          Filed December 21, 1992
 
                                          BYRON K. ORTON
 
                                          DRR
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            BEVERLY R. RANSOM,              :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :        File No. 974073
 
            HARDEE'S, DENISON, IOWA,        :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            AMERICAN FAMILY INSURANCE       :
 
            COMPANY,                        :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            _____
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed July 8, 
 
            1992.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BEVERLY R. RANSOM,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 974073
 
                                          :
 
            HARDEE'S, DENISON, IOWA,      :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AMERICAN FAMILY INSURANCE     :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant Beverly Ransom seeks benefits under the Iowa 
 
            Workers' Compensation Act upon a petition in arbitration 
 
            against employer Hardee's, Denison, Iowa, and its insurance 
 
            carrier, American Family Insurance Company.  She alleges a 
 
            cumulative trauma injury to the hand, arm and shoulder of 
 
            April 3, 1989.
 
            
 
                 This cause came on for hearing in Sioux City, Iowa, on 
 
            April 29, 1992.  The record consists of joint exhibits 1 
 
            through 31 and the testimony of claimant, Steve Ransom, 
 
            Sharon Lapel and Kimberly Kohlm.
 
            
 
                                      ISSUES
 
            
 
                 The parties have stipulated to the existence of an 
 
            employment relationship on or about April 3, 1989; to 
 
            healing period or temporary total disability entitlement (if 
 
            liability is established) from May 31 through July 12, 1989; 
 
            to the rate of compensation; and, that certain benefits were 
 
            voluntarily paid prior to hearing.
 
            
 
                 Issues presented for resolution include:
 
            
 
                 1.  Whether claimant sustained an injury arising out of 
 
            and in the course of her employment on April 3, 1989;
 
            
 
                 2.  The nature and extent of permanent disability, if 
 
            any;
 
            
 
                 3.  The extent of entitlement to medical benefits;
 
            
 
                 4.  Whether the claim is barred as untimely under Iowa 
 
            Code section 85.26; and,
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 5.  Whether the claim is barred for failure to give 
 
            timely notice under Iowa Code section 85.23.
 
            
 
                 Defendants stipulated that the providers of medical 
 
            services would testify, in the absence of contrary evidence, 
 
            that fees were reasonable and provided for reasonable and 
 
            necessary treatment, but dispute whether those expenses are 
 
            causally connected to the work injury or whether they were 
 
            authorized.  The authorization defense was ruled invalid at 
 
            hearing because defendants denied that claimant sustained an 
 
            injury arising out of and in the course of employment, both 
 
            in their answer and at the time of prehearing conference.  
 
            By doing so, they forfeit the right to control the care.  
 
            Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner 
 
            Report 16 (1981).
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Beverly Ransom, 39 year of age at hearing, is a 
 
            right-hand dominant female who left school in the eleventh 
 
            grade.  Her only further education consists of on-the-job 
 
            instruction as a nurse's aide.
 
            
 
                 Beginning at age 18, claimant worked for less than a 
 
            year bagging hamburger in a packing house, then for about 
 
            one year as a waitress, and followed this with approximately 
 
            one year's employment as a nurse's aide in a residential 
 
            facility.  Claimant was then out of the labor market for 
 
            approximately eight years before accepting work with 
 
            defendant Hardee's in December 1983.  Defendant is a fast 
 
            food restaurant, part of a well-known national chain.
 
            
 
                 Prior to accepting work with Hardee's, claimant says 
 
            she experienced no health problems, particularly to the 
 
            right upper extremity.  She started as a cashier, but has 
 
            also made salads, cooked, made biscuits, acted as a crew 
 
            leader, and became a supervisor in approximately 1987.  She 
 
            was promoted to assistant manager in August 1990 and was so 
 
            employed on the date of hearing.
 
            
 
                 Claimant's recollection as to her history of right 
 
            upper extremity problems has been shown to be unreliable.  
 
            She has given multiple and conflicting histories to 
 
            different doctors and in her testimony by deposition (on 
 
            March 5, 1992) and at hearing.  She agrees, as well she 
 
            should, that contemporaneous medical records are more 
 
            reliable.
 
            
 
                 Claimant was treated by a chiropractor, Ronald Dreyer, 
 
            D.C., beginning at least in 1978.  An undated health 
 
            history, which is assumed to have been taken at the first 
 
            visit, notes pain between the shoulder blades, neck and 
 
            shoulders for eight years with nightly throbbing pain 
 
            between the shoulders.  Although Dr. Dreyer's notes are 
 
            largely illegible to this eye, treatment specifically to the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            right shoulder was begun as early as September 5, 1978.
 
            
 
                 Dr. Dreyer's notes of March 18, 1988, to the extent 
 
            legible, show complaints of right shoulder and arm pain 
 
            following the unloading of a truck, with loss of sensation 
 
            "RUT" (possibly right upper thorax?) to the right shoulder.  
 
            Another notation, unreadable here, is referred to as 
 
            approximately six months.  On March 19, chart notes reflect 
 
            improvement, but complaints of right arm numbness appear on 
 
            March 29.  Additional illegible chart notes appear on April 
 
            27, April 29, May 2, May 6, May 25 and August 26, 1988.  Dr. 
 
            Dreyer billed for services in March, April and May of that 
 
            year, and diagnosed a strain of the right upper trapezius 
 
            with attending cervicothoracic segmental dysfunction.  In 
 
            his report of April 22, 1988, Dr. Dreyer reported that he 
 
            believed the injury would not result in permanent 
 
            impairment.  His billings were apparently paid as a workers' 
 
            compensation injury by defendant Hardee's, which filed a 
 
            first report of injury reflecting a shoulder injury of March 
 
            18.  Claimant did not miss any time from work.
 
            
 
                 According to claimant, her right shoulder pain cleared 
 
            up after the 1988 incident.  However, it is clear that 
 
            claimant did not soon find relief from her symptoms.  Chart 
 
            notes of Dr. John Sinnott dated July 13, 1988, show 
 
            complaints of right shoulder pain with the onset "two months 
 
            ago" when claimant was lifting and unloading a truck for 
 
            Hardee's (no doubt the March 18 incident).  The notes 
 
            continue:
 
            
 
                 Since then her right arm tingles and is numbish.  
 
                 She has seen a physician, had some ultrasound 
 
                 without success.  Her pain is keeping her up at 
 
                 night, difficulty sleeping, cannot lie down.  Has 
 
                 been sleeping in a chair.  She had tenderness with 
 
                 some soreness in the palm of her right hand.
 
            
 
                 Dr. Sinnott, apparently a doctor of osteopathic, 
 
            further noted a rib lesion and treated claimant with "OMT" 
 
            (probably, osteopathic manipulative therapy).  On July 19, 
 
            Dr. Sinnott reported that the right arm and neck had 
 
            improved dramatically after treatment, but that symptoms 
 
            recurred on July 18.
 
            
 
                 Dr. Sinnott saw claimant again on March 13, 1989, with 
 
            complaints of numbness and tingling in the right hand.  
 
            Claimant reported that she pounded a lot of frozen foods at 
 
            Christmas time (claimant professed not to know where this 
 
            history came from) which seemed to aggravate her hand.  She 
 
            also complained of upper rib discomfort and upper shoulder 
 
            and neck discomfort.  Claimant was treated with manipulation 
 
            and seen again on March 28 with pain about the right hand 
 
            and arm.  At this point, Dr. Sinnott made a referral to 
 
            Thorir S. Ragnarsson, M.D.  Dr. Ragnarsson's chart notes of 
 
            April 10, 1989, show that claimant presented with a 
 
            nine-month history of right arm pain and numbness which she 
 
            related to an injury at work.  True to pattern, Dr. 
 
            Ragnarsson found claimant "not very specific" about her 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            injury, although reporting that she believed she had injured 
 
            her hand using a cutter at work in June of 1988, noting also 
 
            that claimant had been treated with chiropractic treatments.  
 
            This is an apparent reference to Dr. Dreyer's treatment 
 
            following the March 1988 incident.  However, the reference 
 
            to a "cutter" seems to relate to the "pounding ice" incident 
 
            at Christmas time, 1988.  Dr. Ragnarsson thought claimant 
 
            might have a rotator cuff tendonitis, with possibly a 
 
            cervical radiculopathy superimposed.  When he saw claimant 
 
            again in 1990, he suggested EMG testing to sort this out, 
 
            but it proved normal (apparently, an earlier EMG on May 3, 
 
            1989, was ambiguous, although no direct interpretation 
 
            appears of record).
 
            
 
                 Right hand and arm numbness continued to be troublesome 
 
            and were treated surgically by Quentin J. Durward, M.D., on 
 
            May 31, 1989:  a right carpal tunnel release.  On July 12, 
 
            1989, Dr. Durward reported that claimant had developed a 
 
            "terrible pain" in the right arm when cleaning her oven two 
 
            days before.  He thereupon rated claimant as having 
 
            sustained a ten percent impairment of the right upper 
 
            extremity, apparently referring to the carpal tunnel 
 
            release.
 
            
 
                 Claimant underwent physical therapy in January 1990.  
 
            Chart notes of January 16 reflect complaints that the 
 
            shoulder "catches" and reported the existence of palpable 
 
            crepitus.  On January 23, claimant reported the "clunking" 
 
            in her shoulder occurred less often.  These notes are more 
 
            consistent with a musculoskeletal problem than a 
 
            neurological problem.
 
            
 
                 On February 19, 1990, claimant was seen by Kevin 
 
            Liudahl, M.D.  Dr. Liudahl was given a history of shoulder 
 
            pain developing four months post-surgery.  His impression 
 
            was of right shoulder subacromial bursitis with impingement, 
 
            some symptoms questionable as to radicular type pain.  As of 
 
            March 12, after claimant was treated with injection, the 
 
            problem had nearly resolved.
 
            
 
                 Claimant was seen for evaluation by Anil K. Agarwal, 
 
            M.D., on August 30, 1990.  Dr. Agarwal also understood that 
 
            claimant injured her right upper extremity while using a 
 
            cutter at work in June 1988, although no such incident at 
 
            that time appears of record.  He diagnosed tendonitis of the 
 
            right shoulder, minimal cervical strain and post-carpal 
 
            tunnel syndrome.  He believed all care was directly related 
 
            to the workers' compensation claim, apparently referring to 
 
            the incident in June 1988, whatever that might be.  He rated 
 
            claimant as having sustained a two and one-half permanent 
 
            "disability and loss of physical function" of the right hand 
 
            and five percent permanent "disability and loss of physical 
 
            function" to the right upper extremity relating to shoulder 
 
            tendonitis.
 
            
 
                 Claimant was also seen for evaluation by Pat Luse, 
 
            D.C., a chiropractor, on February 3, 1992.  Claimant gave 
 
            Dr. Luse a history of being involved in a work-related 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            accident cutting shrimp on April 3, 1989, resulting in pain 
 
            in the wrist, arm and shoulder.
 
            
 
                 This incident has a curious and inconsistent history as 
 
            shown by the evidence.  Claimant requested that a first 
 
            report of injury be filled out by defendant on April 3, 
 
            1989.  She made no mention of any specific, traumatic 
 
            incident cutting frozen shrimp product (surimi), but advised 
 
            Sharon Lapel that the injury was cumulative in nature.  
 
            Lapel credibly testified that claimant made no mention of 
 
            shoulder problems, complaining of a repetitive injury to the 
 
            right wrist only (and, contrary to claimant's testimony, 
 
            said that no earlier report had been made).  On April 10, it 
 
            will be recalled that claimant told Dr. Ragnarsson that she 
 
            had been symptomatic for nine months, having injured her 
 
            hand using a cutter at work in June 1988.  In a statement to 
 
            an anonymous representative of defendant American Family 
 
            Insurance Company taken June 19, 1989, claimant stated that, 
 
            "Not one certain thing that triggered it."  No mention of a 
 
            cutting incident was made.
 
            
 
                 In her deposition testimony on March 5, 1992, claimant 
 
            clearly specified that the April 3, 1989, injury occurred 
 
            while she was cutting through frozen surimi with a knife.  
 
            But, in her trial testimony on April 29, she claimed an 
 
            onset of symptoms in early 1989, approximately one month 
 
            before the first report of injury.  She further indicated 
 
            that she had made excessive use of the right arm in late 
 
            1988 while unloading trucks, washing ceilings and walls, 
 
            mopping, making salads and lifting heavy cookers.  In her 
 
            deposition testimony, claimant denied hurting anything but 
 
            the hand (although also, and falsely, claiming that she had 
 
            never had shoulder problems prior to April 3, 1989).
 
            
 
                 It appears, based on the medical records, that the 
 
            cutting incident actually occurred around Christmas 1988 as 
 
            reported by Dr. Sinnott.
 
            
 
                 Dr. Luse indicated in his report that he had read the 
 
            other histories, but did not discuss the sequence of events 
 
            and reported complaints.  He found that claimant had 
 
            impairment to the right wrist (ten percent of the upper 
 
            extremity) and to the right shoulder (12 percent of the 
 
            upper extremity) and concluded that claimant's condition was 
 
            causally related to the "type of accident that this patient 
 
            had described" and repetitive motion work.  This reference 
 
            is apparently to the surimi cutting incident as the 
 
            "accident described."
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 She also has the burden of proving by a preponderance 
 
            of the evidence that the injury is a proximate cause of the 
 
            disability on which the claim is based.  A cause is 
 
            proximate if it is a substantial factor in bringing about 
 
            the result; it need not be the only cause.  A preponderance 
 
            of the evidence exists when the causal connection is 
 
            probable rather than merely possible.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. 
 
            Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 A personal injury contemplated by the workers' 
 
            compensation law means an injury, the impairment of health 
 
            or a disease resulting from an injury which comes about, not 
 
            through the natural building up and tearing down of the 
 
            human body, but because of trauma.  The injury must be 
 
            something which acts extraneously to the natural processes 
 
            of nature and thereby impairs the health, interrupts or 
 
            otherwise destroys or damages a part or all of the body.  
 
            Although many injuries 
 
            treatments and continued to complain to Dr. Sinnott some 
 
            four months later, when she still had a tingling and numb 
 
            right arm and pain such as to keep her up at night sleeping 
 
            in a chair.  The fact that medical bills were accrued (and 
 
            paid) shows that this injury was a compensable event.
 
            
 
                 But, defendants assert the defense of limitations under 
 
            Iowa Code section 85.26(1).  The statute provides:
 
            
 
                 An original proceeding for benefits under this 
 
                 chapter or chapter 85A, 85B, or 86, shall not be 
 
                 maintained in any contested case unless the 
 
                 proceeding is commenced within two years from the 
 
                 date of the occurrence of the injury for which 
 
                 benefits are claimed or, if weekly compensation 
 
                 benefits are paid under section 86.13, within 
 
                 three years from the date of the last payment of 
 
                 weekly compensation benefits.
 
            
 
                 No weekly benefits have been paid with respect to this 
 
            injury.  More than two years elapsed between the date of 
 
            injury (March 18, 1988) and the date claimant filed her 
 
            petition:  February 26, 1991.  Claimant cannot assert that 
 
            she only recently "discovered" this injury within the 
 
            meaning of the "discovery rule."  The two-year statute of 
 
            limitations starts running when claimant should know that 
 
            her injury is both serious and work connected.  Orr v. Lewis 
 
            Cent. School Dist., 298 N.W.2d 256 (Iowa 1980).  A 
 
            reasonable person standard is to be applied, taking into 
 
            account the intelligence and education of the worker.  
 
            Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980).  
 
            As of July, claimant had suffered four months of pain and 
 
            numbness and had required substantial medical attention from 
 
            two separate practitioners.  By that time, she should have 
 
            known that her injury was both serious and work connected.  
 
            Thus, the affirmative defense of limitations bars relief 
 
            with respect to the shoulder injury.
 
            
 
                 A different result obtains with respect to claimant's 
 
            wrist injury.  Although there may have been an exacerbation 
 
            during the surimi cutting incident at Christmas time 1988, 
 
            it seems clear that the development of these symptoms was 
 
            gradual in nature.  In this case, the injury date occurred 
 
            when, due to pain or physical inability, claimant was no 
 
            longer able to work.  McKeever Custom Cabinets v. Smith, 379 
 
            N.W.2d 368 (Iowa 1985).  This occurred when claimant 
 
            underwent her carpal tunnel release on May 31, 1989.  The 
 
            parties have stipulated to the extent of healing period and 
 
            agree that if claimant sustained an injury arising out of 
 
            and in the course of employment, it caused both temporary 
 
            and permanent disability.  Drs. Luse and Durward (the 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            treating surgeon) agree that the extent of impairment is 
 
            equivalent to ten percent of the upper extremity.  Under 
 
            Iowa Code section 85.34(2)(m), the arm is compensated during 
 
            250 weeks.  Accordingly, claimant shall be awarded 25 weeks 
 
            of permanent partial disability benefits.
 
            
 
                 Claimant also seeks an award of medical benefits with 
 
            respect to her treatment at the hands of Steven G. Oatman, 
 
            D.C.  The record shows that the treatment is chiropractic 
 
            manipulation and relates to the shoulder.  As noted, the 
 
            shoulder injury is not compensable in this proceeding due to 
 
            the bar of limitations.
 
            
 
                 The parties stipulated to a compensation rate of 
 
            $129.40.  Based upon claimant's gross weekly earnings 
 
            ($179.00), marital status (married) and five exemptions, the 
 
            proper rate is actually $129.43.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto claimant six point one four 
 
            three (6.143) weeks of healing period benefits at the rate 
 
            of one hundred twenty-nine and 43/100 dollars ($129.43) per 
 
            week commencing May 31, 1989.
 
            
 
                 Defendants shall pay unto claimant twenty-five (25) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of one hundred twenty-nine and 43/100 dollars ($129.43) per 
 
            week commencing July 13, 1989.
 
            
 
                 Defendants shall have credit for all benefits 
 
            voluntarily paid.
 
            
 
                 As all benefits have accrued, they shall be paid in a 
 
            lump sum together with statutory interest pursuant to Iowa 
 
            Code section 85.30.
 
            
 
                 Costs are assessed to defendants pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report upon 
 
            compliance with this decision pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Harry H. Smith
 
            Attorney at Law
 
            P.O. Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Jeffrey A. Sar
 
            Attorney at Law
 
            750 Pierce Street
 
            P.O. Box 717
 
            Sioux City, Iowa  51102
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1803; 2402
 
                                                   Filed July 8, 1992
 
                                                   DAVID RASEY
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BEVERLY R. RANSOM,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 974073
 
                                          :
 
            HARDEE'S, DENISON, IOWA,      :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            AMERICAN FAMILY INSURANCE     :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1803; 2402
 
            Claimant alleged multiple injuries on same date:  shoulder 
 
            and carpal tunnel syndrome.  However, the shoulder injury 
 
            had occurred over one year earlier and was barred by 
 
            limitations.  The scheduled injury was compensated.
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            LAURA SOUDER,     
 
                         
 
                 Claimant,    
 
                         
 
            vs.          
 
                                                   File No. 974074
 
            NATIONAL COMPUTER SYSTEMS, INC., 
 
                                                     A P P E A L
 
                 Employer,    
 
                                                    D E C I S I O N
 
            and          
 
                         
 
            THE ST. PAUL FIRE AND MARINE     
 
            INSURANCE COMPANY,     
 
                         
 
                 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 April 15, 1993 is affirmed and is adopted as the final 
 
            agency action in this case with the following additional 
 
            analysis:
 
            The deputy's extension of the discovery deadline did not 
 
            prejudice defendants.  The extension was very limited in its 
 
            terms, and applied equally to both parties.  The thrust of 
 
            defendants' objection is that the extension allowed claimant 
 
            to utilize a new attorney more effectively.  The extension 
 
            was properly granted.
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of January, 1994.
 
            
 
            
 
            
 
                                       ________________________________
 
                                               BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Paul J. McAndrew, Jr.
 
            Attorney at Law
 
            122 South Linn Street
 
            Iowa City, Iowa  52240
 
            
 
            Mr. Douglas Tindal
 
            Attorney at Law
 
            225 West Main
 
            Washington, Iowa  52353
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-1803
 
                                             Filed January 25, 1994
 
                                             BYRON K. ORTON
 
                 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            LAURA SOUDER,     
 
                         
 
                 Claimant,    
 
                         
 
            vs.          
 
                                                   File No. 974074
 
            NATIONAL COMPUTER SYSTEMS, INC., 
 
                                                     A P P E A L
 
                 Employer,    
 
                                                   D E C I S I O N
 
            and          
 
                         
 
            THE ST. PAUL FIRE AND MARINE     
 
            INSURANCE COMPANY,     
 
                         
 
                 Insurance Carrier,     
 
                 Defendants.       
 
            ____________________________________________________________
 
            
 
            
 
            5-1803 -  Non-precedential, extent of disability case.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                            :
 
            LAURA SOUDER,                   :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :        File No. 974074
 
            NATIONAL COMPUTER SYSTEMS, INC.,:
 
                                            :     A R B I T R A T I O N
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            THE ST. PAUL FIRE AND MARINE    :
 
            INSURANCE COMPANY,              :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Laura 
 
            Souder, claimant, against National Computer Systems, 
 
            employer, hereinafter referred to as NCS, and St. Paul Fire 
 
            and Marine Insurance Company, insurance carrier, defendants, 
 
            for workers' compensation benefits as a result of an alleged 
 
            injury on May 7, 1990.  On March 9, 1993, a hearing was held 
 
            on claimant's petition and the matter was considered fully 
 
            submitted at the close of this hearing.
 
            
 
                 The parties have submitted a hearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the hearing report, the parties have stip
 
            ulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and NCS at the time of the alleged injury.
 
            
 
                 2.  Claimant is seeking temporary total or healing 
 
            period benefits from May 5, 1990 thru May 13, 1990 and from 
 
            May 15, 1990 through September 16, 1990 and defendants agree 
 
            that she was not working through July 5, 1990.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  At the time of injury claimant's gross rate of 
 
            weekly compensation was $216.00 and she was single.
 
            
 
                 5.  It was stipulated that the medical bills submitted 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            by claimant at the hearing are fair and reasonable and 
 
            causally connected to the medical condition upon which the 
 
            claim herein is based but that the issue of their causal 
 
            connection to any work injury remains an issue to be decided 
 
            herein.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I. Whether claimant received an injury arising out of 
 
            and in the course of employment; 
 
            
 
                  II. The extent of claimant's entitlement to disability 
 
            benefits, including rate of weekly compensation; and,
 
            
 
                 III. The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From her demeanor while testifying, 
 
            claimant is found credible.
 
            
 
                 Claimant worked for NCS from April 23, 1990 until May 
 
            3, 1990 as a data entry operator, at which time she left 
 
            work to receive treatment for hand complaints.  Claimant 
 
            returned briefly on May 14, 1990 but again left work due to 
 
            pain.  After May 14, 1990, she never returned to employment 
 
            with NCS.  On August 16, 1990, claimant was terminated by 
 
            NCS.  Claimant's duties at NCS consisted of entering data 
 
            into a computer using a keyboard.  This involved continuous 
 
            and repetitive use of both hands.
 
            
 
                 On or about May 14, 1990, claimant injured both of her 
 
            hands and arms over substantially the same time period dur
 
            ing her employment with NCS.  The injury consisted of carpal 
 
            tunnel syndrome and ulnar nerve compressions which affected 
 
            the right extremity more than the left.  This finding is 
 
            based upon the diagnoses of the two primary treating physi
 
            cians, Richard Neiman, M.D., and Marc Hines, M.D., both of 
 
            whom are board certified neurologists.  Also, both of these 
 
            neurologists causally connect these conditions to claimant's 
 
            work at NCS.
 
            
 
                 Defendants denied liability for the condition due to 
 
            the short span of time she worked for NCS and the fact that 
 
            she performed keyboard computer data entry work for a couple 
 
            of months prior to and after NCS employment.  Also, there 
 
            was a claim she extensively used her hands in volunteer work 
 
            for a religious institution called "Shilo."  However, 
 
            claimant credibly testified that she had no symptoms prior 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            to NCS employment or after any other activity before her 
 
            first symptoms in May 1990.  She credibly denied extensive 
 
            use of her hands at Shilo which was supported by credible 
 
            testimony of Shilo management at hearing.  The medical 
 
            records support the claim of lack of prior symptoms.  The 
 
            view that prior or subsequent activity was a significant 
 
            causative factor was rejected by the two treating 
 
            physicians.
 
            
 
                 The injury date for this cumulative trauma injury was 
 
            chosen because it was the date of the fist manifestation of 
 
            the disability or the date claimant was finally compelled by 
 
            her symptoms to leave NCS employment permanently.
 
            
 
                 Claimant was initially treated by Dr. Neiman but this 
 
            care was changed to Dr. Hines after Neiman expressed dissat
 
            isfaction with defendant insurance carrier's denial of 
 
            responsibility for the injury.  Hines later supported the 
 
            prior treatment and views of Dr. Neiman.  Dr. Hines released 
 
            claimant from his care and back to work on September 17, 
 
            1990.  Consequently, claimant is found to have reached maxi
 
            mum healing on September 16, 1990.  She was not working 
 
            until after September 16, 1990.
 
            
 
                 The work injury of May 14, 1990 is found to be a cause 
 
            of an 18 percent permanent impairment to the body as a 
 
            whole.  Dr. Hines' views as to the extent of permanent 
 
            impairment was used to arrive at this finding.  He was the 
 
            only treating physician to rate claimant's impairment.  
 
            Using the AMA guidelines, Dr. Hines opined that claimant 
 
            suffered a 15.5 percent permanent partial impairment to each 
 
            extremity from the injury.  He stated that this could be 
 
            converted to a single body as a whole rating under the 
 
            guidelines but he did not do so.  Using agency expertise and 
 
            the revised third edition of the AMA guidelines readily 
 
            available to the undersigned and specifically Table 3 on 
 
            page 6, a 15.5 percent extremity impairment converts to a 
 
            9.5 percent rating to the body as a whole.  Using the com
 
            bined value chart on page 246 of the revised third edition 
 
            to the guidelines, and interpolating to account for the 
 
            fractions, two 9.5 percent ratings converted to a total of 
 
            18 percent combined body as a whole rating.
 
            
 
                 It is also found that claimant is not permanently and 
 
            totally disabled as she now is working full time as an 
 
            advertising salesman for a magazine and according to her 
 
            superiors, this employment is suitable and satisfactory for 
 
            her.
 
            
 
                 For purposes of rate determination, it is found that at 
 
            the time of injury claimant was entitled to three exemptions 
 
            for tax purposes as she was eligible to take all of her 
 
            children as exemptions pursuant to agreement with her 
 
            ex-husband upon default in child support.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                   I.  Claimant has the burden of proving by a prepon
 
            derance of the evidence that claimant received an injury 
 
            arising out of and in the course of employment.  The words 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            "out of" refer to the cause or source of the injury.  The 
 
            words "in the course of" refer to the time and place and 
 
            circumstances of the injury. See generally, Cedar Rapids 
 
            Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. 
 
            DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 
 
            (1955).  An employer takes an employee subject to any 
 
            active or dormant health impairments.  A work connected 
 
            injury which more than slightly aggravates the condition is 
 
            considered to be a personal injury.  Ziegler v. U.S. Gypsum, 
 
            252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited 
 
            therein.
 
            
 
                 It is not necessary that claimant prove his disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever Court also held that the date of injury 
 
            in gradual injury cases is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever the injury 
 
            date coincided with the time claimant was finally compelled 
 
            to give up his job.  This date was then used by the Court to 
 
            determine rate and the timeliness of claimant's claim under 
 
            Iowa Code section 85.26 and notice under Iowa Code section 
 
            85.23.
 
            
 
                 In the case sub judice, like in McKeever, the date when 
 
            claimant was finally compelled to leave work was chosen as 
 
            the injury date.
 
            
 
                  II.  It was found that this was a loss to both extrem
 
            ities at the same time.  It was also found that claimant was 
 
            less than totally disabled from the injury.  Section 
 
            85.34(2)(s) of the Iowa Code states as follows:
 
            The loss of both arms, or both hands, or both feet, or both 
 
            legs, or both eyes, or any two thereof, caused by a single 
 
            accident, shall equal five hundred weeks and shall be 
 
            compensated as such, however, if said employee is 
 
            permanently and totally disabled the employee may be 
 
            entitled to benefits under subsection 3.
 
            
 
                 The Iowa Supreme Court concluded in reference to a 1974 
 
            amendment to the above subsection that the plain and unam
 
            biguous language in the amendment of paragraph (s) which set 
 
            out a definite schedule of benefits shows a clear intent by 
 
            the legislature to make the loss of two specified members a 
 
            scheduled loss.  A partial loss under paragraph (s) must be 
 
            determined by evidence of the functional loss rather than 
 
            the industrial loss.  Simbro v. DeLong's Sportswear, 332 
 
            N.W.2d 886 (1983).  Under Simbro the scheduled loss is 
 
            determined by converting each scheduled loss to a single 
 
            body as a whole and then make an award as a percentage of 
 
            500 weeks.  As the conversation process required under 
 
            Simbro was not done by any physician in this case, agency 
 
            expertise recognized by Iowa Code section 17A.14(5) and 
 
            resort to actual examination of the AMA Guides was necessary 
 
            to make the combined body as a whole finding so an award 
 
            could be rendered.
 
            
 
                 In the case sub judice, it was found that claimant suf
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            fered an 18 percent body as a whole loss as a result of the 
 
            work injury.  Such a finding entitles claimant to 90 weeks 
 
            of permanent partial disability benefits as a matter of law 
 
            under Iowa Code section 85.34(2)(s) which is 18 percent of 
 
            500 weeks, the maximum allowable number of weeks for a par
 
            tial loss injury in that subsection.
 
            
 
                 Claimant's entitlement to permanent partial disability 
 
            also entitles her to weekly benefits for healing period 
 
            under Iowa Code section 85.34 from the date of injury until 
 
            claimant returns to work; until claimant is medically 
 
            capable of returning to substantially similar work to the 
 
            work she was performing at the time of injury; or, until it 
 
            is indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.  As it was found 
 
            that claimant was off work until she reached maximum healing 
 
            on September 16, 1990, benefits will be awarded accordingly.
 
            
 
                 The parties stipulated that if three exemptions were 
 
            found, claimant's weekly rate should be $147.10.  This rate 
 
            is consistent with the commissioner's published rate booklet 
 
            for this injury.
 
            
 
                 III.  Under Iowa Code section 85.27, claimant is enti
 
            tled to causally connected medical expenses to treat the 
 
            injury.  The only dispute as to the requested expenses were 
 
            their causal connection to a work injury.  The causal con
 
            nection to the claimed work-related condition was not dis
 
            puted.  Therefore, in light of the above stipulations and 
 
            findings, the medical expenses requested will be awarded.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant ninety (90) weeks 
 
            of permanent partial disability benefits at a rate of one 
 
            hundred forty-seven and 10/l00 dollars ($147.10) per week 
 
            from September 17, 1990.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from May 5, 1990 through May 13, 1990 and from May 
 
            15, 1990 through September 16, 1990, at the rate of one hun
 
            dred forty-seven and 10/l00 dollars ($147.10) per week.
 
            
 
                 3.  Defendants shall pay the medical expenses listed in 
 
            the prehearing report and exhibit 2.  Claimant shall be 
 
            reimbursed for any of these expenses paid by him.  Other
 
            wise, defendants shall pay the provider directly along with 
 
            any lawful late payment penalties imposed upon the account 
 
            by the provider.
 
            
 
                 4.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 5.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 6.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 7.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
                 Signed and filed this ____ day of April, 1993.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Paul J. McAndrew, Jr.
 
            Attorney at Law
 
            122 South Linn Street
 
            Iowa City, Iowa  52240
 
            
 
            Mr. Douglas Tindal
 
            Attorney at Law
 
            225 West Main
 
            Washington, Iowa  52353
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
 
            
 
 
 
                       
 
                                       
 
                                               5-1803
 
                                               Filed April 15, 1993
 
                                               LARRY P. WALSHIRE
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                        
 
            LAURA SOUDER,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                    File No. 974074
 
            NATIONAL COMPUTER SYSTEMS, INC.,
 
                                                 A R B I T R A T I O N
 
                 Employer,   
 
                                                    D E C I S I O N
 
            and         
 
                        
 
            THE ST. PAUL FIRE AND MARINE    
 
            INSURANCE COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803 -  Non-precedential, extent of disability case.
 
                      
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            SHERI NORMAN,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 974077
 
            HEAT TECH,     
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUTL INSURANCE      
 
             COMPANY,      
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                            STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Sheri Norman, against her employer, Heat Tech, and 
 
            its insurance carrier, Liberty Mutual Insurance Company, to 
 
            recover benefits under the Iowa Workers' Compensation Act as 
 
            a result of an injury allegedly sustained on January 31, 
 
            1991.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner at Des Moines, 
 
            Iowa, on September 14, 1992.  The first report of injury has 
 
            been filed.
 
            
 
                 The record consists of the testimony of claimant as 
 
            well as of the testimony of Cory Colman, Cindy Driscoll, 
 
            Marvin Rychnovski, Joni Jones Stonehacker, Monte McIntryre, 
 
            Theresa Swope, Bruce Jones, Vern Lane, Linda Platt, Mary 
 
            Jane Miller, Barbara Jennings Davidson, and Roxanne 
 
            Huntington.  The record also consists of joint exhibits A 
 
            through C and claimant's exhibits I through V.  
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing assignment order, the 
 
            pre-hearing report and the oral stipulation of the parties, 
 
            the parties have stipulated to the following:  1) that 
 
            claimant is married and entitled to five exemptions; 2) that 
 
            medical costs accrued were fair and reasonable costs for 
 
            treatment of claimant's condition; 3) that claimant was off 
 
            work on account of the alleged injury from February 1, 1991, 
 
            through March 3, 1991; and 4) that commencement date for any 
 
            permanent benefits due claimant would be March 4, 1991.  
 
            Issues remaining to be decided are:  
 
            
 
                 (1) Whether claimant received an injury which arose out 
 
            of the course of her employment on the alleged injury date; 
 
            
 
                 (2) Whether a causal relationship exists between 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            claimant's work injury and claimed permanent disability;
 
            
 
                 (3) The nature and extent of any benefit entitlement; 
 
            
 
                 (4) Whether claimant is entitled to payment of certain 
 
            medical costs pursuant to section 85.27; 
 
            
 
                 (5) Whether claimant is entitled to a penalty for 
 
            unreasonable delay in commencement of the benefits or for 
 
            unreasonable denial of benefit payment; and 
 
            
 
                 (6) The applicable rate of weekly compensation.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence finds:  
 
            
 
                 Claimant is a high school graduate who is currently 
 
            enrolled in her second year at Southwestern Community 
 
            College.  She intends to pursue a course of training as a 
 
            legal assistant.  Claimant appears quite capable of reaching 
 
            that educational and employment objective.  Claimant is 
 
            married and has three minor children.  Claimant worked 
 
            briefly as a waitress in 1976 and 1977 and subsequently 
 
            provided day care in her home until becoming employed as a 
 
            Heat Tech production worker in December 1988.  Claimant was 
 
            one of eight people initially employed as start-up workers 
 
            in Heat Tech's new operation.  Cory Colman was then 
 
            designated plant manager.  His title has changed since 
 
            December 1988; yet, Colman has remained the overall manager 
 
            of operations at the Heat Tech operation from November 1988 
 
            onward.  
 
            
 
                 Claimant was initially hired as a machine operator in 
 
            the flexible and foil department.  She progressed rapidly 
 
            and received favorable job reviews overall and pay raises as 
 
            expected.  She proved to be a conscientious and technically 
 
            competent worker.  On May 4, 1989, claimant became a 
 
            leadworker who supplied workers with materials, checked 
 
            workers' work quality and overall supervised 20 people.  In 
 
            September 1989 claimant was made supervisor in the flex and 
 
            foil department.  She had those responsibilities she had had 
 
            as the leadworker plus paper work, material supply 
 
            responsibility and the capacity to do worker performance 
 
            reviews and promote or demote workers under her supervision.  
 
            She supervised three flex and foil shifts working daily from 
 
            about 6:00 a.m. to past 3:00 p.m. and averaging 50 to 60 
 
            hours per week at work.  As claimant's job duties increased, 
 
            her work evaluations overall remained quite positive.  The 
 
            evaluations did suggest goals for claimant, which goals were 
 
            indicative of her having problems dealing with persons under 
 
            her supervision and following the proper chain of command 
 
            relative to reporting to her own supervisors.  A variety of 
 
            claimant's co-workers, both managerial personnel and 
 
            production workers, testified at hearing.  The overall 
 
            testimony was that claimant was technically proficient in 
 
            her job duties but highly controlling and lacking in tact in 
 
            her relationships with her subordinate production workers.  
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Claimant, with the consent of her own immediate 
 
            supervisor and Cory Colman, demoted another worker from the 
 
            leadworker position in the flex and foil operation and then 
 
            promoted claimant's sister to the leadworker position.  
 
            Production in flex and foil declined.  Managerial personnel, 
 
            especially Mr. Colman, assessed the situation.  Colman held 
 
            a series of meetings with flex and foil production workers.  
 
            Workers' comments in those meetings led Colman to conclude 
 
            that claimant's sister and claimant's and her sister's 
 
            relationship as supervisor and leadworker played a 
 
            substantial role in the worker dissatisfaction and poor 
 
            productivity in flex and foil.  
 
            
 
                 Colman, Bruce Jones, plant manger in flex and foil and 
 
            then claimant's immediate supervisor, and claimant met to 
 
            discuss the situation on the fourth Monday of January 1991.  
 
            As Colman had pledged confidentially to those workers from 
 
            the flex and foil department who had confided regarding 
 
            their perception of the problems claimant's sister created, 
 
            those problems were discussed generally and not 
 
            specifically.  Claimant was advised that management was 
 
            considering demoting her sister from leadworker in that 
 
            management perceived that was in the best overall interest 
 
            of the plant.  Final decision as regards claimant's sister's 
 
            demotion from leadworker had not been made.  Claimant was 
 
            asked not to speak with her sister regarding the potential 
 
            demotion until a decision was finalized.  On Friday on the 
 
            fourth week of January of 1991, claimant was informed that 
 
            her sister would be demoted.  Claimant was also informed 
 
            that her own job duties would change in that she would 
 
            retain her salary and her title as a supervisor but would 
 
            supervise only the foil section of the flex and foil 
 
            division and not the overall flex and foil operation.  
 
            Claimant requested that she inform her sister of the 
 
            demotion.  Colman agreed that claimant could do so and 
 
            advised claimant and her sister that they could leave work 
 
            for the balance of the day without lost pay.  Claimant and 
 
            her sister did so.  
 
            
 
                 Apparently the plant was in production on Saturday and 
 
            claimant did not report to work.  Claimant also did not 
 
            report to work on Monday and Tuesday of the following week.  
 
            She did speak to Cory Colman on Tuesday, however.  In a 
 
            meeting at his office, she indicated that while she had been 
 
            considering returning to production work only that she would 
 
            report to work in her foil department supervisor position as 
 
            of Wednesday morning.  Claimant did report on Wednesday.  
 
            Claimant held a meeting with production workers in foil on 
 
            Wednesday morning.  Claimant expressly indicated that the 
 
            rearrangement of work duties was not a demotion for her and 
 
            that she would be supervising in the foil department in an 
 
            attempt to enhance its production.  Colman characterized 
 
            claimant as cold and perhaps as somewhat distant on 
 
            Wednesday but as not appearing unduly upset.  Claimant 
 
            reported that she did not have the same duties on reporting 
 
            to work on Wednesday as she had had previously and that both 
 
            Colman and Bruce Jones were on the floor performing 
 
            responsibilities she perceived as her own.  Colman reported 
 
            that he and Jones had had to setup and plan production in 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant's absence and that claimant was advised of the 
 
            plans they had made on Wednesday. 
 
            
 
                  Claimant reported to work on Thursday morning.  She 
 
            reported that she had cried on Wednesday evening after 
 
            leaving work and on Thursday morning had vomited before 
 
            coming into work.  She felt excluded from managerial 
 
            decisionmaking in which she had previously been included.  
 
            Three presses in the foil department were broken.  Claimant 
 
            asked Monty McIntryre, supervisor in maintenance, to fix the 
 
            presses.  He told claimant he was busy.  She then asked two 
 
            other maintenance workers.  She reported that they said they 
 
            would help her yet never did.  Apparently, the maintenance 
 
            personnel informed claimant that a major breakdown had 
 
            occurred in another plant division and that they could only 
 
            fix the presses in the foil department after dealing with 
 
            that breakdown.  
 
            
 
                 In the course of the morning claimant had an 
 
            altercation with Monty McIntryre  regarding a disagreement 
 
            as to whether another press machine needed maintenance.  On 
 
            walking away from that interaction, McIntryre referred to 
 
            claimant as a dumb (expletive an obscenity related to the 
 
            female pudenda, deleted).  McIntryre reported the 
 
            altercation and the incident regarding the obscenity to 
 
            Colman within an hour of its occurrence.  Colman gave 
 
            McIntryre an oral reprimand and placed a notice regarding 
 
            the incident in McIntryre's personnel file.  Claimant did 
 
            not report the incident.
 
            
 
                 Sometime thereafter, claimant asked Bruce Jones to help 
 
            with the presses.  Apparently, she and Jones had difficulty 
 
            getting the press started.  At that point claimant got very 
 
            emotionally upset and began verbalizing loudly and crying on 
 
            the plant floor.  Jones got Colman to attempt to calm 
 
            claimant down.  Both Jones and Colman indicated that the 
 
            situation developed so quickly that they did not consider 
 
            removing claimant from the plant floor to the office.  In 
 
            the course of the incident, claimant advised Colman she 
 
            wanted her old job back and expressed her belief that Colman 
 
            had made a mistake in rearranging plant duties.  Colman 
 
            advised that the job of overall supervisor in flex and foil 
 
            no longer existed.  Jones offered to drive claimant to her 
 
            home and did so.  Neither Colman nor Jones offered to take 
 
            claimant to a physician.  Jones and Colman did not believe 
 
            that claimant was upset sufficiently for medical care to be 
 
            necessary. 
 
            
 
                 Claimant's spouse suggested claimant see a physician 
 
            and claimant did see Yogesh Gandhi M.D., her family 
 
            physician.  Dr. Gandhi prescribed medications and took 
 
            claimant off work.  On February 14, 1991, Dr. Gandhi 
 
            indicated that claimant was undergoing treatment for stress 
 
            which  was probably due to work.  Gandhi referred claimant 
 
            to Ashwini Pradhan, M.D., a psychiatrist and to William 
 
            Smith, a licensed social worker.  Dr. Pradhan saw claimant 
 
            on February 15, 1991, and March 1, 1991.  She diagnosed 
 
            claimant's condition  as an adjustment disorder with mixed 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            emotional features and by history in the diagnostic 
 
            interview related claimant's very distraught mood, anger and 
 
            crying to claimant's work situation.  She released claimant 
 
            to return to work as of March 4, 1991.  Mr. Smith saw 
 
            claimant for supportive therapy and agreed with Dr. 
 
            Pradhan's diagnosis of an adjustment disorder with mixed 
 
            features.  
 
            
 
                 Claimant attempted to return to work on March 4, 1991.  
 
            Mr. Colman had earlier informed claimant that she would be 
 
            demoted from her supervisor's position.  On March 4, he 
 
            informed her no production work was available.  She was 
 
            placed on lay-off, subsequently terminated; and has not been 
 
            rehired.
 
            
 
                 Claimant appears to have fully recovered from her 
 
            emotional distress related to her perception of unfair 
 
            treatment in her work situation.  Her demeanor at hearing 
 
            demonstrated no evidence of residual emotional problems.  
 
            The record contains no medical evidence of permanent 
 
            residuals.  
 
            
 
                 Hearing testimony and the practitioner's records of 
 
            Pradhan and Smith reflect that claimant believed that she 
 
            was considered for the plant manager position but that Bruce 
 
            Jones was chosen for that position as he is male and she is 
 
            female.  Colman, in his deposition, denied that Jones was 
 
            chosen on account of his sex and indicated that Jones was 
 
            chosen on account of his past work experience as a store 
 
            owner and manager.  The record overall supports the finding 
 
            that reasons other than claimant's sex, including the lack 
 
            of productivity in the flex and foil division under her 
 
            supervision and her apparent interpersonal problems with 
 
            both supervisory and production workers, made it unlikely 
 
            that claimant would have been appointed plant manager.
 
            
 
                 Claimant, at hearing, expressed embarrassment over an 
 
            incident at a overall plant meeting wherein she was 
 
            presented a poster size photograph of the back of a male 
 
            dancer sitting on her lap.  Evidently claimant and some 
 
            other female plant workers  had gone to a bar where "male 
 
            dancers were performing" in nonwork hours.  Photos were 
 
            taken; the particular photo was passed on to Colman who then 
 
            had it enlarged and presented it to claimant with a note 
 
            stating the following:  
 
            
 
                 Find enclosed a small token expressing my 
 
                 gratitude for the wonderful evening we spent 
 
                 together.  My mind still remembers fondly the 
 
                 tenderness of your loving touch.  I can honestly 
 
                 say your "love grip" is one of a kind.  The 
 
                 bruises are finally fading.  Until we are together 
 
                 again, yours forever  "Malibu"   
 
            
 
                 P.S. Bring this picture in at our next 
 
                 performance, and it will entitle you to free 
 
                 admission and another 'freebie'.  M.  
 
            
 
                 Colman read the note to all persons at the meeting.  
 
            Colman testified that claimant did not appear embarrassed 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            although other workers indicated she then may have been 
 
            uncomfortable.  Apparently, claimant's spouse indicated to 
 
            Colman that the spouse would have liked to have been present 
 
            to observe claimant's reaction.  Colman testified that the 
 
            presentation of the photo was part of routine "humorous" 
 
            presentations made to workers at overall plant production 
 
            meetings and that the intent had not been to embarrass 
 
            claimant.  Colman also reported that at one point, although 
 
            he was uncertain as to whether prior to or subsequent to 
 
            this photo incident, Claimant had presented Colman with a 
 
            cane to assist Colman in "reaching the urinal" in that 
 
            Colman's "male organ" was of itself inadequate for the task.  
 
            It is expressly found that the overall atmosphere in the 
 
            plant was pubescent and puerile as regards matters related 
 
            to human sexuality.  Claimant apparently actively 
 
            contributed to that atmosphere and was not unduly  
 
            distressed by the atmosphere while participating in it.  
 
            
 
                 It is expressly found that the situation claimant 
 
            encountered in her work at Heat Tech was not a situation 
 
            producing stress of greater dimensions than the day to day 
 
            mental stresses and tensions which all employees must 
 
            experience.  Claimant's actual stress resulted from the 
 
            discrepancy between her own perception of her work 
 
            performance and her perceived loss of status when her job 
 
            duties were reorganized and when her sister was demoted from 
 
            the leadworker position to which claimant had promoted the 
 
            sister.  All workers are to a greater or lesser degree 
 
            subject to different perceptions of their performance by 
 
            co-workers and supervisors.  Furthermore, claimant's 
 
            evaluations reflect an attempt on management's part to 
 
            advise claimant of her need to improve her interpersonal 
 
            relationships.  Hence, while the evaluations were overall 
 
            favorable to claimant, it cannot be said that claimant was 
 
            wholly surprised that her performance and personal 
 
            relationship building at work were perceived as inadequate.  
 
            
 
                 Likewise, claimant had earlier been advised of 
 
            potential  problems resulting from promoting her sister to 
 
            leadworker.  Hence, while that situation was unusual, it 
 
            remained a situation of claimant's creation, and the adverse 
 
            consequences following from claimant's initial decision to 
 
            promote her sister cannot be said to have resulted from a 
 
            situation of greater dimensions overall than the day to day 
 
            mental stresses and tensions which all employees experience.  
 
            All supervisory workers must at some point face demoting a 
 
            co-worker.  Also, claimant voluntary chose to inform her 
 
            sister of the sister's demotion.  The employer did not 
 
            request that claimant perform that task and the employer 
 
            quite consciously attempted to give claimant and her sister 
 
            an opportunity to deal with their feelings regarding the 
 
            demotion and the change of responsibilities outside of the 
 
            work environment.  Likewise, all employees at some point 
 
            face reorganizations of their job responsibilities and 
 
            actual demotions.  Claimant's reorganization of 
 
            responsibilities, which claimant perceived as a demotion, 
 
            was not an egregious act of the employer but rather a 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            responsible business decision handled appropriately.  Hence, 
 
            neither the situation nor the employer's actions within the 
 
            situation can be said to have created a situation of greater 
 
            dimensions of stress than the day to day mental stresses and 
 
            tensions to which all employees are subject.  In this regard 
 
            also, Jones and Colman's behavior when claimant reacted on 
 
            the plant floor on January 31, 1991, does not appear to have 
 
            produced for claimant a situation of greater dimensions than 
 
            the day to day mental stresses and tensions to which all 
 
            employees are subject.  While Jones and Colman did not 
 
            remove claimant from the floor, the incident arose so 
 
            quickly that Jones and Colman felt compelled to resolve it 
 
            immediately; and did so without the opportunity for 
 
            forethought as to the most comfortable situation for 
 
            claimant.  The need to deal with an emotionally distraught 
 
            employee immediately and without overall consideration of 
 
            the embarrassment that the emotional display might produce 
 
            for the employee if allowed to continue in public is a 
 
            situation that is often encountered in the work place.  It 
 
            cannot be said to be a situation of greater dimensions than 
 
            the day to day mental stresses and tensions to which all 
 
            employees are subject.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Our first consideration is whether claimant has 
 
            established a mental injury arising out of and in the course 
 
            of her employment which meets the standards for liability 
 
            under Iowa law. 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            other surrounding circumstances.     As noted above, the limited medical evidence produced 
 
            indicates that claimant's adjustment disorder with mixed 
 
            emotional features was precipitated by both the actual 
 
            happenings in claimant's work environment and by claimant's 
 
            perception of those happenings and by her beliefs as to what 
 
            should have happened.  Given such, claimant has established 
 
            medical causation between her work environment and her 
 
            adjustment disorder.  Claimant has not established legal 
 
            causation, however.  When viewed objectively and not as 
 
            claimant perceived them, claimant's work stresses were not 
 
            out of the ordinary from the countless emotional strains and 
 
            differences that employees encounter daily without serious 
 
            mental injury.  Given such claimant is not entitled to a 
 
            recovery under our workers' compensation law.  In that 
 
            claimant has not met the threshold requirement of 
 
            establishing employer liability for injury, other issues 
 
            presented need not be considered.  
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:  
 
            
 
                 Claimant take nothing from this proceeding.
 
            
 
                 Claimant pay costs of this proceeding.
 
            
 
                 Signed and filed this ____ day of October, 1992.
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          HELENJEAN M. WALLESER                                            
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Dennis L. Hanssen
 
            Attorney at Law
 
            2700 Grand Avenue, Suite 111
 
            Des Moines, IA  50312
 
            
 
            Mr. James C. Huber
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, IA  50309-2421
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                               1108.20, 2204
 
                                               Filed October 5, 1992
 
                                               Helenjean M. Walleser 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            SHERI NORMAN,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 974077
 
            HEAT TECH,     
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUTL INSURANCE      
 
             COMPANY,      
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            1108.20, 2204
 
            Claimant who perceived plant demotion of claimant's sister 
 
            and reorganization of claimant's job duties without a 
 
            reduction in pay or a change in claimant's title as 
 
            unmerited demotions did not establish that the work 
 
            situation resulted from a situation of greater dimensions 
 
            than the day to day mental stresses and tensions which all 
 
            employees must experience.  All employees face a discrepancy 
 
            between their own perception of job performance and 
 
            perceptions of other in the work environment.  All employees 
 
            are subject to demotions and job reorganizations.  Where 
 
            those demotions and job reorganizations are objectively 
 
            justifiable and do not result from reasons personal to the 
 
            worker they cannot be said to be out of the ordinary and 
 
            different from the countless emotional strains and 
 
            differences that employees encounter daily without serious 
 
            mental injury.  
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            WILLIAM COE,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                  File No. 974094
 
            PST, INC.,       
 
                                                   A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and        
 
                        
 
            LIBERTY MUTUAL INSURANCE   
 
            COMPANY,    
 
                        
 
                 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 August 23, 1993 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            
 
            Defendants argue that claimant violated a work rule, and 
 
            that this violation took him out of the course of his 
 
            employment.  Specifically, defendants argue that claimant 
 
            violated a memorandum not to park his truck/trailer at the 
 
            truck stop in West Memphis where claimant met the man who 
 
            presumably later stole his truck.  Although defendants 
 
            allege that claimant received a memo with these 
 
            instructions, neither the memo nor the person who allegedly 
 
            communicated the memo to claimant were produced at the 
 
            hearing.  Claimant denies receiving the memo.  In addition, 
 
            claimant's limited ability to read and write and his level 
 
            of intelligence cast further doubt on whether the 
 
            restriction was in fact effectively communicated to him.  It 
 
            is axiomatic that before an employee can be held to have 
 
            violated a work rule or restriction, the rule or restriction 
 
            must be communicated to the employee.  Defendants have 
 
            failed to show that the work rule they allege claimant 
 
            violated was adequately communicated to claimant.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                      BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James M. Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg.
 
            Davenport, Iowa 52801
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 East Third St.
 
            Davenport, Iowa 52801-1596
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                     5-1100; 5-1404.30; 5-1600; 1111
 
                                     Filed March 29, 1994
 
                                     Byron K. Orton
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         WILLIAM COE,     
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                  File No. 974094
 
         PST, INC.,       
 
                                                    A P P E A L
 
              Employer,   
 
                                                 D E C I S I O N
 
         and         
 
                     
 
         LIBERTY MUTUAL INSURANCE   
 
         COMPANY,    
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         
 
         5-1100; 5-1404.30; 5-1600
 
         Claimant was employed as an over-the-road truck driver.  He was 
 
         severely beaten one evening.  Defendants denied liability, and 
 
         asserted that claimant was intoxicated at the time of the 
 
         hearing, and argued further that the assault was a willful act of 
 
         a third party directed against the employee for reasons personal 
 
         to such employee, pursuant to Iowa Code section 85.16.
 
         Both of defendants' affirmative defenses failed.  It was 
 
         determined that while claimant was intoxicated at the time of the 
 
         assault, his intoxication was not a substantial factor in causing 
 
         the injury.
 
         Likewise, it was found that claimant was selected at random for 
 
         purposes of the attack.
 
         Claimant lost the use of his left eye due to the severe injuries 
 
         he sustained, and was awarded 140 weeks of compensation.
 
         
 
         1111
 
         It was also held on appeal that before defendants could rely on 
 
         violation of a work rule as a defense, it must be shown that the 
 
         work rule was effectively communicated to claimant.
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM COE,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 974094
 
            PST, INC.,                    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by William 
 
            Coe, claimant, against his former employer, Pacific States 
 
            Transport and its insurance carrier, Liberty Mutual 
 
            Insurance Company.  Mr. Coe seeks workers' compensation 
 
            benefits due to an alleged work-related injury occurring on 
 
            November 2, 1990.  
 
            
 
                 The matter came on for hearing before the undersigned 
 
            deputy industrial commissioner on June 2, 1993, in 
 
            Davenport, Iowa.  The case was considered fully submitted at 
 
            the close of the hearing.  The record consists of the 
 
            claimant's testimony, testimony from Thomas Proctor, Vice 
 
            President of Safety for the defendant employer; and, joint 
 
            exhibits A-V.  
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and order, the parties 
 
            submit the following issues for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on November 2, 
 
            1990 which arose out of and in the course of his employment; 
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            injury and claimant's disability;
 
            
 
                 3.  Whether claimant is entitled to temporary total 
 
            disability benefits, healing period benefits, or permanent 
 
            partial disability benefits; and,  
 
            
 
                 4.  Whether claimant is entitled to medical benefits.
 
            
 
                 Defendants raise intoxication and the willful act of a 
 
            third party as an affirmative defense. 
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant was born on January 28, 1948, and at the time 
 
            of the hearing was 45 years of age.  Claimant grew up in 
 
            Alabama, and did not finish the 8th grade in school.  His 
 
            scores on I.Q. tests hovered between 69-72.  He has 
 
            difficulty reading and spelling, and finds it difficult to 
 
            concentrate when trying to better these skills.  
 
            
 
                 Claimant was in the Navy from 1967-1969.  He was 
 
            assigned to the engine room which involved working on 
 
            machinery temperatures, steam pipes and monitoring valves.  
 
            He received an honorable discharge.  
 
            
 
                 Prior to joining the Navy, and once discharged, 
 
            claimant worked for Calvin Long Plumbing.  His primary job 
 
            duties included loading and unloading trucks, hauling 
 
            materials to job sites and pipe fitting.  Claimant earned 
 
            between $4.50 and $5.50 per hour, and worked 40 to 60 hours 
 
            per week.  
 
            
 
                 From 1972 to 1978 and from 1982-1990, claimant worked 
 
            as an over-the-road truck driver.  
 
            
 
                 From 1978 to 1979, claimant worked for the DeKalb 
 
            Foundry, where he performed heavy labor, and from 1979 to 
 
            1981, claimant worked for Armalie Electrical Plating 
 
            Company, cleaning and electroplating various machine parts.  
 
            Some of his job duties required the use of a crane. 
 
            
 
                 In January of 1990, claimant began working as an 
 
            over-the-road truck driver for the defendant employer.  As 
 
            such, he pulled flat bed trailers loaded with tractors, 
 
            steel, various machine parts and junk freight throughout the 
 
            continental United States.  His terminal was based in 
 
            Davenport, but claimant received his work orders from a 
 
            station in Oregon.  He was not paid for meals or lodging 
 
            unless his truck was in the shop.  There were no 
 
            restrictions on where claimant could eat or sleep, and 
 
            claimant usually slept in the bed located in the truck cab.  
 
            
 
                 On the morning of November 1, 1990, claimant unloaded 
 
            cargo in West Haven, Mississippi and traveled to West 
 
            Memphis, Arkansas.  The following morning, November 2, 1990, 
 
            claimant awoke at 7:00 a.m. and went to a truck stop to wash 
 
            up.  He called the terminal for further instructions, and 
 
            was told to wait in West Memphis for a load which was to be 
 
            loaded at 12:00 noon and delivered in Fitzgerald, Georgia (a 
 
            distance of approximately 500 miles, or a ten-hour drive) on 
 
            November 4, 1990.  The company did not place any 
 
            restrictions on where claimant could spend his time during 
 
            layovers.  
 
            
 
                 According to claimant, his truck was loaded from 1:00 
 
            p.m. to 6:30 p.m.  He was going to begin the drive to 
 
            Fitzgerald that evening. 
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Once claimant's truck had been loaded, he returned to 
 
            the truck stop to shower and eat dinner.  Claimant testified 
 
            that while at the truck stop, he was approached by a 
 
            gentleman named Dave who was wearing a tan jacket sporting 
 
            the defendant employer's logo or emblem.  Dave told claimant 
 
            that his truck had broken down and would be in the shop 
 
            until Monday, and invited claimant out to dinner at a 
 
            restaurant located in downtown West Memphis.  Claimant 
 
            unhooked the truck from the trailer, and both gentlemen rode 
 
            in claimant's truck.  They arrived at the restaurant at 
 
            approximately 8:00 p.m.  When claimant got out of the truck, 
 
            he left the keys in the ignition, but locked the doors 
 
            because he had an extra set in his pocket.  He noticed that 
 
            Dave leaned over towards the driver's side before he got out 
 
            the truck.  
 
            
 
                 Claimant felt he had been misguided, and believed that 
 
            the restaurant that Dave had suggested was more of a 
 
            nightclub ("Club Unity"), but he proceeded to go in with 
 
            Dave, who found a table.  Claimant made his way to the bar, 
 
            and ordered a hot dog, chips and a Coke.  When he returned 
 
            to the table, Dave had ordered beer.  Although claimant 
 
            initially declined to imbibe, Dave "kept after" him and he 
 
            started to drink.  Upon reflection, claimant felt Dave was 
 
            trying to get him drunk.  
 
            
 
                 Around 11:00 p.m., claimant had had enough, felt a 
 
            little drunk, and wanted to leave the club.  He did not want 
 
            to leave alone, as he felt that the club was located in a 
 
            rough part of town, so he asked Dave to leave with him.  
 
            Dave acquiesced, but first excused himself to use the rest 
 
            room.  He never returned. 
 
            
 
                 Once outside, claimant realized that his truck had been 
 
            stolen.  Then, he was jumped by four men, severely beaten 
 
            and robbed of approximately $60.00.  Claimant believes he 
 
            was "set up" by Dave.
 
            
 
                 The police were called, and an incident report was 
 
            filled out.  The report notes that the occurrence happened 
 
            on 
 
            November 3, 1990 at 1:44 a.m., and the police arrived on the 
 
            scene on November 3, 1990 at 1:47 a.m.  (Joint Exhibit C)
 
            
 
                 Claimant sustained serious injuries as a result of the 
 
            beating, including a broken nose, broken bones above and 
 
            under the left eye, retinal loss in the left eye and a blood 
 
            clot in the right temple lobe.  Once found on the pavement 
 
            in a state of unconsciousness, claimant was taken by 
 
            ambulance to the emergency room at Crittenden Memorial 
 
            Hospital in West Memphis, Arkansas. X-rays of the cervical 
 
            spine, facial bones and skull showed opacification of both 
 
            maxillary sinuses, small cortical infractions of the 
 
            anterior wall of the maxillary sinuses, and small fractures 
 
            at the zygomatical orbital rim on the left.  Clouding of the 
 
            frontal sinuses were present.  Claimant also sustained a 
 
            giant retinal tear which required surgical repair by a 
 
            vitrectomy (Jt. Ex. P).  It was recommended that claimant 
 
            undergo a CT scan (Jt. Ex. L).  Claimant was transferred to 
 
            the Baptist Memorial Hospital in Memphis, Tennessee, where 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            various CT scans were taken and confirmed bruising and 
 
            swelling in the right anterior temporal lobe and near the 
 
            temporo-occipital junction, broken bones in the nasal 
 
            cavities and other abnormalities (Jt. Ex. G, pp.13-18).  
 
            Other notations from the physicians at the hospital 
 
            indicated that claimant was unable to remember what had 
 
            happened, and that he was intoxicated (Jt. Ex. G, pp. 4(a); 
 
            5(b); and 12(a)).  Other records indicate that claimant's 
 
            blood alcohol level was twice the legal limit at the time he 
 
            was admitted to the emergency room (Jt. Ex. V).
 
            
 
                 Prior to his discharge on November 14, 1990, claimant 
 
            underwent a tracheostomy; intramaxillary fixation by plating 
 
            and wiring; open reduction and internal fixation by plating 
 
            and wiring of the left trimalleolar fracture and inferior 
 
            orbital rim fracture; closed reduction of the nasal 
 
            fracture; open reduction and internal fixation of the left 
 
            lateral maxillary buttress; exploration of the piriform 
 
            ampliture and left antrostomy; plans Plana lensectomy; 
 
            vitrectomy and silicone oil fill of the left eye.  In all, 
 
            claimant underwent six operations to repair the damage 
 
            sustained from the attack.  Claimant was eventually released 
 
            to return to Alabama, and his plane fare was paid for by the 
 
            defendant employer (Jt. Ex. G, pp. 1-6; Jt. Ex. H; Jt. Ex. 
 
            L; and, Jt. Ex. N).
 
            
 
                 William McCarty performed intermaxillary fixation on 
 
            claimant.  His office was mostly concerned about payment of 
 
            the procedure (Jt. Ex. J).
 
            
 
                 On November 28, 1990, claimant visited Michael Massey, 
 
            M.D., apparently at the request of David Meyer, M.D.  Dr. 
 
            Massey is a physician located in Montgomery, Alabama.  After 
 
            a complete examination, Dr. Massey believed claimant was 
 
            making an excellent recovery, and that the retina was 
 
            completely attached.  In January of 1991, Dr. Massey was of 
 
            the opinion that claimant would be legally blind in the left 
 
            eye for the rest of his life.  The blindness was due to the 
 
            injuries sustained in November of 1990 (Jt. Ex. K, pp. 1-6; 
 
            p. 7; Jt. Ex. P).  
 
            
 
                 In February of 1991, claimant sought follow-up 
 
            treatment on three occasions from Jack Griffin, M.D., a 
 
            neurologist located in Columbus, Georgia.  Complaints from 
 
            claimant included headaches, dizziness, discomfort about the 
 
            shoulders and neck, and, loss of central vision in the left 
 
            eye.  Dr. Griffin ordered a repeat CT scan of claimant's 
 
            head, and the results of the test were normal.  Dr. Griffin 
 
            declined other studies at that time, but claimant was to 
 
            confer with his eye doctor in March about the safety of an 
 
            MRI on the cervical spine (Jt. Ex. M).  Other than a medical 
 
            report filed with the Georgia State Board of Workers' 
 
            Compensation, there are no other records from Dr. Griffin 
 
            (Jt. Ex. I).
 
            
 
                 Claimant also sought treatment from the Hurst 
 
            Chiropractic Clinic from February through July of 1991.  A 
 
            progress report from the clinic indicates that claimant was 
 
            suffering from multiple cervical sublimation; thoracic 
 
            subluxations and lordosis; lumbar subluxations; lumbar disc 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            degeneration; and, lumbar lordosis.  No final diagnosis or 
 
            prognosis is found.  The notes from the clinic are difficult 
 
            to read, due to the poor quality of both the record-keeping 
 
            of the chiropractor and the photocopies provided to the 
 
            undersigned (Jt. Ex. O).
 
            
 
                 On May 14, 1991, Joseph Keller, M.D., who had treated 
 
            claimant's left eye shortly after the assault and resulting 
 
            hospitalization informed the defendant insurance company 
 
            that "[b]ecause of the presence of vitreous hemorrhage in 
 
            the left eye, immediately after the trauma, and because of 
 
            the nature of the retinal tear and the timing of it, it is a 
 
            virtual certainty that [claimant's] eye problems in the left 
 
            eye all resulted from the beating [claimant] received." (Jt. 
 
            Ex. P)
 
            
 
                 Also in May of 1991, claimant was referred by Leonardo 
 
            Antaris, M.D., to the University of Iowa Hospitals and 
 
            Clinics, where he was evaluated by Christopher Blodi, M.D., 
 
            assistant professor of the vitreoretinal service for the 
 
            left eye condition, and possible removal of the silicone oil 
 
            from the left eye.  Claimant was complaining of pain and 
 
            redness of the left eye, and after a discussion of the pros 
 
            and cons of removal of the silicone oil from the eye, 
 
            decided to undergo surgery to have the oil removed.  Surgery 
 
            was performed on June 13, 1991.  Dr. Blodi referred claimant 
 
            to Michael Laws, M.D., a neurologist located in Davenport, 
 
            Iowa, for further follow-up care with respect to claimant's 
 
            head trauma and resulting physical problems.   Claimant was 
 
            released from Dr. Blodi's care on 
 
            August 12, 1991 (Jt. Ex. Q).
 
            
 
                 Claimant met with Dr. Laws on several occasions from 
 
            July 8, 1991 through January of 1992.  According to the 
 
            records, claimant saw Dr. Laws for a total of three 
 
            appointments, although he had been scheduled for a total of 
 
            eight appointments.  Dr. Laws diagnosed post traumatic 
 
            syndrome, and claimant began taking amitriptyline, elavil 
 
            and fiorinal, to treat depression and headaches present 
 
            since the incident in November of 1990.  An EEG was 
 
            performed, the results of which were normal (Jt. Ex. R).  A 
 
            final report from Dr. Laws was not provided, but the only 
 
            final progress notes which are legible are dated January 23, 
 
            1992, indicate that claimant continued to complain of 
 
            headaches and a decrease of sensation around the left eye.  
 
            A neurological examination showed normal range of motion of 
 
            the eyes, with the left pupil still "fixed."  There was 
 
            tenderness to palpation of the scalp.  Dr. Laws felt 
 
            claimant continued to have post traumatic headaches and 
 
            prescribed additional medications, including amitriptyline 
 
            for the headaches.  Claimant also underwent an 
 
            electroencephalography, which was normal 
 
            (Jt. Ex. R).    
 
            
 
                 In March of 1992, claimant was evaluated by Paul Hauck, 
 
            Ph.D.  Dr. Hauck paints a bleak picture of claimant's 
 
            physical, intellectual and emotional condition and 
 
            capabilities.  His testing concentrated on claimant's 
 
            inability to reason and comprehend, stating that claimant is 
 
            in the borderline mentally retarded range of intellect.  
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Additionally, Dr. Hauck opined that claimant would be unable 
 
            to adapt physically or psychologically in a work 
 
            environment.  Claimant's vision hampered his motor skills 
 
            (Jt. Ex. S).  
 
            
 
                 In July of 1992, claimant underwent additional 
 
            vocational assessment testing.  Most, if not all, of 
 
            claimant's medical records were reviewed by Judy Stengel, 
 
            the vocational evaluator.  Claimant was complaining of 
 
            problems with depth perception, which limited his capacity 
 
            to read, drive, cook and thread a fish hook.  Headaches 
 
            increased in proportion to stress, and claimant was still 
 
            taking anti-depressant medications, as well as non-narcotic 
 
            analgesics to relieve the headaches.  Claimant also reported 
 
            pain in his right arm, shoulder and back, present since his 
 
            release from the hospital in November of 1990.  He stated 
 
            that back pain had prevented him from lifting a 30 pound box 
 
            during a recent move (Jt. Ex. T, pp.1-4).
 
            
 
                 After a review of claimant's past education and 
 
            employment, Ms. Stengel developed a guideline to determine 
 
            claimant's aptitude in a variety of areas, including 
 
            intelligence; verbal, numerical and spatial aptitudes; form 
 
            and clerical perception; motor coordination; finger and 
 
            manual dexterity; eye-hand-foot coordination; and color 
 
            discrimination.  She also outlined overall training 
 
            preparation, job adaptabilities, work activities and working 
 
            conditions (Jt. Ex. T, pp. 4-8).
 
            
 
                 In her final analysis, based on work restrictions given 
 
            by Dr. Laws, claimant's intellect, age, work experience and 
 
            physical capabilities, Ms. Stengel believed claimant was 
 
            unable to return to any of his previous occupations.  She 
 
            determined that he was "marginally employable in other 
 
            occupations."  (Jt. Ex. T, p. 10)  She did not provide any 
 
            assistance in securing suitable employment for claimant, but 
 
            did collect job descriptions tailored to claimant's previous 
 
            jobs (Jt. Ex. T, pp. 14-18).
 
            
 
                 Mr. Proctor testified on behalf of defendants.  A 
 
            former Idaho State police officer and currently the Director 
 
            of the Utah Department of Medicaid Fraud, Mr. Proctor, at 
 
            the time of the incident, was the Vice President of Safety 
 
            for the defendant employer.  His duties included 
 
            investigation of traffic accidents, workers' compensation 
 
            claims, driver background checks and thefts.  
 
            
 
                 Mr. Proctor knew of the assault on November 14, 1990, 
 
            when claimant contact him by telephone.  Mr. Proctor 
 
            testified that claimant told him during the telephone 
 
            conversation that Dave had followed claimant to the 
 
            restaurant; that claimant was aware that it was against 
 
            company policy to unhook his load from his truck and to keep 
 
            one key in the ignition even while the truck was locked; 
 
            and, that it was against both company and Department of 
 
            Transportation policy to drink while on the road.  
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            sustained an injury on November 2, 1990 which arose out of 
 
            and in the course of his employment.  Defendants argue that 
 
            claimant was intoxicated at the time of the beating, and 
 
            that the beating was a willful act of a third party, thereby 
 
            relieving them of liability. 
 
            
 
                 Both of defendants' arguments are affirmative defenses 
 
            which must be established by the employer by a preponderance 
 
            of the evidence.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on November 2, 
 
            1990, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
            
 
                 Iowa Code section 85.16(2) states, in relevant part:
 
            
 
                    No compensation under this chapter shall be 
 
                 allowed for an injury caused:
 
            
 
                    ....
 
            
 
                    2.  By the employee's intoxication, which did 
 
                 not arise out of and in the course of employment 
 
                 but which was due to the effects of alcohol or 
 
                 another narcotic, depressant, stimulation, 
 
                 hallucinogenic, or hypnotic drug not prescribed by 
 
                 an authorized medical practitioner, if the 
 
                 intoxication was a substantial factor in causing 
 
                 the injury.
 
            
 
                 The defense of claimant's intoxication can be easily 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            disposed.  The statute states that the employee's 
 
            intoxication must be a substantial factor in bringing about 
 
            the injury.  In the case at bar, there is no evidence that 
 
            claimant's intoxication had anything to do with the assault.  
 
            He did not invite the assault due to his state, and it is 
 
            just as possible that the assault would have occurred even 
 
            if claimant had been drinking non-alcoholic beverages all 
 
            night.  The evidence does not exclude other reasonable 
 
            causes for the accident which are totally unrelated to 
 
            claimant and his libations during the evening of November 1 
 
            and the morning hours of November 2, 1990.  
 
            
 
                 As a result, defendants' affirmative defense of 
 
            intoxication on the part of claimant fails. 
 
            
 
                 The second component of defendants' affirmative 
 
            defenses involves Iowa Code Section 85.16(3):
 
            
 
                    No compensation under this chapter shall be 
 
                 allowed for an injury caused:
 
            
 
                 By the willful act of a third party directed 
 
                 against the employee for reasons personal to such 
 
                 employee.
 
            
 
                 The record contains no evidence which suggests that 
 
            claimant had any type of a relationship with the men who 
 
            attacked him.  While that attack is certainly considered a 
 
            willful act of a third party, with no relationship with the 
 
            attackers, it would be difficult, if not impossible, to find 
 
            that claimant's attack stemmed from "reasons personal to 
 
            such employee" as required by the statute.  The assault, 
 
            battery and robbery were random.  Claimant was in the wrong 
 
            place at the wrong time.
 
            
 
                 As a result, defendants' affirmative defense of a 
 
            willful act of a third party direct against the employee for 
 
            reasons personal to such employee also fails.  
 
            
 
                 As a traveling employee, claimant was required to sleep 
 
            over in certain cities depending on when and where he could 
 
            pick up or drop off his loads.  
 
            
 
                 All of defendants' arguments are without merit.  1A 
 
            Larson Workmen's Compensation Law at section 25 states the 
 
            law with respect to a traveling employee:
 
            
 
                    Employees whose work entails travel away from 
 
                 the employer's premises are held in the majority 
 
                 of jurisdictions to be within the course of their 
 
                 employment continuously during the trip, except 
 
                 when a distinct department on a personal errand is 
 
                 shown.  Thus, injuries arising out of the 
 
                 necessity of sleeping in hotels or eating in 
 
                 restaurants away from home are usually held 
 
                 compensable.
 
            
 
                 At section 25.21 (a), Larson further states that:
 
            
 
                 [T]raveling employees, whether or not on call, 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 usually do receive protection when the injury has 
 
                 its origin in a risk created by the necessity of 
 
                 sleeping and eating away from home.  
 
            
 
                 Furthermore, Larson states at section 25.23(c):
 
            
 
                 [W]hen an employee is required to travel to a 
 
                 distant place on the business of his employer and 
 
                 is directed to remain at that place for a 
 
                 specified length of time, is status as an employee 
 
                 continues during the entire trip, and any injury 
 
                 occurring during such period is combinable, so 
 
                 long as the employee at the time of the injury was 
 
                 engaged in a reasonable activity.  
 
            
 
                 Reasonable activities have included a claimant seeking 
 
            nourishment in order to fortify himself for his pending 
 
            trip.  See, Walker V. Speeder Mach. Corp., 213 Iowa 1134, 
 
            140 N.W. 725 (1932).
 
            
 
                 Claimant was performing his job duties in a manner 
 
            consistent with his position as an over-the-road truck 
 
            driver.  He was attacked, and sustained serious injuries due 
 
            to the attack.  Claimant has shown by a preponderance of the 
 
            evidence that he sustained an injury on November 2, 1990 
 
            which arose out of and in the course of his employment. 
 
            
 
                 The next issue to address is whether there is a causal 
 
            relationship between claimant's work injury and any 
 
            permanent disability he may have. 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of November 2, 
 
            1990, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            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, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 At least one treating physician supplied the requisite 
 
            opinion that claimant's problems in his left eye resulted 
 
            from the assault.  Dr. Keller clearly states that the 
 
            beating caused vitreous hemorrhage in the left eye and 
 
            caused continued eye problems.  Dr. Massey, who subsequently 
 
            provided treatment to claimant for his left eye problems, 
 
            opined that claimant would be legally blind in the left eye 
 
            for the rest of his life, obviously a permanent condition.  
 
            
 
                 The eye problem is the only physical condition in the 
 
            record that has merited opinions from some of the physicians 
 
            involved in claimant's medical care.  Although claimant 
 
            alleged a brain injury, and there is evidence in the record 
 
            that he did sustain a contusion in the brain, there is no 
 
            evidence that it resulted in a permanent condition.  
 
            Claimant still suffers from headaches, but he has not sought 
 
            treatment for the same since January of 1992.  While 
 
            claimant testified that he continues to suffer from 
 
            headaches, memory loss and lack of concentration, there is 
 
            no objective evidence as to any loss of brain function to 
 
            account for these ailments.  The record reflects that 
 
            claimant has always suffered from an inability to 
 
            concentrate.  Additionally, claimant received a broken jaw 
 
            and a broken nose in the fight, but there is no evidence 
 
            that either condition caused a permanent disability.   
 
            
 
                 As a result, it is found that claimant has sustained 
 
            permanent disability to his left eye due to the work injury. 
 
            
 
                 The next issue to address is claimant's entitlement to 
 
            healing period benefits.  
 
            
 
                 Having found that claimant has sustained a permanent 
 
            disability due to the work injury, he is entitled to healing 
 
            period benefits.  Iowa Code Section 85.34(1) provides that 
 
            healing period benefits are payable to an injured worker who 
 
            has suffered permanent partial disability until (1) the 
 
            worker has returned to work; (2) the worker is medically 
 
            capable of returning to substantially similar employment; or 
 
            (3) the worker has achieved maximum medical recovery.  
 
            
 
                 Claimant's healing period benefits will begin on 
 
            November 2, 1990 and end on August 12, 1991, the day he was 
 
            released from Dr. Blodi's care.  While the undersigned 
 
            recognizes that claimant received further care and treatment 
 
            for his injuries from Dr. Laws after August 12, 1991, there 
 
            is no evidence in the record that he could not have worked 
 
            during the time he was actively treated by Dr. Laws.
 
            
 
                 The next issue to be addressed is whether claimant 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            sustained a scheduled member injury, or an injury to the 
 
            body as a whole.  
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory. The statute conferring this 
 
            right can also fix the amount of compensation payable for 
 
            different specific injuries.  The employee is not entitled 
 
            to compensation except as the statute provides.  Soukup v. 
 
            Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Section 85.34(2).  
 
            Permanent partial disabilities are classified as either 
 
            scheduled or unscheduled.  A specific scheduled disability 
 
            is evaluated by the functional method; the industrial method 
 
            is used to evaluate an unscheduled disability. Simbro v. 
 
            Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. 
 
            Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. 
 
            Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).
 
            
 
                 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).
 
            
 
                 If claimant has sustained an injury to the body as a 
 
            whole, he has sustained an industrial disability, and his 
 
            loss of earning capacity is analyzed.
 
            
 
                 Claimant has sustained a permanent injury to the left 
 
            eye.  There is no evidence that he has a permanent injury to 
 
            any other portion of his body, including his brain or back.  
 
            As a result, he is to be compensated by the schedule
 
            
 
                 The next issue to address is whether claimant is 
 
            entitled to medical benefits pursuant to Iowa Code Section 
 
            85.27:
 
               The employer, for all injuries compensable under this 
 
            chapter or chapter 85A, shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies therefor and shall allow reasonably 
 
            necessary transportation expense incurred for such services.
 
            
 
                 It has been found that claimant sustained an injury 
 
            which arose out of and in the course of his employment.  As 
 
            a result, he is entitled to medical benefits under the 
 
            applicable statute.  These benefits include payment of all 
 
            bills submitted at the hearing by claimant.  
 
            
 
                 The evidence is clear that claimant's left eye is 
 
            non-functional.  He has sustained a complete loss of use of 
 
            the eye, and is awarded 140 weeks of benefits to be paid at 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            the rate of $216.17 per week.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits from November 2, 1990 through August 12, 1991, 
 
            totaling forty point five seven one (40.571) weeks at the 
 
            rate of two hundred sixteen and 17/100 dollars ($216.17) per 
 
            week; 
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits totaling one hundred forty (140) weeks 
 
            at the rate of two hundred sixteen and 17/100 ($216.17) per 
 
            week commencing August 13, 1991; 
 
            
 
                 That defendants shall pay medical benefits pursuant to 
 
            Iowa Code section 85.27; 
 
            
 
                 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 wet forth in Iowa Code section 85.30;
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33; 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            
 
                 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.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr James M Hood
 
            Attorney at Law
 
            302 Union Arcade Bldg
 
            Davenport IA 52801
 
            
 
            Mr Greg A Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St
 
            Davenport IA 52801
 
            
 
            
 
 
            
 
 
 
 
 
 
 
                                                  5-1100; 5-1404.30
 
                                                  5-1000
 
                                                  Filed August 23, 1993
 
                                                  Patricia J. Lantz
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM COE,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 974094
 
            PST, INC.,                    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1404.30; 5-1600
 
            Claimant was employed as an over-the-road truck driver.  He 
 
            was severely beaten one evening.  Defendants denied 
 
            liability, and asserted that claimant was intoxicated at the 
 
            time of the hearing, and argued further that the assault was 
 
            a willful act of a third party directed against the employee 
 
            for reasons personal to such employee, pursuant to Iowa Code 
 
            Section 85.16.  
 
            
 
            Both of defendants' affirmative defenses failed.  It was 
 
            determined that while claimant was intoxicated at the time 
 
            of the assault, his intoxication was not a substantial 
 
            factor in causing the injury.  
 
            
 
            Likewise, it was found that claimant was selected at random 
 
            for purposes of the attack.  
 
            
 
            Claimant lost the use of his left eye due to the severe 
 
            injuries he sustained, and was awarded 140 weeks of 
 
            compensation.