2900
 
                                                 Filed August 5, 1994
 
                                                 MICHELLE A. McGOVERN
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            RODNEY SCOTT,  
 
                                                    File No. 976675
 
                 Claimant, 
 
                                                    D E C I S I O N
 
            vs.       
 
                                                         O N
 
            THOMS-PROESTLER,    
 
                                                    A L T E R N A T E
 
                 Employer, 
 
                                                     M E D I C A L
 
            and       
 
                                                       C A R E
 
            CONTINENTAL WESTERN,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            2900
 
            Alternate medical care was not awarded to claimant.  
 
            Claimant was dilatory in his request for a local physician.  
 
            Defendants had requested input from claimant.  Claimant 
 
            responded nearly one year later and only after he had 
 
            selected and treated with physicians of his own choosing. 
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                   
 
         RODNEY SCOTT,  
 
                                             File No. 976675
 
              Claimant, 
 
                                             D E C I S I O N
 
         vs.       
 
                                                  O N
 
         THOMS-PROESTLER,    
 
                                             A L T E R N A T E
 
              Employer, 
 
                                              M E D I C A L
 
         and       
 
                                                C A R E
 
         CONTINENTAL WESTERN,     
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ___________________________________________________________
 
         
 
                          STATEMENT OF THE CASE
 
         
 
         Claimant filed an original notice and petition concerning an 
 
         application for alternate medical care pursuant to section 85.27 
 
         of the Iowa Code and rule 343 IAC 4.48.  The petition was filed 
 
         on July 25, 1994.  In his petition claimant requested:
 
            5.  Claimant is dissatisfied with the care provided and has 
 
         communicated that dissatisfaction to employer.  Reason for 
 
         dissatisfaction:
 
            Claimant sought treatment with Dr. Leth of the Pain Clinic at 
 
         Mercy Hospital and has had significant improvement.  Claimant is 
 
         very happy with his treatment with Dr. Leth.
 
         On July 26, 1994, Byron K. Orton, Industrial Commissioner, filed 
 
         a delegation of authority.  In his order Commissioner Orton 
 
         provided that:
 
            Pursuant to Iowa Code section 86.3 the deputy industrial 
 
         commissioner presiding at the contested case in this application 
 
         for alternate medical care is hereby delegated the authority to 
 
         issue the final agency decision on the application.  There will 
 
         be no right of intra-agency appeal on this decision.  See 
 
         Continental Telephone Co. v. Colton, 348 N.W.2d 623 (Iowa 1984) 
 
         and LeaseAmerica Corp. v. Iowa Dept. of Revenue, 333 N.W.2d 847 
 
         (Iowa 1983).
 
            ....
 
            The presiding deputy industrial commissioner's decision in 
 
         this matter shall be the final agency decision.  See Iowa Code 
 
         section 17A.15(1).
 
         Also on July 26, 1994, the hearing administrator assigned the 
 
         matter for a telephone hearing.  The notice for hearing was 
 
         mailed to the parties on the same date.
 
         Defendants filed a written answer.  Bill Bribriesco appeared on 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         behalf of his client, Rodney Scott.  Jeff Margolin appeared on 
 
         behalf of defendants.  
 
         The hearing was recorded electronically by audio means.  The 
 
         record consists of the testimony of claimant.  The record also 
 
         consists of the testimony of Patrick Rohrs, claims 
 
         representative.  Finally the record is comprised of claimant's 
 
         exhibits A-C and defendants' exhibits 1-8.
 
         
 
                                   ISSUE
 
         
 
         The sole issue presented for resolution is whether claimant is 
 
         entitled to alternate medical care as provided by section 85.27 
 
         of the Iowa Code.
 
         
 
                  FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
         The deputy, having heard the testimony and considered all the 
 
         evidence, makes the following findings of fact and conclusions of 
 
         law:
 
         Claimant and defendants entered into a petition for commutation 
 
         of benefits with respect to a work injury which claimant 
 
         sustained on August 28, 1990.  The commutation provided that 
 
         workers' compensation benefits would be paid in full with the 
 
         exception of:
 
            11.  That the claimant's entitlement to medical services 
 
         (excluding psychiatric, psychological, or related services) 
 
         provided for under Iowa Code Section 85.27, which are reasonable 
 
         and causally related to the Claimant's injury of August 28, 1990, 
 
         will continue to remain open after approval of this commutation 
 
         by the Industrial Commissioner.
 
         The petition for commutation was approved by the industrial 
 
         commissioner on April 26, 1993.  Both prior to and subsequent to 
 
         the approval, defendants designated James Weinstein, M.D., and 
 
         Ernest M. Found, M.D., both of the Spine Diagnostic and Treatment 
 
         Center at the University of Iowa Hospitals and Clinics as the 
 
         authorized treating physicians.
 
         As of April 15, 1993, Dr. Weinstein prepared a rehabilitation 
 
         evaluation remeasurement.  In his report the authorized treating 
 
         physician determined:
 
            At this point in time we continue to believe that Mr. Scott 
 
         has chronic back pain and that the pain that he is having at this 
 
         time is not doing any specific harm or damage and that he must 
 
         continue to work very hard on an aggressive exercise approach to 
 
         continue to work on flexion and strengthening of his lower back.
 
            In terms of specific recommendations, we feel at this time 
 
         that Mr. Scott should be given the option of seeing physicians 
 
         locally in the Quad Cities.  He states it is very difficult for 
 
         him to come 60 miles for a simple physician's appointment so we 
 
         would certainly agree with this.
 
            We would be more than happy to see Mr. Scott at any time in 
 
         the future at his request.
 
         
 
         (Exhibit C)
 
         On April 27, 1993, defendants' attorney, Jeff M. Margolin, sent a 
 
         letter to claimant's attorney relative to the selection of a 
 
         local authorized treating physician.  Mr. Margolin wrote:
 
            Since our settlement allows for payment of future medical 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         expenses under section 85.26 which are reasonable and causally 
 
         related to your client's August 28, 1990, injury, we need to 
 
         designate an authorized treating physician.  Along those lines, 
 
         we are continuing to pick Dr. Ernest Found and Ted Wernimont at 
 
         the Spine Diagnostic and Treatment Center in Iowa City as the 
 
         sole authorized health-care providers to treat or examine Mr. 
 
         Scott for symptoms related to his injury.  Since this does 
 
         involve some travel on the part of the claimant, we would be 
 
         interested in reviewing the names of any doctors you may have in 
 
         mind in the Quad Cities area for this particular purpose.  Please 
 
         feel free to submit the names of any such physicians for our 
 
         review and consideration.  We look forward to hearing from you.
 
         
 
         (Ex. 7)
 
         No immediate response was made by either claimant or his 
 
         attorney.  For nearly one year there was no correspondence 
 
         between the respective parties.
 
         Claimant testified he was continuing to experience pain in his 
 
         back.  As a consequence, he perused the "yellow pages" for the 
 
         name of a physician.  His fingers did the walking and he found 
 
         the name of a general practitioner, Dr. Nelson (first name 
 
         unknown).  Claimant treated with Dr. Nelson for an unspecified 
 
         time.  She prescribed Vicodin for him and she made a referral to 
 
         Dr. Leth (first name unknown), Director of the Pain Center at 
 
         Mercy Hospital in Davenport, Iowa.  Dr. Leth is an 
 
         anethesiologist.  Claimant also treated with a Dr. Monta Skaufle 
 
         but this Deputy has no knowledge as to the nature of the 
 
         treatment.
 
         Claimant saw Dr. Leth for the first time on March 24, 1994.  Dr. 
 
         Leth treated claimant with an epidural block.  The physician also 
 
         prescribed some medication.
 
         The claim file, including claimant's medical expenses, had been 
 
         handled by the adjuster, Gary Tesdahl.  However, in the spring of 
 
         1994, Mr. Tesdahl was transferred and the file was then assigned 
 
         to Patrick Rohrs.  Mr. Rohrs testified at the hearing that he was 
 
         not very familiar with the file when some medical expenses and 
 
         prescription charges were presented to the insurance company for 
 
         payment.  As a result, Mr. Rohrs paid some charges for Dr. Nelson 
 
         and the company also paid some prescription charges.
 
         After the payment of the aforementioned medical bills, Mr. Rohrs 
 
         better familiarized himself with the file.  His testimony 
 
         indicated he realized that Dr. Nelson and Dr. Leth were not 
 
         authorized treating physicians.  As a consequence, Mr. Rohrs 
 
         denied payment of any subsequent medical expenses from Dr. 
 
         Nelson, or from Dr. Leth.
 
         Because claimant's medical expenses were disallowed, he contacted 
 
         his attorney, Bill Bribriesco.  On May 17, 1994 a letter was 
 
         forwarded to the attorney for defendants.  Claimant's counsel 
 
         wrote:
 
            Thank you for your letter dated May 12, 1994.  We were under 
 
         the impression that Dr. Leth was designated as an authorized 
 
         treating physician for Rodney.  If our understanding is 
 
         incorrect, please be advised that we wish Dr. Leth to be 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         designated an authorized physician.  Dr. Leth is local, and an 
 
         extremely competent doctor.  Dr. Leth's specialty is 
 
         anesthesiology.  Dr. Leth has been assisting Rodney in pain 
 
         management.  We will be happy to obtain copies of Dr. Leth's 
 
         records and forward them to you if you so desire.
 
         
 
         (Ex. A)
 
         Jeff Margolin, attorney for defendants, sent a reply letter on 
 
         June 6, 1994.  In his letter, Mr. Margolin wrote in relevant 
 
         portion:
 
            I am in receipt of your correspondence dated May 17, 1994 to 
 
         Pat Rohrs at Continental Western Insurance Company.  In my letter 
 
         to you of April 27, 1993, I indicated that Dr. Ernest Found at 
 
         the Spine Diagnostic and Treatment Center at the University of 
 
         Iowa Hospitals in Iowa City was the sole authorized treating 
 
         physician for Mr. Scott.  As I recall, we never received a reply 
 
         from you as to the names of any doctors you wanted your client to 
 
         see that may have been closer to him in the Quad Cities area.  As 
 
         a result, we consider as unauthorized your client's recent 
 
         medical treatment which he has received at Mercy Hospital in 
 
         Davenport.  This also includes any treatment or office visits to 
 
         Dr. Monte Skaufle or Dr. Nelson.  We will not pay for any charges 
 
         incurred by Mr. Scott for any of this medical treatment which we 
 
         consider unauthorized.
 
            Please be advised that we will now consider Dr. Michael Cullen 
 
         as another authorized treating physician for Mr. Scott.  Dr. 
 
         Michael Cullen's office is located at 1410 7th Street in Moline, 
 
         Illinois.  If Mr. Scott is continuing to experience back 
 
         symptoms, he should contact Dr. Cullen's office to schedule an 
 
         office visit.  We have already received approval from Dr. Cullen 
 
         that he would be willing to examine Mr. Scott if necessary.
 
         
 
         (Ex. 5)
 
         Attorney Bribriesco forwarded another letter to defendants' 
 
         attorney.  The letter was dated June 13, 1994.  In the letter 
 
         claimant's attorney again requested authorization for treatment 
 
         with Dr. Leth.  The basis for the request was:
 
         Please be advised that Rodney wishes to have Dr. Leth at the Pain 
 
         Clinic at Mercy Hospital, Davenport, Iowa, to be his authorized 
 
         doctor.  Rodney has had significant improvement since he began 
 
         treating with Dr. Leth and Rodney is extremely happy with Dr. 
 
         Leth.  As to Dr. Skaufle and Dr. Nelson, Rodney does not treat 
 
         with either of them.  Please advise if this is acceptable, or if 
 
         we need to file an application with the Industrial Commissioner.
 
         Defendant's attorney next replied by letter on June 15, 1994.  
 
         Defendants scheduled claimant with the authorized treating 
 
         physician, Dr. Cullen.  An appointment was set for June 27, 1994 
 
         at 2:15 p.m.
 
         Defendants' attorney forwarded another letter to claimant's 
 
         attorney on June 27, 1994.  Mr. Margolin indicated in part:
 
            This letter will confirm that on Friday, June 24, 1994 at 
 
         approximately 1:45 p.m. you called and notified me that your 
 
         client was going to be out of town and therefore unable to keep 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         the appointment we had scheduled with Dr. Cullen for Monday, June 
 
         27th.  I contacted Dr. Cullen's office and cancelled this exam 
 
         and have now rescheduled it for Monday, July 18, 1994 beginning 
 
         at 2:00 p.m.  Once again, I am requesting your cooperation in 
 
         seeing that your client keeps this new appointment with Dr. 
 
         Cullen as scheduled.
 
         Then on July 26, 1994, defendants' attorney again wrote a letter 
 
         to claimant's attorney.  The letter stated:
 
            I have been advised by Dr. Michael Cullen that Mr. Scott 
 
         failed to keep his scheduled appointment which was set for 
 
         Monday, July 18, 1994.  You will recall in my letter to you of 
 
         June 27, 1994 I informed you that we had rescheduled this exam 
 
         with Dr. Cullen for this date.  This is the second time that Mr. 
 
         Scott has now failed to keep a scheduled appointment with Dr. 
 
         Cullen.  As you are aware, the only authorized treating 
 
         physicians for Mr. Scott are Dr. Ernest Found at the University 
 
         of Iowa Hospitals in Iowa City and Dr. Michael Cullen.  We will 
 
         not pay for any medical charges, including prescription expenses, 
 
         which are not authorized by either or [sic] these two physicians.  
 
         If you have any further questions concerning our position in this 
 
         matter, please feel free to give me a call.
 
         
 
         (Ex. 1)
 
         During the hearing claimant testified that he first discussed 
 
         with his own attorney the names of potential local physicians.  
 
         Claimant testified that the conversation occurred on April 27, 
 
         1993.  This date happened to be on the very same date that Mr. 
 
         Margolin drafted a letter requesting the names of acceptable 
 
         physicians in the Quad Cities.  Nevertheless, despite claimant's 
 
         contention that he discussed the issue of a local physician with 
 
         his lawyer, his attorney did not forward any request to 
 
         defendants until nearly one year later.  Claimant's input was 
 
         untimely.
 
         Claimant  was unable to attend the first appointment with Dr. 
 
         Cullen as claimant was vacationing in St. Louis.  He was unable 
 
         to provide the dates of his trip, however.  Claimant denied ever 
 
         knowing about the second scheduled appointment.  Claimant was a 
 
         very poor historian.
 
         Section 85.27 of the Iowa Code provides in relevant portion:
 
            For purposes of this section, the employer is obliged to 
 
         furnish reasonable services and supplies to treat an injured 
 
         employee, and has the right to choose the care.  The treatment 
 
         must be offered promptly and be reasonably suited to treat the 
 
         injury without undue inconvenience to the employee.  If the 
 
         employee has reason to be dissatisfied with the care offered, the 
 
         employee should communicate the basis of such dissatisfaction to 
 
         the employer, in writing if requested, following which the 
 
         employer and the employee may agree to alternate care reasonably 
 
         suited to treat the injury.  If the employer and employee cannot 
 
         agree on such alternate care, the commissioner may, upon 
 
         application and reasonable proofs of the necessity therefor, 
 
         allow and order other care....
 
         The employer has the right to choose the provider of care, except 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         where the employer has denied liability for the injury.  Section 
 
         85.27; Holbert v. Townsend Engineering Co., Thirty-second 
 
         Biennial Report of the Industrial Commissioner 78 
 
         (Review-Reopening 1975).
 
         In the case of Wright v. Super 8 Lodge of Des Moines, File No. 
 
         858615 (arbitration filed February 20, 1990), the deputy 
 
         industrial commissioner held that even when defendants are 
 
         entitled to choose the authorized treating physician, defendants 
 
         cannot interfere with the physician's professional judgment.  The 
 
         authorized treating physician is best able to determine what 
 
         treatment modalities are best for a given condition.  
 
         In an appeal decision dealing with an application for alternate 
 
         medical care, the industrial commissioner affirmed the presiding 
 
         deputy industrial commissioner's denial of alternate medical 
 
         care.  See Barry Long v. Robert's Dairy Company, File number 
 
         982297 (Appeal Decision, February 5, 1993).  An application for 
 
         alternate medical care is not automatically sustained because a 
 
         claimant is dissatisfied with the care he has been receiving.  In 
 
         Long, the deputy determined that mere dissatisfaction with the 
 
         medical care is not ample grounds for granting an application for 
 
         alternate medical care.  Rather, the claimant must show that the 
 
         care was not offered promptly; was not reasonably suited to treat 
 
         the injury; or that the care was unduly inconvenient for 
 
         claimant.
 
         In the instant case, the authorized treating physicians at the 
 
         Spine Diagnostic Treatment Center opined claimant would be better 
 
         served if he could treat with a physician in the Quad Cities.  
 
         Defendants acquiesced with this decision.  As of April 27, 1993, 
 
         defendants invited input from claimant and his attorney with 
 
         respect to the selection of a local physician.  Claimant 
 
         testified he discussed the issue with his lawyer on the exact 
 
         date the written request was made.  Nevertheless, claimant and 
 
         his attorney did not communicate the requested input until 
 
         claimant had already treated with several other physicians.  It 
 
         was nearly one year later that claimant's attorney provided to 
 
         defendants a request for alternate medical care.   It is not 
 
         surprising that with such poor communication from claimant, the 
 
         defendants selected a local physician without the assistance of 
 
         claimant.   In this deputy's opinion, defendants had more than 
 
         adequately cooperated with claimant.
 
         Defendants have selected Dr. Cullen as the duly authorized 
 
         treating physician.  They have set two appointments for claimant 
 
         with the treating doctor.  For one reason or another, claimant 
 
         has neglected to appear for those appointments.  Claimant 
 
         maintains the second appointment was not communicated to him.  If 
 
         such is the case, then claimant and his lawyer need to work on 
 
         improving their attorney-client relationship.  Again, in the 
 
         opinion of this deputy, defendants have attempted to accommodate 
 
         claimant.  They have tried to select a physician who practices in 
 
         claimant's own geographical location.  They have offered care in 
 
         a prompt fashion.  It is claimant who has been dilatory in making 
 
         his request for alternate medical care.  Unreasonable treatment 
 
         is not at issue.  The evidence is quite the contrary.  Claimant 
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         has failed to appear for treatment on two separate occasions.
 
         Claimant has failed to prove by a preponderance of the evidence 
 
         that he is entitled to alternate medical care.  Defendants have 
 
         designated Dr. Cullen as the authorized treating physician.  
 
         Defendants shall schedule another appointment for claimant with 
 
         Dr. Cullen.  The appointment shall be scheduled as soon as 
 
         practicable but at least within thirty days of the filing of this 
 
         decision.
 
         
 
                                   ORDER
 
         
 
         THEREFORE, it is ordered:
 
         The application for alternate medical care is denied in part with 
 
         respect to the treatment by Dr. Nelson and Dr. Leth.  However, 
 
         defendants shall schedule an appointment with Dr. Cullen for 
 
         claimant.
 
         Costs, if any, are assessed to claimant pursuant to rule 343 IAC 
 
         4.33.
 
         
 
         
 
         
 
              Signed and filed this ____ day of August, 1994.
 
         
 
         
 
         
 
         
 
         
 
                                     ______________________________               
 
                                     MICHELLE A. McGOVERN
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William J. Bribriesco
 
         Attorney at Law
 
         2407 18th Street 
 
         STE 202
 
         Davenport  IA  52722
 
         
 
         Mr. Jeff Margolin
 
         Attorney at law
 
         Terrace Center  STE 111
 
         2700 Grand Ave
 
         Des Moines  IA  50312
 
         
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RONALD E SILVER,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 976681
 
            THE TIMMERMAN COMPANY,        :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Ronald 
 
            E. Silver, claimant, against The Timmerman Company, 
 
            employer, and Wausau Insurance Companies, insurance carrier, 
 
            defendants, to recover benefits under the Iowa Workers' 
 
            Compensation Act as a result of an alleged injury sustained 
 
            on June 14, 1989.  This matter came on for hearing before 
 
            the undersigned deputy industrial commissioner on June 30, 
 
            1992, in Davenport, Iowa.  The record was considered fully 
 
            submitted at the close of the hearing.  The claimant was 
 
            present and testified.  Also present and testifying was 
 
            Gerald Martin.  Documentary evidence identified in the 
 
            record consists of joint exhibits 1 through 8 and claimant's 
 
            exhibits 3 and 4.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the prehearing report and order dated June 
 
            30, 1992, the parties have presented the following issues 
 
            for resolution:
 
            
 
                 1.  Whether claimant sustained an injury on June 14, 
 
            1989, which arose out of and in the course of employment 
 
            with employer;
 
            
 
                 2.  Whether the alleged injury is a cause of temporary 
 
            and permanent disability;
 
            
 
                 3.  The extent of entitlement to weekly compensation 
 
            for permanent disability; and
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27 and the reasonableness of such 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on September 5, 1946, and completed 
 
            the twelfth grade of school.  He has a B.A. degree from the 
 
            University of Iowa and a J.D. from Drake Law School.  
 
            Claimant was a practicing attorney in the state of Iowa 
 
            until November 1986 when his license was revoked for 
 
            mishandling trust accounts. 
 
            
 
                 On March 1, 1989, claimant commenced working for 
 
            employer.  Employer manufactures floor products and claimant 
 
            was hired as a territorial salesman.  He was terminated from 
 
            this position on April 15, 1990, for failure to fully 
 
            perform his job duties.  From June 3, 1990 through August 
 
            1991, he worked as an insurance salesman.  He quit this job 
 
            because of its extensive travel requirements.  In June 1991 
 
            he commenced working for Ruhl and Ruhl Real Estate Company 
 
            as a real estate salesman.  He is still employed in this 
 
            capacity.  Claimant testified that his 1992 income to date 
 
            is $9200.  
 
            
 
                 A review of the pertinent medical evidence of record 
 
            reveals that on April 25, 1985, claimant was seen in Mercy 
 
            Hospital emergency room after slipping and falling while 
 
            swinging a golf club.  He presented with complaints of low 
 
            back pain, left buttock pain and numbness down the left leg.  
 
            A CT scan of the lumbar spine was performed.  It showed a 
 
            herniated disc at L5-S1 on the left side.  Claimant's 
 
            treating physician, Fred Green, D.O., referred him to John 
 
            E. Sinning, Jr., M.D., for evaluation.  The record is silent 
 
            as to Dr. Sinning's evaluation at this time and whether any 
 
            further treatment was recommended (joint exhibits 1 & 6).
 
            
 
                 Claimant testified that on June 14, 1989, while driving 
 
            back from a contractors' meeting in Iowa City, Iowa, he had 
 
            to swerve his car in order to miss hitting a deer.  He 
 
            testified that his car spun around 360 degrees and he 
 
            wrenched his back during this maneuver.  He reported the 
 
            incident to Gerald Martin, his supervisor,  the next day and 
 
            was told to set up a chiropractic appointment with Dennis 
 
            Stierwalt, D.C..  Dr. Stierwalt had treated claimant in the 
 
            past for various orthopedic problems.  
 
            
 
                 The medical evidence indicates that claimant saw Dr. 
 
            Stierwalt on June 15, 1989.  He presented with low back pain 
 
            and left leg tingling.  When seen the next day, he ached 
 
            some but felt much better (ex. 7, page 4).
 
            
 
                 There is no indication in the record that Dr. Stierwalt 
 
            prescribed medication or a treatment program.  He saw 
 
            claimant again on August 11, 1989.  At this time, claimant 
 
            presented with complaints of left low back pain.  He 
 
            indicated that one week prior he had been wrestling with his 
 
            dog (ex. 7, p. 4).  Again, no medication or treatment was 
 
            prescribed.  Claimant then saw Dr. Stierwalt on October 9, 
 
            1989, with complaints of left lumbar area pain after 
 
            refereeing a basketball game three days prior (ex. 7, p. 5).  
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Dr. Green then referred claimant for an MRI lumbar 
 
            spine evaluation on October 17, 1989.  The results revealed 
 
            degenerative disc disease at L4-5 and L5-S1 with small 
 
            herniation and L4-5 (jt. ex. 3).  
 
            
 
                 Claimant continued to see Dr. Stierwalt for follow-up 
 
            evaluations on November 17, 30 and December 7, 1989; 
 
            February 27 and March 9, 1990 (ex. 7, p. 5).
 
            
 
                 On April 2, 1990, claimant presented to Dr. Green for 
 
            evaluation and request for referral to a neurosurgeon.  His 
 
            notes state that "Patient has a long-standing history since 
 
            1985 from an old back injury where patient injured his back 
 
            while swinging a gold [sic] club.  Has had CT scan which 
 
            showed ruptured disc of L5-S1.  This is further personnified 
 
            [sic] by MRI."  Claimant complained that his pain never 
 
            completely resolved.  On examination, straight leg raising 
 
            was positive on the left with complaints of muscle weakness.  
 
            Dr. Green referred claimant to Byron Rovine, M.D., for 
 
            surgery consultation (ex. 1, p. 3).  
 
            
 
                 Dr. Rovine admitted claimant to St. Luke's Hospital on 
 
            April 19, 1990.  A myelography was performed which 
 
            demonstrated a large left and central filling defect at 
 
            L4-5.  Intradural compression of the first sacral nerve root 
 
            could be seen as a result of this disc herniation.  On April 
 
            20, 1990, a hemilaminotomy at L4-5 was carried out, with the 
 
            finding and removal of a large subligamen-tous disc 
 
            extrusion, the extruded portion of which was under the 
 
            lateral aspect of the dural sac, and compressing it.  
 
            Claimant was discharged on April 23, 1990, in good condition 
 
            (ex. 5).
 
            
 
                 Dr. Rovine saw claimant for a follow-up examination on 
 
            May 2, 1990.  He reported that claimant was "Doing extremely 
 
            well.  No leg pain."  He also noted excellent range of 
 
            motion.  He advised claimant, who at this time was already 
 
            walking five miles, to increase activity.  On June 4, 1990, 
 
            Dr. Rovine again reported that claimant was "Doing well,"  
 
            and scheduled him for appointments on an as needed basis 
 
            (ex. 4, p. 1). 
 
            
 
                 On May 31, 1991, claimant reported to Dr. Rovine for a 
 
            disability evaluation.  Dr. Rovine assessed a permanent 
 
            partial impairment at 6 percent, based on 2 percent for loss 
 
            of flexion, 2 percent for loss of extension, and 1 percent 
 
            each for the mild motor and sensory deficits which persist 
 
            (ex. 8). 
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on June 14, 1989, 
 
            which arose out of and in the course of his employment. 
 
            McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 
 
            1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 
 
            130 (Iowa 1967).  The words "arising out of" have been 
 
            interpreted to refer to the cause and origin of the injury.  
 
            McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971);   
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 
 
            65 (Iowa 1955).  The words "in the course of" refer to the 
 
            time, place and circumstances of the injury.  McClure, 188 
 
            N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An injury occurs in 
 
            the course of the employment when it is within the period of 
 
            employment at a place the employee may reasonably be, and 
 
            while the employee is doing work assigned by the employer or 
 
            something incidental to it.  Cedar Rapids Community School 
 
            District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure 
 
            188 N.W.2d at 287; Musselman, 154 N.W.2d at 130. 
 
            
 
                 The supreme court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes about, 
 
            not through the natural building up and tearing down of the 
 
            human body, but because of a traumatic or other hurt or 
 
            damage to the health or body of an employee.  The injury to 
 
            the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 Claimant testified that on June 14, 1989, he was on his 
 
            way home from a contractors' meeting in Iowa City.  As a 
 
            territorial salesman for employer, claimant was required to 
 
            furnish his own car, set his own route and establish his own 
 
            weekly work schedule.  He had no set starting or ending 
 
            time.  
 
            
 
                 The general rule is that, absent special circumstances, 
 
            an employee is not entitled to compensation for injuries 
 
            occurring off of the employer's premises on the way to and 
 
            from work.  Under a separate rule which acts as an exception 
 
            to the "going and coming" rule, an employee's trip to and 
 
            from work is considered within the course of employment if 
 
            the employee is required, as a part of employment, to 
 
            provide a vehicle for use during the working day.  Medical 
 
            Associates Clinic, P.C. v. First National Bank of Dubuque, 
 
            440 N.W.2d 374 (Iowa 1989).
 
            
 
                 Gerald Martin, administrative vice-president, testified 
 
            at the hearing.  He stated he has no reason to doubt 
 
            claimant's recitation of the facts regarding the June 14, 
 
            1989, incident.  He acknowledged that he was notified by 
 
            claimant on June 15, 1989, of the incident and he authorized 
 
            medical treatment with a physician of claimant's choice.  
 
            Claimant's version of the events on June 14, 1989, is 
 
            uncontroverted.
 
            
 
                 Therefore, claimant has met his burden of proof.  He 
 
            has shown by a preponderance of the evidence that he 
 
            sustained a work-related injury on June 14, 1989.
 
            
 
                 The next issue to be determined is whether claimant's 
 
            injury caused temporary disability which required him to 
 
            take time off work for treatment.  
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 While a claimant is not entitled to compensation for 
 
            the results of a preexisting injury or disease, its mere 
 
            existence at the time of a subsequent injury is not a 
 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 
 
            N.W.2d 756 (1956).  If the claimant had a preexisting 
 
            condition or disability that is materially aggravated, 
 
            accelerated, worsened or lighted up so that it results in 
 
            disability, claimant is entitled to recover.  Nicks v. 
 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); 
 
            Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 
 
            N.W.2d 299 (1961).
 
            
 
                 The record clearly indicates that claimant has a 
 
            history of back problems dating back to an injury on April 
 
            25, 1985.  A CT scan taken on April 25, 1985, revealed a 
 
            herniated disc at L5-S1 on the left side.  Claimant had one 
 
            chiropractic treatment on September 2, 1986, and no other 
 
            medical treatment until June 16, 1989, when he was given a 
 
            full spinal massage after wrenching his low back the day 
 
            before.  He received the same type of treatment on August 
 
            11, 1989, after hurting his left low back wrestling with 
 
            this dog and again on October 9, 1989, after refereeing a 
 
            backetball game.  Thereafter, claimant had chiropractic 
 
            treatments in November/December 1989 and February/March 
 
            1990.
 
            
 
                 At no time, did Dr. Stierwalt connect claimant's 
 
            chiropractic treatments to the injury sustained on June 14, 
 
            1989.  Claimant lost no time from work as a result of the 
 
            June 14, 1989, incident.  Claimant was able to perform his 
 
            usual and customary job duties with employer, without 
 
            restrictions or medical limitations.  He was terminated by 
 
            employer on April 15, 1990, for reasons unrelated to his 
 
            medical problems.  After termination, he aggressively 
 
            pursued medical treatment and surgical intervention.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Three physicians in this case have provided expert 
 
            opinion on the question of causal connection.  One 
 
            physician, claimant's primary treating chiropractor, has 
 
            provided no opinion in this regard.  Dr. Rovine, claimant's 
 
            surgeon, wrote in a hospital admission summary that "His 
 
            present difficulty began in June, 1989.  He was driving, 
 
            during the course of his regular employment, when a deer 
 
            jumped out onto the highway in front of his car.  In jamming 
 
            on the brakes, he stopped suddenly and his back was twisted 
 
            and he developed severe low back pain in the left 
 
            lumbosacral area, followed very shortly by severe sciatica." 
 
            (ex. 5, p. 11).
 
            
 
                 Claimant, in reciting his medical history, failed to 
 
            inform Dr. Rovine about the two intervening events in August 
 
            and October 1989.  Both incidents resulted in a flare-up of 
 
            low back pain.  Dr. Rovine's opinion is no more then a 
 
            paraphrase of the incomplete medical history given to him by 
 
            claimant.  Dr. Rovine only reiterated what claimant reported 
 
            to him and such report is deficient because it fails to 
 
            relate the traumas in August and October 1989.  Therefore, 
 
            Dr. Rovine's opinion as to medical causation is rejected.  
 
            Dr. Green's opinion is rejected for the same reason.
 
            
 
                 The only other opinion expressed by a medical expert is 
 
            the opinion rendered by Dr. Sinning on June 5, 1991.  Dr. 
 
            Sinning was claimant's previous treating orthopedic surgeon.  
 
            In rendering his opinion, Dr. Sinning reviewed all of the 
 
            medical records, including those of Dr. Green, Dr. Rovine 
 
            and Dr. Stierwalt.  He related as follows:
 
            
 
                    Reviewing this record, there is certainly no 
 
                 continuity of complaints to suggest that there is 
 
                 any connection between the accident in June, 1989 
 
                 and the surgery the following April, 1990.  Too 
 
                 many things happened after that June 14, 1989 
 
                 accident to call it a precipitating episode.  It 
 
                 is especially notable that on June 16, Dr. 
 
                 Stierwalt records Mr. Silver's condition as 
 
                 better.  Then Dr. Stierwalt sees him with two 
 
                 significant episodes of trauma later on in the 
 
                 fall.  Finally, we learned from Mr. Silver's 
 
                 deposition that he was involved in both 
 
                 racquetball and golf during the winter and early 
 
                 spring of 1990.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
         
 
                 The MRI showed a small herniation in the midline 
 
              toward the left, but the final myelogram showed a 
 
              significant herniation at L4-5 on the left side, a real 
 
              change from the MRI on October, 1989.
 
         
 
                 It is my conclusion that the June 14, 1989 incident 
 
              had no effect on that progression of events that 
 
              apparently started some time later in the fall of 1989 
 
              with a minor 4-5 disc herniation culminating in a 
 
              significant herniation in April, 1990.  In fact, the 
 
              significant herniation may not have occurred until 
 
              March, 1990 when Dr. Stierwalt comments on the 
 
              complaint of left gluteal pain.
 
         
 
         (exhibit 6, page 2)
 
         
 
              After carefully reviewing the total evidence in this case, 
 
         the undersigned is persuaded that the incident of June 14, 1989, 
 
         resulted in a temporary aggravation of a previous back condition.  
 
         Claimant has not proven by a preponderance of the evidence, that 
 
         the June 14, 1989, incident was the precipitating cause resulting 
 
         in surgery on April 20, 1990.  Claimant is not entitled to 
 
         temporary or permanent disability benefits under the Iowa 
 
         Workers' Compensation Act.
 
         
 
              This issue is dispositive of the entire case and further 
 
         analysis in unnecessary.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant shall take nothing from these proceedings.
 
         
 
              The parties shall pay their own costs in this action 
 
         pursuant to rule 343 IAC 4.33.
 
         
 
              Signed and filed this ____ day of July, 1992.
 
         
 
         
 
                                       ______________________________
 
                                       JEAN M. INGRASSIA
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Earl A. Payson
 
         Attorney at Law
 
         126 Kirkwood Blvd
 
         Davenport, Iowa  52803
 
         
 
         Mr. Craig A. Levien
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         111 E 3rd St
 
         Davenport, Iowa  52801
 
         
 
 
            
 
            
 
            
 
            
 
            
 
                                                 51100 51801
 
                                                 Filed July 15, 1992
 
                                                 Jean M. Ingrassia
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            RONALD E SILVER,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 976681
 
            THE TIMMERMAN COMPANY,   
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            WAUSAU INSURANCE COMPANIES,   
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1100
 
            Claimant, a traveling salesman, proved by a preponderance of 
 
            the evidence that he sustained an injury arising out of and 
 
            in the course of employment with employer.
 
            
 
            5-1801
 
            Claimant incurred a temporary aggravation of a preexisting 
 
            back condition as a result of his work-related injury.  
 
            However, he lost no time from work as a result of the 
 
            incident.  Two intervening events which also aggravated 
 
            claimant's preexisting back condition ultimately resulted in 
 
            surgery being performed in April 1990.  This surgery was 
 
            determined not to be caused by claimant's original incident.
 
            
 
 
         
 
     
 
         
 
         
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         GLENDA J. HAYNES,     
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                              File No. 976684
 
         PALMER CANDY COMPANY,      
 
                                               A P P E A L
 
              Employer,   
 
                                              D E C I S I O N
 
         and         
 
                     
 
         AETNA CASUALTY & SURETY,   
 
                     
 
              Insurance Carrier,    
 
                     
 
         and         
 
                     
 
         SECOND INJURY FUND OF IOWA,     
 
                     
 
              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 
 
         September 3, 1992 is affirmed and is adopted as the final agency 
 
         action in this case with the following additional analysis:
 
         
 
         Claimant has not proved that she has sustained a second 
 
         qualifying compensable permanent loss of use of a member 
 
         enumerated in Iowa Code section 85.64.  Claimant argues that she 
 
         has bilateral carpal tunnel syndrome.  There is insufficient 
 
         evidence in this record to conclude that the alleged bilateral 
 
         carpal tunnel syndrome was work related or that claimant has 
 
         suffered a permanent loss of an enumerated member from the 
 
         bilateral carpal tunnel syndrome.  Joel T. Cotton, M.D., opined 
 
         that there was no permanent impairment to either upper extremity 
 
         due to carpal tunnel syndrome (Joint Exhibit 1, page 3).
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         
 
         Signed and filed this ____ day of September, 1993.
 
         
 
         
 
         
 
         
 
                                     ________________________________
 
                                            BYRON K. ORTON
 
                                       INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Roger Carter
 
         Attorney at Law
 
         P.O. Box 912
 
         Sioux City, Iowa 51102
 
         
 
         Ms. Judith Ann Higgs
 
         Attorney at Law
 
         P.O. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
         Ms. Shirley Ann Steffe
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
                  
 
 
 
 
 
                                         5-1100
 
                                         Filed September 24, 1993
 
                                         BYRON K. ORTON 
 
                      
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            GLENDA J. HAYNES,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 976684
 
            PALMER CANDY COMPANY,      
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            AETNA CASUALTY & SURETY,   
 
                        
 
                 Insurance Carrier,    
 
                        
 
            and         
 
                        
 
            SECOND INJURY FUND OF IOWA,     
 
                        
 
                 Defendants.      
 
            ____________________________________________________________
 
               
 
            5-1100
 
            Claimant failed to prove by a preponderance of the evidence 
 
            that he sustained a work-related injury.  Claimant had been 
 
            told to punch out on the time clock and wait for five to six 
 
            hours before returning to work.  Claimant was free to do 
 
            anything he wanted during the time he was off duty.
 
            
 
 
            
 
 
 
 
 
 
 
                                              3202
 
                                              Filed September 24, 1993
 
                                              BYRON K. ORTON 
 
                      
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            GLENDA J. HAYNES,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                              File No. 976684
 
            PALMER CANDY COMPANY,      
 
                                                A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            AETNA CASUALTY & SURETY,   
 
                        
 
                 Insurance Carrier,    
 
                        
 
            and         
 
                        
 
            SECOND INJURY FUND OF IOWA,     
 
                        
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            3202
 
            Claimant failed to prove a loss or loss of use to a 
 
            designated second injury pursuant to Iowa Code section 
 
            85.64.  
 
            
 
            Claimant sustained a work-related injury to her left knee in 
 
            October 1989.  She was off work from October 27, 1989 
 
            through March 26, 1990.  She returned to work in March and 
 
            quit in April 1990 due to left knee problems.
 
            Claimant alleges that she quit work in April 1990 due to 
 
            left knee and cumulative injuries to her upper extremities.  
 
            The medical evidence does not support claimant's contentions 
 
            that she has a permanent disability to her upper 
 
            extremities.  
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            GLENDA J. HAYNES,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 976684
 
            PALMER CANDY COMPANY,         :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Glenda 
 
            J. Haynes, claimant, against the Second Injury Fund of Iowa, 
 
            for benefits as the result of an alleged injury which 
 
            occurred on April 19, 1990.  An agreement for settlement 
 
            between claimant, employer and its insurance carrier was 
 
            approved on April 20, 1992, eliminating these two initial 
 
            defendants from the case.  
 
            
 
                 This matter came on for hearing before the undersigned 
 
            deputy industrial commissioner in Sioux City, Iowa, on 
 
            August 14, 1992.  The record was considered fully submitted 
 
            at the close of the hearing.  The record in this case 
 
            consists of joint exhibits 1 through 31.  The claimant was 
 
            present and testified.  Also present and testifying were 
 
            Arnold Haynes and Lynne Easterday.
 
            
 
                                      ISSUE
 
            
 
                 The sole issue is whether claimant is entitled to 
 
            benefits from the Second Injury Fund of Iowa.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits, and makes the following findings:
 
            
 
                 Claimant seeks permanent partial disability benefits 
 
            from the State of Iowa Second Injury Fund for the combined 
 
            disability caused by an October 27, 1989, injury to her left 
 
            knee and an alleged April 19, 1990, bilateral carpal tunnel 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            syndrome.
 
            
 
                 Claimant was born on April 14, 1938, and completed the 
 
            twelfth grade of school.  After graduating from high school, 
 
            she taught elementary school in rural Nebraska for ten 
 
            years.  She then took 15 years off to raise her two 
 
            children.  She returned to work in 1979 as a sales person 
 
            with Younker's Bakery and then as a line worker with 
 
            Durapac.  On June 8, 1981, she commenced working for 
 
            employer as a line worker.  Her job required prolonged 
 
            standing.  In November 1989 claimant developed left knee 
 
            symptoms.  She developed knee problems in October 1989 but 
 
            continued to work on and off through July 28, 1990.  She 
 
            also worked in the repack room sealing, labeling and loading 
 
            boxes.
 
            
 
                 The medical evidence reveals that claimant was 
 
            evaluated by Duane K. Nelson, M.D., on November 16, 1989, 
 
            with complaints of left knee pain.  She related the onset of 
 
            pain to October 27, 1989, but could not recall any specific 
 
            work injury.  She reported doing a lot of twisting and 
 
            lifting boxes while working on the line.  An MRI examination 
 
            was performed on November 17, 1989, which revealed internal 
 
            derangement in the left knee (exhibit 9, pages 23-24).
 
            
 
                 Claimant entered St. Luke's Regional Medical Center on 
 
            December 6, 1989, and Dr. Nelson performed a left knee 
 
            arthroscopic partial lateral meniscectomy.  Postoperative 
 
            diagnosis was torn lateral meniscus of the left knee and 
 
            early osteoarthritis (ex. 11). 
 
            
 
                 Claimant continued to experience left knee pain and Dr. 
 
            Nelson referred her to the Mayo Clinic for evaluation on 
 
            July 27, 1990.  X-rays of both knees showed degenerative 
 
            changes with narrowed lateral compartments and a valgus 
 
            deformity of the left knee of nine degrees.  While at the 
 
            Mayo Clinic, claimant was seen by Bradford Currier, M.D., in 
 
            orthopedics and Sherwin Goldman, M.D., at the Impairment 
 
            Evaluation Center.  Surgical options were discussed with 
 
            claimant including osteotomy, arthrodesis or total knee 
 
            replacement.  Claimant was 251 pounds and advised to lose 
 
            weight.  Dr. Goldman indicated that claimant could perform 
 
            sedentary work activity but no work where she would have to 
 
            stand, stoop, squat, climb ladders, or bend and twist with 
 
            her left knee.  Dr. Goldman gave her a 10 percent permanent 
 
            partial impairment rating of the left knee (exs. 2-6).
 
            
 
                 Claimant testified that she was off work from October 
 
            27, 1989 through March 1990.  She returned to work on March 
 
            27, 1990, and worked until April 19, 1990.  Lynne Easterday, 
 
            claimant's vocational rehabilitation consultant, reported on 
 
            October 30, 1991, that claimant developed knee problems in 
 
            October 1989 but continued to work on and off through July 
 
            28, 1990.  In another paragraph, she stated that claimant 
 
            returned to work on March 27, 1990, and left after three 
 
            days because her knee was swollen due to having to stay in 
 
            one position for a continued period of time.  She then 
 
            stated that claimant continued to work until April 14, 1990 
 
            (ex. 27, p. 53).  In any event, what is certain is that 
 
            claimant last worked for employer in April 1990.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant contends that she suffered cumulative trauma 
 
            injuries to both upper extremities which became disabling on 
 
            April 19, 1990, when she quit work with employer.
 
            
 
                 The medical evidence reveals that claimant was seen by 
 
            John A. Walck, M.D., on November 1, 1989, for left knee 
 
            pain.  A secondary problem was bilateral hand numbness, more 
 
            on the right than the left.  She related to Dr. Walck that 
 
            she woke up with numbness in her hands and fingers.  She 
 
            indicated that she has had this problem for a couple of 
 
            years and it was getting progressively worse.  Dr. Walck 
 
            noted bilateral positive Tinel's and Phalen's signs.  He 
 
            gave her a wrist splint for the right hand and indicated she 
 
            may return to work on a limited basis (ex. 21, p. 41).
 
            
 
                 Claimant saw Dr. Walck on November 3, 1989, and 
 
            indicated that her right hand had improved.  Nerve 
 
            conduction studies were recommended (ex. 21, p. 42).
 
            
 
                 The next time claimant complained about hand problems 
 
            to Dr. Walck was on December 12, 1990.  She reported 
 
            numbness with activity and pain.  Dr. Walck referred her to 
 
            Kevin Liudahl, M.D., for evaluation (ex. 24, p. 47).
 
            
 
                 Claimant saw Peter D. Wirtz, M.D., on January 16, 1991, 
 
            for examination.  Claimant's complaints were referable to 
 
            left knee pain.  She gave a history of bilateral hand 
 
            numbness prior to the injury on October 27, 1989.  Dr. Wirtz 
 
            felt that claimant's persistent left knee symptoms were 
 
            related to a degenerative condition in the knee area (ex. 
 
            26).
 
            
 
                 Claimant saw Dr. Liudahl on March 19, 1991.  Claimant 
 
            related that in late 1989, while still working for employer, 
 
            she noted the insidious onset of evening and activity 
 
            related numbness in both hands, some decrease in grip 
 
            strength and pain/tingling in the volar radial 3 1/2 
 
            fingertips.  She stated that the pain has persisted and 
 
            intensified with the use of crutches.  An examination of her 
 
            hands revealed a positive Tinel's/Phalen's at bilateral 
 
            carpal tunnels.  She had 50 percent decreased sensation on 
 
            the volar radial 3 1/2 fingertips.  Dr. Liudahl felt that 
 
            she needed a work-up of her carpal tunnel syndrome and he 
 
            recommended bilateral EMG and nerve conduction studies (ex. 
 
            8).
 
            
 
                 On March 29, 1991, Leonel H. Herrera, M.D., performed 
 
            nerve conduction and electromyographic studies to determine 
 
            the etiology of claimant's bilateral hand numbness and 
 
            weakness.  The studies were consistent with bilateral median 
 
            nerve mononeuropathy, right worse than left (ex. 7).
 
            
 
                 On April 16, 1991, Dr. Walck reported that, in his 
 
            opinion, claimant's mononeuropathy was definitely related to 
 
            her work (ex. 24).  On July 31, 1991, Dr. Walck reported 
 
            that, in his opinion, claimant has, "...a history or 
 
            permanent disability relating to knee injuries and carpal 
 
            tunnel."  (ex. 25).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Section 85.64 governs Second Injury Fund liability.  
 
            Before liability of the Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  
 
            
 
                 The Second Injury Fund Act exists to encourage the 
 
            hiring of handicapped persons by making a current employer 
 
            responsible only for the amount of disability related to an 
 
            injury occurring while that employer employed the 
 
            handicapped individual as if the individual had had no 
 
            preexisting disability.  See Anderson v. Second Injury Fund, 
 
            262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' 
 
            Compensation--Law and Practice, section 17-1.
 
            
 
                 Lawyer and Higgs, Iowa Workers' Compensation--Law and 
 
            Practice, (2d ed.) section 17-5, page 171, provides, "There 
 
            must be permanent disability resulting both from the initial 
 
            loss, or loss of use, and from the loss of another such 
 
            member or organ."  
 
            
 
                 There is no requirement that the initial loss or loss 
 
            of use to a hand, arm, foot, leg, or eye be compensable, but 
 
            the second must be.  Lawyer and Higgs, Iowa Workers' 
 
            Compensation--Law and Practice, (2d ed.) section 17-4, page 
 
            171.
 
            
 
                 Addressing the nature and extend of a preexisting 
 
            disability, the Iowa Supreme Court quoted from Kacena v. 
 
            Workmens' Compensation in Tennesse: The Second Injury Fund, 
 
            6 Memphis State U.L. rev. 715, 715-19 (1976), as follows, 
 
            "The source of [a] pre-existing disability is normally of no 
 
            importance but it must [be permanent and must] tend to act 
 
            as a hindrance to the individual's ability to obtain or 
 
            retain effective employment"  Anderson, 262 N.W.2d 789, 791.
 
            
 
                 In this case, claimant has proved a prior loss of use 
 
            to her left knee. 
 
            
 
                 However, claimant has failed to prove a compensable 
 
            second injury that has resulted in any loss, loss of use, or 
 
            permanent disability.  
 
            
 
                 Claimant testified that she last worked for employer in 
 
            April 1990.  She stated that but for her left lower 
 
            extremity problems, she probably would still be employed 
 
            there.  Although claimant reported to Dr. Walck on November 
 
            1, 1989, some numbness in her hands and fingers, this 
 
            problem either abated or was asymptomatic until December 12, 
 
            1990, when her complaints resurfaced.  The medical evidence 
 
            clearly demonstrates that claimant has bilateral carpal 
 
            tunnel syndrome which Dr. Walck relates to her work with 
 
            employer.  However, the evidence is silent as to the extent 
 
            of claimant's disability.  No physician who has examined 
 
            and/or treated claimant has given her a permanent impairment 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            rating or restrictions demonstrating loss or loss of use to 
 
            her upper extremities.  In the absence of this medical 
 
            evidence, the undersigned is reluctant to embellish the 
 
            medical evidence and designate a permanent impairment rating 
 
            or find restrictions where none are articulated by any 
 
            physician.
 
            
 
                 In an agreement for settlement approved by the 
 
            industrial commissioner on April 20, 1992, claimant and 
 
            defendants stipulated that as a result of the work injury of 
 
            April 19, 1990, claimant has an 8 percent permanent partial 
 
            disability as a result of a bilateral upper extremity 
 
            impairment.  The Second Injury Fund of Iowa was not a party 
 
            to the agreement for settlement, and is, therefore, not 
 
            bound by it.  Bevins v. Farmstead Foods, file numbers 
 
            834865, 877458, 881784, & 888705 (App. Dec. 1991).
 
            
 
                 Accordingly, claimant has failed to sustain her burden 
 
            of proof by a preponderance of the evidence that she 
 
            sustained a second injury which resulted in loss or loss of 
 
            use of her upper extremities, or one which has caused 
 
            permanent impairment or disability.  Iowa Code section 
 
            85.64.
 
            
 
                 Since claimant has failed to sustain her burden of 
 
            proof by a preponderance of the evidence, there is no 
 
            liability on the part of the Second Injury Fund of Iowa.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That the Second Injury Fund owes no amount of liability 
 
            to claimant.
 
            
 
                 That the parties shall pay their own costs in this 
 
            matter.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            
 
            Copies to:
 
            
 
            Mr. Roger Carter
 
            Attorney at Law
 
            303 Terra Centre
 
            600 4th st
 
            PO Box 912
 
            Sioux City, IA  51102
 
            
 
            Ms. Judith Ann Higgs
 
            Attorney at Law
 
            701 Pierce St, STE 200
 
            PO Box 3086
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Sioux City, IA  51102
 
            
 
            Ms. Shirley Ann Steffe
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, IA  50319
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                             3202
 
                                             Filed September 3, 1992
 
                                             Jean M. Ingrassia
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            GLENDA J. HAYNES,   
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 976684
 
            PALMER CANDY COMPANY,    
 
                                           A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            AETNA CASUALTY & SURETY, 
 
                      
 
                 Insurance Carrier,  
 
                      
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            3202
 
            Claimant failed to prove a loss or loss of use to a 
 
            designated second injury pursuant to Iowa Code section 
 
            85.64.  
 
            Claimant sustained a work-related injury to her left knee in 
 
            October 1989.  She was off work from October 27, 1989 
 
            through March 26, 1990.  She returned to work in March and 
 
            quit in April 1990 due to left knee problems.
 
            Claimant alleges that she quit work in April 1990 due to 
 
            left knee and cumulative injuries to her upper extremities.  
 
            The medical evidence does not support claimant's contentions 
 
            that she has a permanent disability to her upper 
 
            extremities.  
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LEONA TOUSSAINT,              :
 
                                          :
 
                 Claimant,                :         File Nos. 976686
 
                                          :                   976687
 
            vs.                           :
 
                                          :      A R B I T R A T I O N
 
            ORAL B LABORATORIES, INC.,    :
 
                                          :         D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            CIGNA INSURANCE COMPANY,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant, Leona Toussaint, against her employer, Oral B 
 
            Laboratories, Inc., and its insurance carrier, Insurance 
 
            Company of North America, to recover benefits under the Iowa 
 
            Workers' Compensation Act as the result of injuries 
 
            allegedly sustained on March 17, 1988, and April 26, 1986, 
 
            respectively.  This matter came on for hearing before the 
 
            undersigned deputy industrial commissioner at Cedar Rapids, 
 
            Iowa, on May 19, 1992.  A first report of injury has been 
 
            filed.
 
            
 
                 The record consists of the testimony of claimant, of 
 
            David Toussaint and of Becky Hasler as well as of joint 
 
            exhibits 1 through 21, claimant's exhibit I and defendants' 
 
            exhibits A, B and C.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing assignment order, the 
 
            prehearing report and the oral stipulation of the parties, 
 
            the parties have stipulated to the following:  That claimant 
 
            did receive an injury arising out of and in the course of 
 
            her employment on April 26, 1986, relating to her right hand 
 
            and that that injury caused claimant a period of temporary 
 
            total disability as to the right hand for which claimant has 
 
            been paid 19 weeks of healing period benefits and 19 weeks 
 
            of permanent partial disability benefits at the rate of 
 
            $251.90.  (Nineteen weeks of permanent partial disability 
 
            benefits reflects payment equal to a 10 percent permanent 
 
            partial disability rating of the right hand.)  The parties 
 
            further stipulated that claimant was married and entitled to 
 
            four exemptions and had a gross weekly wage of $408.00 
 
            resulting in a weekly compensation rate of $251.90.
 
            
 
                 Issues remaining to be decided are:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 1.  Whether claimant received an injury to her left 
 
            hand on April 26, 1986, and on March 17, 1988, or on both 
 
            dates;
 
            
 
                 2.  Whether a causal relationship exists between 
 
            claimant's alleged left hand injury or injuries and claimed 
 
            disability;
 
            
 
                 3.  Whether claimant is entitled to additional healing 
 
            period, temporary total or permanency benefits and the 
 
            nature and extent of any such benefit entitlement;
 
            
 
                 4.  Whether any claim related to the left side is 
 
            barred as filed subsequent to the applicable statute of 
 
            limitations under section 85.26(1); and,
 
            
 
                 5.  Whether any claim related to the left side is 
 
            barred as claimant has failed to give proper notice as 
 
            specified in section 85.23.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The deputy, having heard the testimony and considered 
 
            the evidence, finds:
 
            
 
                 Claimant worked for the employer, Oral B Laboratories, 
 
            from 1978 until she left that employment on March 18, 1988.  
 
            While both claimant and her spouse testified that claimant 
 
            left Oral B's employ on account of her alleged hand 
 
            condition, the record reflects that claimant left in order 
 
            to retire and reside with her husband in Mountain View, 
 
            Missouri.
 
            
 
                 Claimant is right-hand dominant.  She worked in a 
 
            variety of jobs at Oral B Laboratories, all of which involve 
 
            some repetitive hand motion.  From the mid-1980s onward, 
 
            jobs at the Oral B plant have been rotated on a daily basis; 
 
            prior to that, they were rotated on a weekly basis.  
 
            Claimant initially complained of symptoms in 1986.  While 
 
            claimant testified that she reported both left and right 
 
            hand symptoms, records of the employer kept in the normal 
 
            course of its business do not reflect complaints of a left 
 
            hand condition.  Medical records in evidence reflect that, 
 
            on claimant's first visit with James B. Worrell, M.D., on 
 
            October 14, 1987, and at subsequent visits, claimant 
 
            complained of symptoms in both hands.  Dr. Worrell reported 
 
            findings of a positive Tinel's sign on the right with slight 
 
            weakness of thumb abduction and loss of sensation over the 
 
            right hand on October 14, 1987.  An initial EMG of October 
 
            1987 was normal as was a subsequent EMG of March 3, 1988.  A 
 
            third EMG of June 30, 1988, revealed a mild right carpal 
 
            tunnel syndrome with sensory conductions below what Dr. 
 
            Worrell considered normal bilaterally.  In his deposition, 
 
            Dr. Worrell reported that he advised a carpal tunnel release 
 
            on the right and did not advise a release on the left since 
 
            claimant's symptoms were predominantly in the right hand and 
 
            her EMG was barely positive on the left.  He also indicated 
 
            he would not assign a permanent partial impairment rating on 
 
            the left given lack of information concerning the left hand 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            and claimant's limited symptoms on that side.
 
            
 
                 Lanny W. Harris, M.D., examined claimant on July 15, 
 
            1988.  The impression was right carpal tunnel syndrome 
 
            related to claimant's work with Oral B Labs.
 
            
 
                 Michael M. Durkee, M.D., performed a right carpal 
 
            tunnel release on March 10, 1989, which, on April 25, 1989, 
 
            he opined was work related.  Dr. Durkee reported that 
 
            claimant continued to complain of numbness in the right 
 
            index and long fingers with night awakening and with pain 
 
            and discomfort as of August 3, 1988.  A subsequent 
 
            electromyelogram of August 22, 1988, per R. F. Neiman, M.D., 
 
            showed no evidence of recurrent carpal tunnel syndrome and 
 
            no evidence of cervical radiculopathy.
 
            
 
                 On June 27, 1990, Dr. Durkee assigned claimant a 10 
 
            percent permanent partial impairment of the right hand based 
 
            on both the Manual for Orthopaedic Surgeons in Evaluating 
 
            Permanent Physical Impairment and on the AMA guides.  Dr. 
 
            Durkee restricted claimant from lifting over 5-10 pounds on 
 
            the right and from repetitious use of the right upper 
 
            extremity.  Dr. Durkee reexamined claimant on March 13, 
 
            1992, at which time he found full extension and full flexion 
 
            on the right without swelling.  Medical records in evidence 
 
            contain no findings related to claimant's left hand other 
 
            than Dr. Worrell's office notations as to complaints in both 
 
            hands and other than the June 30, 1988, EMG report's 
 
            reference to sensory conductions being below normal 
 
            bilaterally.
 
            
 
                 Given the above, it is expressly found that claimant 
 
            has not demonstrated an injury arising out of and in the 
 
            course of her employment related to her left hand.  It is 
 
            further expressly found that claimant has not demonstrated 
 
            any causal relationship between her work and claimed 
 
            disability to the left hand.  It is also expressly found 
 
            that claimant has received full healing period and permanent 
 
            partial disability weekly compensation relative to her 
 
            claimed injury to her right hand.  Given the above findings, 
 
            findings relative to the notice and statute issues are not 
 
            necessary.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 As to whether claimant has established an injury 
 
            arising out of and in the course of her employment:
 
            
 
                 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).
 
            
 
                 As noted above, virtually no substantiation outside of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the bear assertions of claimant and her spouse exists as to 
 
            any injury on the left.  The testimony of claimant and her 
 
            spouse, without more, is insufficient to establish the 
 
            existence of a medical condition significant enough to rise 
 
            to the level of an injury as contemplated in the workers' 
 
            compensation statute.
 
            
 
                 As to the issue of whether claimant has demonstrated a 
 
            causal relationship between the alleged injuries on the left 
 
            and claimed disability on the left:
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 It has already been concluded that claimant has not 
 
            demonstrated an injury or injuries arising out of and in the 
 
            course of her employment relative to her left hand.  
 
            Likewise, neither the medical nor the lay evidence supports 
 
            any finding of causal relationship between claimant's work, 
 
            or work injury, and any disability to the left hand.  
 
            Indeed, but for the minimal references in Dr. Worrell's 
 
            notes and Dr. Worrell's statement in his deposition, no 
 
            evidence as to any left hand condition exists.  Dr. Worrell 
 
            himself noted that the EMG was "barely positive" on the left 
 
            and that limited symptoms on the left precluded assignment 
 
            of a permanent partial impairment rating relative to that 
 
            side.
 
            
 
                 In that claimant has not shown an injury or claimed 
 
            disability on the left, claimant is not entitled to either 
 
            healing period, temporary total or permanent partial 
 
            disability benefits relative to her left hand.  As to the 
 
            question of whether claimant is entitled to additional 
 
            benefits relative to her right hand:
 
            
 
                 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 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 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).
 
            
 
                 Claimant has presented no evidence demonstrating an 
 
            entitlement to either healing period or permanent partial 
 
            disability benefits relative to her right hand greater than 
 
            those benefits already received.  Claimant's current 
 
            complaints on the right are consistent with the complaints 
 
            her physicians recorded from her injury onward.  Her 
 
            restrictions appear to be no greater than those Dr. Durkee 
 
            assigned on June 27, 1990, when he also assigned the 
 
            permanent partial impairment rating of 10 percent of the 
 
            right hand.  Hence, it is concluded that claimant is 
 
            entitled to neither further temporary total disability, 
 
            healing period or permanent partial disability benefits on 
 
            account of her right hand injury.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant take nothing from this proceeding relative to 
 
            any claimed injury to her left hand.
 
            
 
                 Claimant take nothing further from this proceeding 
 
            relative to her right hand injury.
 
            
 
                 Claimant pay costs of this proceeding pursuant to rule 
 
            343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1992.
 
            
 
                 
 
                 
 
            
 
            
 
                                         -------------------------------      
 
                                          HELENJEAN M. WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Robert DeKock
 
            Attorney at Law
 
            227 Mulberry Avenue
 
            Muscatine, Iowa  52761-4127
 
            
 
            Mr. John M. Bickel
 
            Attorney at Law
 
            500 Firstar Bank Building
 
            P.O. Box 2107
 
            Cedar Rapids, Iowa  52406-2107
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                5-1100; 5-1802; 5-1803
 
                                                5-2209; 5-2907
 
                                                Filed July 15, 1992
 
                                                HELENJEAN M. WALLESER
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LEONA TOUSSAINT,    
 
                      
 
                 Claimant,                        File Nos. 976686
 
                                                            976687
 
            vs.       
 
                                               A R B I T R A T I O N
 
            ORAL B LABORATORIES, INC.,    
 
                                                  D E C I S I O N
 
                 Employer, 
 
                      
 
            and       
 
                      
 
            CIGNA INSURANCE COMPANY, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ____________________________________________________________
 
            
 
            5-1100; 5-1802; 5-1803; 5-2209; 5-2907
 
            Evidence did not support claimant's allegation of a left 
 
            hand injury or claimant's allegation of greater healing 
 
            period or permanent partial disability benefits entitlement 
 
            on account of right carpal tunnel injury.
 
            Costs taxed to claimant.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PENNY AUGSBURGER WOLFE,       :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 976690
 
            MASON & HANGER-SILAS MASON    :
 
            CO.,                          :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Penny 
 
            Augsburger Wolfe, claimant, against Mason & Hanger-Silas 
 
            Mason Company, Inc., employer, and Travelers Insurance 
 
            Company, insurance carrier, as well as against the Second 
 
            Injury Fund of Iowa, defendants, to recover benefits under 
 
            the Iowa Workers' Compensation Act as a result of an alleged 
 
            injury sustained on May 18, 1989.  This matter came on for 
 
            hearing before the undersigned deputy industrial 
 
            commissioner on March 17, 1992, in Burlington, Iowa.  The 
 
            record was considered fully submitted at the close of the 
 
            hearing.  The record in this case consists of claimant's 
 
            testimony; claimant's exhibits 1 through 5; and Second 
 
            Injury Fund's exhibits A through H.  
 
            
 
                                      issue
 
            
 
                 The issue to be determined in this case is whether 
 
            claimant's bilateral upper extremity impairment was caused 
 
            by a single accident or two separate injuries and, if so, 
 
            whether she is entitled to Second Injury Fund benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on February 16, 1957, and completed 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the tenth grade of school.  She received her GED certificate 
 
            in 1978.  She commenced working for employer in July 1986.  
 
            Employer, Mason and Hanger-Silas Mason Company, operates the 
 
            Iowa Army Ammunitions Plant (IAAP) in Middletown, Iowa.  
 
            Initially, claimant was assigned to work as a production 
 
            operator.  In this capacity she operated a hoist.  This job 
 
            required constant and repetitive use of the upper 
 
            extremities.  Claimant testified that she suffered an injury 
 
            to her right upper extremity on July 7, 1988, and underwent 
 
            cubital tunnel surgery on October 12, 1988.  After surgery, 
 
            she returned to light duty work.  She alleges that she 
 
            injured her left upper extremity on May 18, 1989, and 
 
            underwent left cubital tunnel release on June 12, 1989.  
 
            
 
                 A review of the pertinent medical evidence of record 
 
            reveals that claimant reported to employer's Field Hospital 
 
            on July 7, 1988, with complaints of pain, numbness and 
 
            tingling in the fingers of her right hand.  She was seen by 
 
            Jesse Saar, M.D., company physician, who prescribed 
 
            Naprosyn, whirlpool and wrist support.  Claimant's symptoms 
 
            persisted and Dr. Saar referred her to Koert R. Smith, M.D., 
 
            for a second opinion (ex. 2).
 
            
 
                 Dr. Smith evaluated claimant on September 15, 1988.  
 
            She presented with complaints of bilateral wrist and hand 
 
            pain, more severe on the right.  Dr. Smith's initial 
 
            assessment was probable bilateral carpal tunnel syndrome, 
 
            right more severe than left, or possible cubital tunnel 
 
            syndrome.  He scheduled claimant for median and ulnar nerve 
 
            conduction studies (ex. 3).
 
            
 
                 Burton Stone, M.D., performed the studies on September 
 
            26, 1988.  The results were consistent with right cubital 
 
            tunnel syndrome (ex. 4).
 
            
 
                 On October 12, 1988, Dr. Smith performed right cubital 
 
            tunnel release.  A follow-up examination on November 21, 
 
            1988, revealed improvement in her right-sided symptoms.  At 
 
            this time, she noted some slight tremor of the interosseous 
 
            muscles on the left nonoperated side.  Dr. Smith released 
 
            claimant to return to work on November 28, 1988 (ex. 3, p. 
 
            2).
 
            
 
                 Claimant continued to see Dr. Smith for follow-up 
 
            evaluations.  On May 18, 1989, she presented with bilateral 
 
            arm pain, worse on the left than the right.  Dr. Smith 
 
            reviewed his notes of claimant's original evaluation in 
 
            September 1988 and noted that at that time she complained of 
 
            bilateral arm pain and numbness.  Because of increasing 
 
            symptoms, Dr. Smith referred her to Dr. Stone to repeat 
 
            median and ulnar nerve conduction studies (ex. 3, p. 3).  
 
            These studies were performed on June 1, 1989.  The findings 
 
            revealed a slowing of the left ulnar nerve through the 
 
            cubital tunnel area (ex. 4, p. 2).
 
            
 
                 On June 6, 1989, Dr. Smith performed left cubital 
 
            tunnel release.  On June 22, 1989, Dr. Smith released 
 
            claimant for limited one-handed duty (ex. 3, p. 4).
 
            
 
                 Dr. Smith saw claimant for a follow-up evaluation on 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            December 4, 1989.  He noted a full range of motion of the 
 
            elbows, forearms and wrists.  There was minimal tenderness 
 
            to percussion over the cubital tunnels, bilaterally.  A 
 
            neurologic examination was intact.  Dr. Smith recommended a 
 
            continuation of permanent light duty.
 
            
 
                 Dr. Smith saw claimant again on August 31, 1990.  
 
            Because of some persistence in symptoms after her June 
 
            surgery, she had repeat median and ulnar conduction studies 
 
            in September of 1989.  Results revealed persistent cubital 
 
            tunnel syndrome, but the medial nerves were intact.  This 
 
            examination revealed minimal diffuse tenderness but no real 
 
            localizing tenderness.  There was full and symmetrical range 
 
            of motion of the shoulders, elbows, forearms, wrists, and 
 
            hands.  A neurologic examination was intact with the 
 
            exception of diffuse tenderness in both hands.  Repeat 
 
            EMG's, median and ulnar nerve conduction studies were 
 
            performed on September 13, 1990.  The results were 
 
            consistent with persistent slowing of both ulnar nerves 
 
            through the cubital tunnel.  Additional laboratory studies 
 
            were recommended (ex. 3, p. 5).
 
            
 
                 Dr. Smith reevaluated claimant on September 27, 1990.  
 
            He noted that all of her laboratory tests were normal.  He 
 
            reported, "I advised her that I think she has a cumulative 
 
            trauma disorder and that she simply will not allow on a 
 
            continual basis repetitive heavy activity."  (Ex. 3, p. 6).
 
            
 
                 On October 19, 1990, Dr. Smith reported that claimant 
 
            continues to have intermittent numbness and weakness with 
 
            repetitive type activities.  It was his opinion that her 
 
            residual symptoms are related to repetitive type of work.  
 
            He further opined that, "[S]he would rate a 10% upper 
 
            extremity impairment on the right side and a 10% upper 
 
            extremity impairment on the left side for her residual 
 
            symptoms of numbness, weakness, and abnormal nerve 
 
            conduction studies."  (Ex. 3, p. 13).
 
            
 
                                conclusions of law
 
            
 
                 The issue to be determined in this case is whether 
 
            claimant sustained two separate injuries, one on July 7, 
 
            1988, and the other on May 18, 1989, or bilateral cubital 
 
            tunnel syndrome resulting from one gradual injury process.  
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury to her right 
 
            upper extremity on July 7, 1988, and a separate injury to 
 
            her left upper extremity on May 18, 1989, which arose out of 
 
            and in the course of her employment.  McDowell v. Town of 
 
            Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman v. 
 
            Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967).  The 
 
            words "arising out of" have been interpreted to refer to the 
 
            cause and origin of the injury.  McClure v. Union County, 
 
            188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto 
 
            Consolidated School District, 68 N.W.2d 63, 65 (Iowa 1955).  
 
            The words "in the course of" refer to the time, place and 
 
            circumstances of the injury.  McClure, 188 N.W.2d at 287; 
 
            Crowe, 68 N.W.2d at 65.  An injury occurs in the course of 
 
            the employment when it is within the period of employment at 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            a place the employee may reasonably be, and while the 
 
            employee is doing work assigned by the employer or something 
 
            incidental to it.  Cedar Rapids Community School District v. 
 
            Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure, 188 N.W.2d 
 
            at 287; Musselman, 154 N.W.2d at 130. 
 
            
 
                 The Supreme Court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the Court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers' Compensation Act, which comes 
 
            about, not through the natural building up and tearing down 
 
            of the human body, but because of a traumatic or other hurt 
 
            or damage to the health or body of an employee.  The injury 
 
            to the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 The Almquist Court further observed that while a 
 
            personal injury does not include an occupational disease 
 
            under the Workers' Compensation Act, yet an injury to the 
 
            health may be a personal injury.  A personal injury includes 
 
            a disease resulting from an injury.  However, the result of 
 
            changes in the human body incident to the general processes 
 
            of nature do not amount to a personal injury.  This is true, 
 
            even though natural change may come about because the life 
 
            has been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 
            body. 
 
            
 
                 The Supreme Court has also recognized that a cumulative 
 
            injury may occur over a period of time.  The injury in such 
 
            cases occurs when, because of pain or physical disability, 
 
            the claimant is compelled to leave work.  McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).  
 
            Moreover, claimant's last employer becomes liable for the 
 
            cumulative injury, even if the incidents that lead to the 
 
            ultimate injury do not occur while a claimant is employed 
 
            with the last employer.  McKeever, 379 N.W.2d at 376; See 
 
            also Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 
 
            434-35 (Iowa 1984).
 
            
 
                 The Fund has raised the issue of occupational disease 
 
            as an affirmative defense in this matter and therefore has 
 
            the burden of proof on the issue of whether cubital tunnel 
 
            syndrome is an occupational disease.  Reddick v. Grand Union 
 
            Tea Co., 296 N.W.2d 800, 803 (Iowa 1941) (Employer has 
 
            burden of proof for affirmative defense in workers' 
 
            compensation case); McMasters v. Hutchins, 120 N.W.2d 509, 
 
            514 (Iowa 1963).  One deputy has recently ruled that the 
 
            Fund is not entitled to raise occupational disease as a 
 
            defense since this would allow someone other than the 
 
            claimant to prosecute a workers' compensation claim in 
 
            violation of Iowa Code section 85.26(4).  Cosper v. The 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Second Injury Fund, File No. 855687 Slip op. (Iowa Ind. 
 
            Comm'r Arb. December 24, 1991).  This position was rejected 
 
            by another deputy who found that the Fund can raise any 
 
            affirmative defense it can muster to protect itself from 
 
            paying benefits.  Olson v. Wilson Foods Corporation, File 
 
            No. 858635 (December 31, 1991).  Since the claimant must 
 
            prove that the threshold requirements of Fund liability have 
 
            been met in order to be compensated, the Fund has the 
 
            corresponding opportunity to show that the threshold 
 
            requirements of Iowa Code section 85.64 (1991) have not been 
 
            met.  If the Fund chooses to contend that claimant has an 
 
            occupational disease, and thereby avoid liability, it can do 
 
            so.  The Fund is not seeking payments of benefits to itself 
 
            on behalf of the claimant and thereby avoids the constraint 
 
            of Iowa Code section 85.26(4).  The Fund is simply defending 
 
            itself in an adversarial setting by putting the claimant to 
 
            his proof.  More to the point, there is no evidence in this 
 
            record that the Fund is attempting to maintain an action on 
 
            behalf of the claimant.  Consequently, if the Fund is 
 
            successful in showing that claimant is suffering from an 
 
            occupational disease, the Fund will have no liability on 
 
            this claim.
 
            
 
                 The evidence in this case clearly demonstrates that 
 
            claimant suffered a cumulative trauma injury that resulted 
 
            in an onset of bilateral wrist and hand pain in September 
 
            1988 which caused her to leave work on October 12, 1988, in 
 
            order to undergo right cubital tunnel release and to leave 
 
            work a second time on June 6, 1989, to undergo left cubital 
 
            tunnel release.
 
            
 
                 The undersigned is persuaded that the factual evidence 
 
            clearly demonstrates that claimant's condition developed 
 
            over the same period of time.
 
            
 
                 Bilateral cubital tunnel syndrome resulting from one 
 
            gradual injury process constitutes the loss of two members 
 
            from one accident and is evaluated on a functional basis 
 
            under Iowa Code section 85.34(2)(s).  Himschoot v. Montezuma 
 
            Manufacturing, File Nos. 672778 and 738235 (App. Decn., 
 
            April 15, 1988), aff'd, No. 89-341 [9-604], (Iowa Ct. App. 
 
            February 22, 1990).  The manifestation of one injury on two 
 
            occasions does not necessarily qualify an injury for Second 
 
            Injury Fund benefits under section 85.64.  McMurrin v. 
 
            Quaker Oats Company, I Iowa Industrial Commissioner Report 
 
            222 (App. Decn., April 28, 1981).
 
            
 
                 Iowa Code section 85.34(2)(s) provides in part:  "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, . . ."
 
            
 
                 Workers' compensation benefits for permanent partial 
 
            disability of two members caused by a single accident is a 
 
            scheduled benefit under Iowa Code section 85.34(2)(s) and 
 
            the degree of impairment caused by a partial loss must be 
 
            computed on the basis of functional, rather than industrial 
 
            disability.  Simbro v. Delong's Sportswear, 332 N.W.2d 886 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            (Iowa 1983).
 
            
 
                 Claimant has shown by a preponderance of the evidence 
 
            that her injury was the cause of permanent disability.  Dr. 
 
            Smith awarded claimant a 10 percent impairment of the right 
 
            arm and a 10 percent impairment of the left arm.  Using the 
 
            AMA Guides to the Evaluation of Permanent Impairment, 10 
 
            percent of the upper extremity converts to 6 percent of the 
 
            whole person.  Placing these two values on a combined values 
 
            chart on the last page of the book produces a combined value 
 
            of 12 percent of the body as a whole.  
 
            
 
                 Therefore, claimant is entitled to 60 weeks of 
 
            permanent partial disability benefits (12 percent times 500) 
 
            at the rate of $241.74 per week, commencing July 5, 1989.
 
            
 
                 Defendant employer has paid claimant all healing period 
 
            and permanent partial disability benefits to which claimant 
 
            is entitled and has no further liability in this case.
 
            
 
                 Since claimant sustained bilateral cubital tunnel 
 
            syndrome as a result of one gradual injury process 
 
            culminating in the loss of two members from one accident, 
 
            she has not shown any entitlement to Second Injury Fund 
 
            benefits on this record.  The manifestation of one injury on 
 
            two occasions does not necessarily qualify as an injury for 
 
            Second Injury Fund benefits under section 85.64.  McMurren 
 
            v. Quaker Oats Co., I Iowa Industrial Commissioner Report 
 
            222 (App. Decn., April 28, 1981).
 
            
 
                 Before the Second Injury Fund is triggered, three 
 
            requirements must be met.  First the employee must have lost 
 
            or lost the use of a hand, arm, foot, leg, or eye.  Second, 
 
            the employee must sustain a loss or loss of use of another 
 
            specified member or organ through a compensable injury.  
 
            Third, permanent disability must exist as to both the 
 
            initial injury and the second injury.  Allen v. Second 
 
            Injury Fund, Thirty-fourth Biennial Report of the Iowa 
 
            Industrial Commissioner 15 (1980); Ross v. Service 
 
            Master-Story Co., Thirty-fourth Biennial Report of the Iowa 
 
            Industrial Commissioner 273 (1979).  The Act exists to 
 
            encourage the hiring of handicapped persons by making the 
 
            current employer responsible only for the amount of 
 
            disability related to an injury occurring under his employ 
 
            as if there were no preexisting disability.  Anderson v. 
 
            Second Injury Fund, 262 N.W.2d 789, 791 (Iowa 1978); Lawyer 
 
            and Higgs, Iowa Workers' Compensation--Law and Practice, (2d 
 
            ed.) section 17-1.
 
            
 
                 The Fund is responsible for the difference between 
 
            total disability and disability for which the employer at 
 
            the time of the second injury is responsible.  Iowa Code 
 
            section 85.64; Second Injury Fund v. Neelans, 436 N.W.2d 335 
 
            (Iowa 1985); Second Injury Fund v. Mich. Coal Co., 274 
 
            N.W.2d 300 (Iowa 1970).
 
            
 
                 Claimant has not established any entitlement to Second 
 
            Injury Fund benefits on this record.
 
            
 
                 This issue is dispositive of the entire case and 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            further analysis is unnecessary.
 
            
 
                                      order 
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Claimant take nothing from this proceeding.
 
            
 
                 The parties shall pay their own costs in this 
 
            proceeding pursuant to rule 343 IAC 4.3.
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Steven J. Crowley
 
            Attorney at Law
 
            P.O. Box 517
 
            Burlington, Iowa  52601
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            Davenport, Iowa  52801-1550
 
            
 
            Mr. Greg Knoploh
 
            Assistant Attorney General
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-3200
 
                                               Filed March 31, 1992
 
                                               JEAN M. INGRASSIA
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PENNY AUGSBURGER WOLFE,       :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 976690
 
            MASON & HANGER-SILAS MASON    :
 
            CO.,                          :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-3200
 
            Claimant alleges an injury to her right upper extremity on 
 
            July 7, 1988, and another injury to her left upper extremity 
 
            on May 18, 1989.  Claimant seeks Second Injury Fund benefits 
 
            as a result of two separate injuries.
 
            A review of the medical evidence indicates that claimant 
 
            experienced bilateral wrist and hand symptoms on September 
 
            15, 1988, as a result of repetitive work activity.  On 
 
            October 12, 1988, she underwent right cubital tunnel release 
 
            and on June 6, 1989, she underwent left cubital tunnel 
 
            release.  It was determined that claimant's bilateral 
 
            cubital tunnel syndrome was the result of one gradual injury 
 
            process culminating in the loss of two members from one 
 
            accident.  Entitlement to Second Injury Fund benefits was 
 
            not established on this record.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1800
 
                                          Filed March 17, 1992
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            NEIL CHRISTENSEN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :      File Nos. 871523
 
            vs.                           :                976696
 
                                          :
 
            PRINCE MANUFACTURING CO.,     :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1800
 
            Claimant sustained a shoulder injury and underwent surgery 
 
            for removal of the distal clavicle and a resection of the AC 
 
            joint.
 
            Claimant was given impairment ratings of 10 percent and 0 
 
            percent.  Restrictions included no lifting of greater than 
 
            50 pounds and no lifting of objects longer than 48 inches.
 
            Claimant's actual earnings were higher after the injury and 
 
            the employer accommodated all of claimant's restrictions.
 
            Awarded 5% industrial disability.
 
            
 
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            CHARLES GODBEY,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 976732
 
            JERRY MCVAY CONSTRUCTION,     :
 
            INC.,                              
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INSURANCE COMPANIES,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Charles 
 
            Godbey against Jerry McVay Construction, Inc., and its 
 
            insurance carrier, CNA Insurance Companies.
 
            
 
                 The case was heard on March 25, 1994, at Cedar Rapids, 
 
            Iowa.  The record consists of the testimony from the 
 
            claimant, Don Schuettpelz (union business manager), Sheena 
 
            McVay, and Jerry McVay; claimant's exhibits 1 through 10; 
 
            and, defendants' exhibits A through F.
 
            
 
                                       ISSUE
 
            
 
                 The parties have submitted the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant is entitled to temporary total, 
 
            healing period or permanent partial disability benefits; 
 
            and,
 
            
 
                 2.  Whether claimant is entitled to certain medical 
 
            benefits pursuant to Iowa Code section 87.27.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            reviewed all the evidence received, finds the following 
 
            facts:
 
            
 
                 Claimant was born on November 26, 1944, and at the time 
 
            of the hearing, was 49 years of age.  He is married with 
 
            seven children and two stepchildren.  Claimant quit high 
 
            school while he was in the tenth grade, but obtained a 
 
            general equivalency diploma while he was in the United 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            States Navy.  He received no formal education or training in 
 
            the Navy, but was assigned as a deck hand.
 
            
 
                 In 1986, claimant took math courses at Hawkeye 
 
            Technical School in Waterloo, Iowa.
 
            
 
                 Throughout the years, claimant has worked as a gas 
 
            station attendant, in a bakery, and in various manufacturing 
 
            plants located in Waterloo, Iowa.
 
            
 
                 In 1969, claimant became an ironworker and joined a 
 
            union, Local 89, in 1974.  His duties as an ironworker 
 
            require him to lift and position iron, reinforce rods, 
 
            carry, place and tie steel rods into foundations and walls, 
 
            set and erect structural iron, and work on handrails, 
 
            stairwells and heavy rigging equipment.  Apparently, 
 
            claimant has an outstanding reputation as a welder.
 
            
 
                 Claimant has enjoyed steady work as an ironworker, even 
 
            in the winter months up until his work-related accident 
 
            which occurred on January 15, 1991 (evidently, there was a 
 
            two year period of unemployment from 1985 to 1987 when 
 
            claimant was off of work for an injured knee).
 
            
 
                 On this date, claimant slipped on some ice and fell, 
 
            injuring his neck.  For the next two weeks, claimant tried 
 
            to continue to work, but was in a great amount of pain.  
 
            Eventually, he sought treatment from a Lisa Royer, D.C.  She 
 
            treated him for several months and diagnosed a C6-7 
 
            subluxation, complex with concurrent acute moderate 
 
            bilateral cerviocobrachial syndrome and tension headache 
 
            resulting from a traumatic sprain/strain whiplash injury.  
 
            She released claimant to return to work on March 25, 1991. 
 
            (Claimant's Exhibit 4)
 
            
 
                 The defendant insurance company then sent claimant to 
 
            the work injury rehabilitation center in Cedar Rapids.  He 
 
            was treated by a Dr. Hart, who treated claimant until 
 
            January of 1992.  Claimant then underwent a disability 
 
            evaluation at the center, administered by Kent Reeves, a 
 
            physical therapist.  His notes are located at claimant's 
 
            exhibit 6, pages 35 through 41, but Mr. Reeves fails to 
 
            offer the actual percentage of functional impairment 
 
            claimant may possess.  Dr. Hart's notes indicate that 
 
            claimant had plateaued at the rehabilitation center and a 
 
            recommended release from employment with a 70 pound lifting 
 
            restriction to the waist level and a 50 pound lifting 
 
            restriction to overhead work was imposed. (Cl. Ex. 6, p. 32)
 
            
 
                 While claimant was also sent to work for strategies, it 
 
            appears that a rehabilitation consultant merely monitored 
 
            his course of treatment and progress. (Cl. Ex. 5)
 
            
 
                 Claimant was also referred to the Mercy Medical Center 
 
            Pain Management Clinic by Dr. Hart.  He continued to 
 
            complain of neck pain and tension headaches.  Records from 
 
            the clinic indicate an MRI of the head yielded negative 
 
            results. (Cl. Ex. 2)
 
            
 
                 Eventually, in February of 1992, Dr. Hart was of the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            opinion that claimant had sustained a 5 percent impairment 
 
            to the lumbosacral spine and a 12 percent impairment to the 
 
            cervical spine.  He stated that 6 percent was due to 
 
            preexisting spondylosis and 6 percent was related to the 
 
            work injury.  (Cl. Ex. 1, p. 2)
 
            
 
                 In June of 1993, claimant was sent to Richard Flint 
 
            Neiman, M.D., for an independent medical examination.  A 
 
            neurological examination revealed that claimant had weakness 
 
            in the upper extremities, which Dr. Neiman attributed to a 
 
            C7 nerve root distribution.  An x-ray of the cervical spine 
 
            indicated that claimant had degenerative arthritis primarily 
 
            at the C4-5 level.  He believed claimant was suffering from 
 
            a left C7 radiculopathy, and in light of the negative MRI 
 
            scans, recommended that additional myelograms and a CT scan 
 
            and EMG study of the neck be performed.  Apparently, these 
 
            tests were administered without prior approval from the 
 
            insurance company.  (Cl. Exs. 3 and 7)
 
            
 
                 Throughout much of 1992 and 1993, claimant has received 
 
            treatment from Ron Schultz, D.C., for treatment to his neck. 
 
            (Cl. Exs. 8 and 10)
 
            
 
                 Dr. Neiman was deposed for the case, and indicated that 
 
            claimant showed signs of a disc bulge at the C4-5 and C5-6 
 
            levels.  He recommended that claimant cease work as an 
 
            ironworker due to the physical nature of the work. (Cl. Ex. 
 
            9)
 
            
 
                 Likewise, Dr. Schultz was deposed for the case, and 
 
            indicated that claimant should not do any work which would 
 
            cause strain or stress on the arms and shoulder muscles, as 
 
            this type of work would irritate the nerves and weaken the 
 
            ligaments causing further injury to the neck.  Additionally, 
 
            he recommended that claimant should not return to his job as 
 
            an ironworker. (Cl. Ex. 10)
 
            
 
                 Don Schuettpelz, business manager for the union, 
 
            indicated that due to claimant's inability to expeditiously 
 
            perform the job duties required of an ironworker, he was 
 
            reluctant to assign claimant to any work.  In fact, since 
 
            the injury, claimant has worked on less than ten 
 
            construction projects.  Apparently, Mr. Schuettpelz has 
 
            heard complaints from workers about claimant's performance 
 
            on the job since the injury.  Claimant has called Mr. 
 
            Schuettpelz on the phone constantly (one to three times per 
 
            week) asking for work, but again Mr. Schuettpelz will not 
 
            assign work because he is concerned about claimant's ability 
 
            to perform the job duties.
 
            
 
                 Jerry McVay, the president of defendant employer, 
 
            indicated that he is not in control of which ironworkers are 
 
            sent to him when he has construction projects.  He has not 
 
            refused to hire claimant, and has not asked that claimant 
 
            work on his jobs, and has not requested that claimant not 
 
            work on any projects for him.
 
            
 
                          ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The first issue to be addressed is whether claimant is 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            entitled to temporary total, healing period benefits, or 
 
            permanent partial disability benefits.
 
            
 
                 The party who would suffer loss if an issue were not 
 
            established has the burden of proving that issue by a 
 
            preponderance of the evidence.  Iowa R. App. P. 14(f).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Dr. Hart, the authorized treating physician in this 
 
            case, indicated that claimant had sustained a 5 percent 
 
            permanent impairment to the low back.  Additionally, he 
 
            assessed that claimant had sustained a 12 percent permanent 
 
            impairment to the cervical spine, but attributed 6 percent 
 
            to a preexisting cervical spondylosis and 6 percent 
 
            impairment related to the work injury in January of 1991.  
 
            Dr. Neiman indicates that claimant has a herniated disc in 
 
            the cervical spine.  Obviously, claimant has sustained some 
 
            permanent impairment and as a result, would be entitled to 
 
            healing period benefits for the time he was off of work and 
 
            under a physician's care.  This time period runs from 
 
            January 31, 1991 through August 25, 1991.  Claimant is 
 
            therefore entitled to healing period benefits for this time 
 
            frame.
 
            
 
                 The next issue then to be determined is claimant's 
 
            industrial disability.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 By far, the most troubling aspect of this case is the 
 
            union's reluctance to place claimant in any job assignments.  
 
            While the undersigned does not believe that the employer 
 
            should be punished for the union's actions, neither should 
 
            the claimant suffer because the union is preventing him from 
 
            working.  While the undersigned believes that the evidence 
 
            supports a finding that claimant has some permanent 
 
            impairment, she is unable to determine exactly what type of 
 
            work restrictions have been placed on claimant.
 
            
 
                 Claimant has not pursued any other line of employment, 
 
            although he has inquired of several positions, such as farm 
 
            help and managing convenience stores.  However, he has not 
 
            been diligent in any type of a job search.  Although the 
 
            undersigned can understand that claimant has for his entire 
 
            life been involved with labor intensive work, the workers' 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            compensation system requires injured workers to take some 
 
            responsibility for accessing alternative employment.
 
            
 
                 Claimant has permanent impairment both to the low back 
 
            and the neck.  These rating, when combined under the 
 
            combined value charts of the AMA Guides To The Evaluation of 
 
            Permanent Impairment total 11 percent impairment to the body 
 
            as a whole.
 
            
 
                 Based on all of the factors enumerated above, it is 
 
            found that claimant has sustained a 25 percent industrial 
 
            disability.
 
            
 
                 Finally, the last issue to be determined is whether 
 
            claimant is entitled to payment of medical expenses incurred 
 
            from Dr. Neiman and Dr. Schultz.
 
            
 
                 Iowa Code section 85.27 provides, in relevant part:
 
            
 
                    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.
 
            
 
                 The undersigned finds that the defendant insurance 
 
            company made it quite clear that Dr. Neiman was only to 
 
            provide an evaluation of claimant's condition.  In fact, 
 
            they specifically told claimant's attorney that they would 
 
            not be paying for any additional testing.  In spite of this, 
 
            claimant scheduled additional tests, and as a result is 
 
            obligated to pay for those tests.
 
            
 
                 Additionally, claimant has undertaken medical treatment 
 
            from Dr. Schultz.  Again, this is unauthorized care and as a 
 
            result claimant is responsible for payment of Dr. Schultz's 
 
            bills.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant healing period 
 
            benefits from January 31, 1991 through August 25, 1991, at 
 
            the workers' compensation rate of four hundred five and 
 
            39/100 dollars (405.39) per week.
 
            
 
                 That defendants shall pay claimant one hundred twenty-
 
            five (125) weeks of permanent partial disability benefits 
 
            commencing August 26, 1991, at the rate of four hundred five 
 
            and 39/100 dollars ($405.39) per week.
 
            
 
                 That accrued benefits shall be paid in a lump sum.
 
            
 
                 That defendants shall pay interest on the award as 
 
            governed by Iowa Code section 85.30.
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 That defendants shall pay the costs of this action.
 
            
 
                 That claimant is responsible for payment of all medical 
 
            bills incurred as the result of unauthorized care.
 
            
 
                 That defendants shall file a claim activity report as 
 
            required by the agency.
 
            
 
                 That defendants shall receive credit on the award for 
 
            benefits previously paid.
 
            
 
                 Signed and filed this ____ day of April, 1994.
 
            
 
            
 
            
 
            
 
                                          
 
                                          ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
                 
 
            Mr Matthew J Petrzelka
 
            Attorney at Law
 
            1200 MNB Bldg
 
            Cedar Rapids IA 52401
 
            
 
            Mr Elliott R McDonald
 
            Attorney at Law
 
            P O Box 2746
 
            Davenport IA 52809