BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            VERLYN GREGERSON,               :
 
                                            :
 
                 Claimant,                  :       File No. 979201
 
                                            :
 
            vs.                             :          A P P E A L
 
                                            :
 
            UNITED STATES GYPSUM CO.,       :        D E C I S I O N
 
                                            :
 
                 Employer,                  :
 
                 Self-Insured,              :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
            
 
                 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.
 
            
 
                                      ISSUES
 
            
 
                 Those portions of the proposed agency decision 
 
            pertaining to issues not raised on appeal are adopted as a 
 
            part of this appeal decision.  The issues raised on appeal 
 
            are:
 
            
 
                 I.  Whether the claimant's right upper extremity 
 
                 disability is causally connected to the 1-21-90 
 
                 tool box incident.
 
            
 
                 II.  What is the extent of the claimant's right 
 
                 upper extremity disability.
 
            
 
                 III.  Whether the claimant is entitled to penalty 
 
                 benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed November 6, 1992 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.
 
            
 
                 Claimant is a 47-year-old who will have worked for 
 
            defendant employer 21 years as of June 1993.  He described 
 
            the nature of the work which basically involved driving a 
 
            rock truck and operating a rock shovel which is like a big 
 
            back hoe that lifts up rocks and loads them onto the trucks 
 
            and the rock is then hauled to a crusher.  Defendant 
 
            employer makes plaster, plaster board and compounds.  
 
            Claimant also at times had other duties such as grading 
 
            roads and loading dynamite, etc., for defendant employer.
 
            
 
                 Claimant described his work days, hours, the nature of 
 

 
            
 
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            his work, and the use of his hands and arms in operating the 
 
            equipment.
 
            
 
                 Claimant testified that on January 21, 1990, when he 
 
            was at defendant employer's project test drilling, he went 
 
            to get some teeth out of the toolbox to use on the drill.  
 
            He indicated he had lifted the lid with his left hand and it 
 
            slipped out of his hand and fell on his right wrist.  He 
 
            described the toolbox as about two feet in length, one foot 
 
            wide, eighteen inches deep and weighing up to 200 pounds.  
 
            He described the pain immediately after the incident as 
 
            feeling as if he had fire in his wrist and he was in a lot 
 
            of pain.  Claimant described the pain that he has in his 
 
            fingers, hands and arms up to his shoulders.
 
            
 
                 Claimant described the medical treatment and the 
 
            doctors he saw.  Claimant testified that he had a carpal 
 
            tunnel surgery on his right hand in 1989 and that he was 
 
            released to go to work and has not had any problems since 
 
            this surgery.
 
            
 
                 Claimant had surgery again on his right hand on March 
 
            26, 1991, at which time he also had a ganglion cyst removed.
 
            
 
                 Claimant indicated the hospital bill has not been paid 
 
            and that he has received no benefits.  Claimant was off work 
 
            March 26, 1991 up to and not including June 3, 1991, as a 
 
            result of this surgery.  Claimant indicated that he took a 
 
            bonus and two weeks vacation during this period as he needed 
 
            money because he was not getting benefits.  He indicated 
 
            that he had been approached by defendant employer and was 
 
            given a scenario on a couple of options, one being that he 
 
            could receive 80 percent from his disability insurance which 
 
            would be based on a non-workers' compensation injury or he 
 
            could go through the workers' compensation procedure.  
 
            Defendant employer did not think his January 21, 1990 
 
            incident was work related and told claimant this before his 
 
            March 26, 1991 surgery.
 
            
 
                 Claimant related that he had a group disability policy 
 
            with his self-insured employer which paid 80 percent of the 
 
            wages.  When asked why he didn't apply for or try to receive 
 
            benefits under this policy, he retorted that he felt this 
 
            injury was work related and therefore would be workers' 
 
            compensation and would not be able to come under the 
 
            disability policy.  Claimant indicated that the defendant 
 
            employer gave him the disability forms to fill out but he 
 
            again emphasized that he could not sign them because he felt 
 
            it was a work-related injury.  Claimant indicated that 
 
            Richard Hundley told him that if claimant would file for the 
 
            disability benefits, he would get benefits faster.  Claimant 
 
            testified that claimant's exhibit 18 is the diagram that was 
 
            made by Mr. Hundley to show the two types of insurance 
 
            benefits; namely, workers' compensation or group insurance.
 
            
 
                 Claimant indicated that exhibit 8 is a list of the 
 
            bills that are unpaid to date.  It was obvious from the 
 
            discussion among attorneys that a $224 anesthesia bill was 
 
            paid and that the claimant had received a check from 
 
            Travelers Insurance, the group administrator, made payable 
 

 
            
 
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            to the anesthesiologist, which claimant forwarded on.  It 
 
            would appear then that the balance of the bills in dispute 
 
            amounts to $2,500.82.  It appears possibly that this exhibit 
 
            8 is not complete and there may be other bills that are 
 
            unpaid which claimant thought should be paid.  If, in fact, 
 
            liability is found, whatever bills are connected to this 
 
            alleged injury should be paid notwithstanding what is 
 
            necessarily set out on claimant's exhibit 8.
 
            
 
                 Claimant related that in April of 1991, he was having 
 
            drainage from his incision on his right hand and the doctor 
 
            wrapped it and said it would heal.  The last time he saw 
 
            Robert Weatherwax, M.D., was on September 24, 1991, at which 
 
            time claimant related the pain he was having but that 
 
            surgery was not indicated.  He related that the doctor 
 
            didn't really examine his hand but said he was just going to 
 
            have pain anyway.  He gave claimant a shot of cortisone.
 
            
 
                 Claimant related that his problems are the same today 
 
            as they were in September 1991 except the pain is getting 
 
            worse.  He said the pain was in his palm and the last three 
 
            fingers and that it goes up into his shoulders and his hand 
 
            goes to sleep at night.  Claimant related that he wears a 
 
            brace at night around his hand and during the day he wears a 
 
            small wrist band that helps him.  Claimant compared the five 
 
            to ten minute exam of Dr. Weatherwax in September 1991 to 
 
            the one and one-half hour exam of  David R. Archer, M.D., in 
 
            1992, where he was sent after an appointment was arranged by 
 
            his attorney.
 
            
 
                 Claimant relates he does have trouble driving a truck 
 
            as his wrist goes to sleep.  He emphasized he doesn't need 
 
            his right hand to drive but does need it to shift gears.  He 
 
            is right handed.  Claimant acknowledged that he has had no 
 
            loss of time from work since his return to work in June of 
 
            1991.
 
            
 
                 Claimant insisted that he told Dr. Archer about his 
 
            pain problems in May of 1992 even though there is nothing 
 
            mentioned in the report.  Claimant further acknowledged that 
 
            he had a ganglion cyst on his right wrist and that he 
 
            related it was work connected as he had never had a cyst or 
 
            any problems before.  He acknowledged that no doctor has 
 
            indicated it was work related.
 
            
 
                 Claimant said it was his decision to see Dr. Weatherwax 
 
            as this doctor had done a right hand carpal tunnel on 
 
            claimant previously in 1989.
 
            
 
                 On cross-examination, claimant was questioned as to 
 
            what appeared to be several inconsistencies in his testimony 
 
            at the hearing and his testimony in a deposition.  Claimant 
 
            seemed to indicate he was having no problems performing his 
 
            job and that he could operate the truck and shovel without 
 
            any problems, the same as before his accident.  Claimant was 
 
            further referred to claimant's exhibit 1, page 7, in which 
 
            the doctor indicated claimant told him that claimant had 
 
            numbness in both upper extremities more on the right side 
 
            for the last two years off and on.  Claimant indicated he 
 
            didn't remember telling the doctor this.  Claimant 
 

 
            
 
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            emphasized he was not having pain in the two years referred 
 
            to by the doctor.
 
            
 
                 Claimant said that he can still do his daily driving 
 
            but it still causes pain.  He believes that he could still 
 
            do this same work in the future.
 
            
 
                 Ruth Ann Gregerson, claimant's wife, testified that 
 
            claimant was not having any problems between his 1989 
 
            surgery and the January 21, 1990 toolbox accident.  She 
 
            indicated claimant is in pain at night and that his right 
 
            hand goes to sleep at night and he has problems putting 
 
            pressure and power to use tools.  She indicated claimant has 
 
            a lot of problems using his right hand and lifting things.
 
            
 
                 Richard A. Hundley is a human resources official with 
 
            defendant employer and also has many other administrative 
 
            jobs within the company.  He was first called as a witness 
 
            by the claimant.  Mr. Hundley indicated the plant is self-
 
            insured both as to workers' compensation and as to health 
 
            and disability group insurance.  Mr. Hundley indicated that 
 
            Travelers Insurance Company is the agent processing any 
 
            disability and that Gallagher & Bassett handle and 
 
            investigate the claims concerning workers' compensation.  
 
            But, in all cases, any payment of claims is on a 
 
            self-insured basis and all of such payment would be out of 
 
            the defendant employer's pocket.
 
            
 
                 Mr. Hundley described the reasons he denied coverage 
 
            both as to disability and as to workers' compensation and 
 
            further acknowledged that he signed claimant's exhibit 16, 
 
            which includes an accident investigation report but was not 
 
            sure who prepared the report.  He did review and participate 
 
            in that exhibit.
 
            
 
                 Mr. Hundley indicated it was a group decision to deny 
 
            claimant's claim.  He named those involved in this decision.  
 
            Mr. Hundley testified as to what he relied upon and the 
 
            information that went into denying the claim.  It appeared 
 
            that he did not have any of these records with him and the 
 
            question came up from claimant's attorney as to answers to 
 
            interrogatories regarding claimant's personnel file.  Mr. 
 
            Hundley indicated that he turned over claimant's personnel 
 
            and workers' compensation file to the attorney but it was 
 
            apparent in the conversation in the courtroom that claimant 
 
            was not given all of the information requested nor was there 
 
            an update of information requested that would aid claimant 
 
            in determining one or more of the issues herein.  Mr. 
 
            Hundley said he answered interrogatories but did not 
 
            thoroughly review them nor did he supplement or update them 
 
            after June 5, 1991.  It appears ***** that there was 
 
            information that would be discoverable or would be the 
 
            subject of updating the interrogatories or request for 
 
            production of documents that was not in fact provided to the 
 
            claimant.
 
            
 
                 Mr. Hundley was asked several questions concerning what 
 
            information he or the defendant employer based their 
 
            decision in denying claimant workers' compensation benefits.  
 
            Mr. Hundley related what he relied upon.  Mr. Hundley also 
 

 
            
 
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            gave a deposition on September 9, 1991, represented by 
 
            claimant's exhibit 20.  In summary, it appears defendant 
 
            employer's position is that the toolbox falling on 
 
            claimant's right wrist did not cause his symptoms and the 
 
            employer believes they reasonably based that on information 
 
            they obtained from James W. Rathke, M.D., Jugal T. Raval, 
 
            M.D., and a Dr. Greenlaw, and that he believes they allude 
 
            to the possibility of other scenarios for illnesses such as 
 
            claimant has (Joint Exhibit 20, page 25, lines 13-18).
 
            
 
                 Mr. Hundley was then called by defendant as its 
 
            witness.  He said there isn't anything in the medical 
 
            records that he knows of which would indicate claimant's 
 
            problems are work related or are not work related.
 
            
 
                 Mr. Hundley indicated that in September 1991 when 
 
            claimant came and said his hand was still bothering him and 
 
            he wanted to see Dr. Weatherwax, the defendant okayed 
 
            claimant to see Dr. Weatherwax but was not certain at that 
 
            time the toolbox incident was what was causing claimant's 
 
            problems.
 
            
 
                 Mr. Hundley again affirmed the fact that whether 
 
            claimant's situation is work related or not, payment of 
 
            claims from either the disability program or the workers' 
 
            compensation program would come directly out of the 
 
            defendant's pocket and not from any insurance company.
 
            
 
                 Mr. Hundley again emphasized that he believed there was 
 
            considerable room for the causation dispute so the company 
 
            decided that claimant's injury was not work related.  Mr. 
 
            Hundley did not explain why it didn't then pay under the 
 
            disability policy for a nonwork-related injury.
 
            
 
                 Claimant's exhibit 1 is medical information on the 
 
            claimant.  From exhibit 1 it would appear that claimant was 
 
            not having any prior problems that would be causing any 
 
            symptoms that developed after the January 21, 1990 incident.  
 
            It appears claimant's first visit to the doctor was February 
 
            21, 1990, which was one month after his toolbox incident.  
 
            Defendant has made an issue of this as to the one month 
 
            interval before claimant sought medical attention for his 
 
            alleged January 21, 1990 injury.  In those February 1990 
 
            records, it shows that claimant had a contusion of the right 
 
            wrist in addition to a ganglion cyst.
 
            
 
                 The Fort Dodge medical records, when claimant's history 
 
            was taken in January of 1991, reflect that claimant related 
 
            he was having numbness in both upper extremities, more so 
 
            the right side the last two years off and on but did 
 
            indicate that since the January 1990 accident, the numbness 
 
            was worse.  At that time, a small ganglion over the volar 
 
            aspect of the right wrist joint towards the radial side was 
 
            discovered (Claimant's Exhibit 1, page 7).  The assessment 
 
            was that it looked like claimant had carpal tunnel syndrome 
 
            bilaterally but the doctor did not rule out ulnar 
 
            mononeuropathy on the right side.  The doctor could not at 
 
            that time answer whether the cyst was due to the toolbox 
 
            injury and could not tell whether claimant's recent problem 
 
            of numbness is due to the toolbox lid injury or not.  He did 
 

 
            
 
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            refer to the fact that claimant had surgery for carpal 
 
            tunnel two years previously.  On that same exhibit, pages 13 
 
            and 15, there are medical reports of Dr. Rathke and Dr. 
 
            Raval, respectively.
 
            
 
                 Claimant's exhibit 2, pages 6 and 7, reflect the notes 
 
            of Dr. Weatherwax.  He attempted conservative treatment and 
 
            concluded that claimant should have surgery which claimant 
 
            did on March 26, 1991, involving a release of a carpal 
 
            tunnel with epineurolysis of the median nerve and excision 
 
            of the volar ganglion.  His impression was that claimant had 
 
            right carpal tunnel syndrome, recurrent, secondary to median 
 
            nerve contusion volar wrist ganglion.  On page 9 and 11 of 
 
            claimant's exhibit 2 there are the notes and report of Dr. 
 
            Weatherwax in which he opined that claimant's injury of 
 
            January 21, 1990, when a toolbox struck claimant's wrist 
 
            causing contusion of the median nerve, did in fact 
 
            eventually result in the surgery of March 26, 1991.  At that 
 
            time, he wanted to wait six months after claimant's surgery 
 
            to determine any permanency as he didn't think there would 
 
            be any but it was too early to tell.  Page 12 of claimant's 
 
            exhibit 2, reflects a September 24, 1991 letter of Dr. 
 
            Weatherwax wherein he felt claimant has a 2 percent upper 
 
            extremity impairment based on the continued pain, tingling, 
 
            dysesthesias in the hand that is likely to continue.  He did 
 
            not think further surgical intervention is likely needed.
 
            
 
                 On September 14, 1992, the deposition of Dr. 
 
            Weatherwax, an orthopedic surgeon, was taken.  The doctor 
 
            related that he did perform a right carpal tunnel release 
 
            and excision of a lesion on the right long finger of 
 
            claimant in March of 1989 and that claimant recovered from 
 
            the same and he had not seen him from April 25, 1989 until 
 
            October 22, 1990, at which time claimant indicated he had 
 
            injured himself in January 1990 when a toolbox lid at work 
 
            struck him in the right hand and wrist and claimant started 
 
            experiencing some numbness and tingling very similar to his 
 
            carpal tunnel symptoms of the previous year.  (Def. Ex. E, 
 
            pp. 7 and 8).  The doctor reflected his conservative 
 
            treatment of claimant resulting from his alleged January 
 
            1990 incident in which claimant complained of continuing 
 
            numbness in the upper extremity.  The doctor testified as to 
 
            his post surgery care of the claimant and indicated that he 
 
            released claimant back to full duty on June 3, 1991, at 
 
            which point he felt there was no evidence of impairment 
 
            (Def. Ex. E, p. 24).  The doctor was asked whether claimant 
 
            reached maximum medical improvement on that date and the 
 
            doctor indicated he usually does not make a conclusion 
 
            concerning maximum medical improvement from surgery until 
 
            about six months after surgery.  The doctor testified he 
 
            then saw claimant on September 24, 1991, which was six 
 
            months post operation and claimant still had a burning pain 
 
            around the base of his thumb and a little tingling if he put 
 
            his wrist into flexion, meaning bending it down towards the 
 
            palm.  It was at this point that he felt claimant had a two 
 
            percent upper impairment and felt any further surgery would 
 
            only likely vascularize the nerve more and not necessarily 
 
            improve it (Def. Ex. E, pp. 25 and 26).  The doctor 
 
            indicated he saw claimant again on April 7, 1992, at which 
 

 
            
 
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            time claimant continued to have symptoms in his right 
 
            dominant hand very comparable to what he had when the doctor 
 
            saw him in September 1991.  The doctor indicated he saw no 
 
            reason though to change his previous permanent partial 
 
            impairment rating of two percent.  The doctor indicated that 
 
            he wasn't sure whether he resolved claimant's symptoms in 
 
            that there was a limit as to what he can do to a nerve that 
 
            has limited capability to regenerate less than any other 
 
            organ tissue in the body (Def. Ex. E, pp. 27-28).  Although 
 
            he seemed to think there was some improvement, he certainly 
 
            did not indicate his hand was as good as it was before 
 
            January 1990 before it was struck with a toolbox lid (Def. 
 
            Ex. E, pp. 27, 28, 29).
 
            
 
                 The doctor opined that claimant's January 1990 work 
 
            injury did not injure claimant's ulnar nerve (Def. Ex. E, p. 
 
            35).  The doctor also indicated his complete disagreement 
 
            with Dr. Archer's impairment rating of 25 percent.  He also 
 
            indicated that Dr. Archer is a family practitioner who could 
 
            perform carpal tunnel but usually does not (Def. Ex. R, p. 
 
            40).
 
            
 
                 The doctor indicated that he used the AMA Guides to the 
 
            Evaluation of Permanent Impairment to come up with his two 
 
            percent permanent impairment but that he would not be 
 
            offended if someone came up with a multiple of two or three 
 
            times his impairment rating and was a qualified examiner as 
 
            there is a great deal of variability that is interpretable 
 
            in that table.  He indicated the Guides do allow for a 
 
            determination of impairment based upon loss of sensation and 
 
            an impairment due to loss of power but in both instances, 
 
            the determination of the extent of that loss is subjective 
 
            in nature (Def. Ex. E, p. 43).
 
            
 
                 The doctor did acknowledge that it would be realistic 
 
            that the surgeon who did the surgery probably rates any 
 
            disability impairment the lowest because it reflects on the 
 
            quality of the doctor's surgery (Def. Ex. E, p. 45).  He 
 
            emphasized that in no way is there a 35 percent impairment.
 
            
 
                 There is no question the doctor feels there can be some 
 
            variability depending on the examiner and the examined.  It 
 
            is also obvious that Dr. Weatherwax did not use the current 
 
            revised third edition of the Guides and that the Guides he 
 
            was looking at are apparently the second edition which did 
 
            not even have the table that would normally be used to 
 
            determine the impairment involved herein.  He then 
 
            acknowledged that the third revised edition of the Guides 
 
            shows that for an entrapment neuropathy the tables are rated 
 
            from 1 to 25 percent.  When Dr. Weatherwax was then asked if 
 
            the tables did not allow the evaluator to interpret under 
 
            the Guides, it appeared he became quite angry and lost his 
 
            cool and kept referring to the 35 percent rating as being a 
 
            travesty of the system and that claimant does not have a 35 
 
            percent impairment rating in his hand (Def. Ex. E, pp. 48-
 
            50).
 
            
 
                 Claimant's exhibit 6 reflects Dr. Archer's report in 
 
            which he opined claimant had a 35 percent upper extremity 
 

 
            
 
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            impairment or a 21 percent whole person impairment based on 
 
            the Guides.  Of course, the doctor's use of the charts to 
 
            arrive at a whole person is not proper.  He did use the AMA 
 
            Guides to the Evaluation of Permanent Impairment, third 
 
            edition revised.  He saw claimant only once and it was 
 
            obvious this June 15, 1992 report was the result of the 
 
            evaluation of claimant on May 19, 1992.  That appointment 
 
            was arranged by claimant's attorney.  Said exhibit at page 6 
 
            shows a September 16, 1992 follow-up letter in which the 
 
            doctor assigned claimant's disability due to entrapment 
 
            neuropathy at 15 percent of the upper extremity for the 
 
            median nerve and 10 percent for the ulnar nerve at the 
 
            wrist, totaling 25 percent impairment of the upper extremity 
 
            for the entrapment neuropathy.  He used table 15 of the AMA 
 
            Guides to the Evaluation of Permanent Impairment, third 
 
            edition revised, for this determination.
 
            
 
                 Claimant's exhibit 16, at pages 7 through 12, reflects 
 
            the employer's accident/illness analysis was prepared 
 
            pursuant to their apparent investigation.  It indicates that 
 
            there was an accident on January 21, 1990, at a location in 
 
            which defendant employer was test drilling on a farm.  It 
 
            reflects a witness in addition to the claimant and shows 
 
            claimant had a hand/wrist injury and a contusion.  The 
 
            report within claimant's personnel record reflects that 
 
            there was, in fact, an injury on January 21, 1990.  Although 
 
            defendant denies an injury, there is no question that an 
 
            injury did arise out of and in the course of claimant's 
 
            employment on January 21, 1990 *****.  Of course, there are 
 
            still remaining issues as to causal connection and 
 
            permanency.
 
            
 
                 The parties are disputing the rate of which any 
 
            benefits would be paid if any are payable.  Claimant's 
 
            exhibit 17 reflects the rate claimant feels is the rate any 
 
            payments should be paid at, namely, $324.98.  Defendant 
 
            contends the rate would be $323.28.  The $1.70 difference 
 
            apparently results from the fact that claimant is working 
 
            some hours in the second shift which pays more per hour than 
 
            the first shift, mainly because of the hours of the day or 
 
            evening involved.  Defendant contends that the rate should 
 
            be based on a first shift which is a lower rate.  It is 
 
            found that claimant is being paid based on the rate that is 
 
            standard for the particular shift and is not considered 
 
            overtime or premium in that it takes into consideration the 
 
            fact that it may be harder for individuals to be willing to 
 
            work at the hours of the second shift versus the more 
 
            convenient first shift hours.  Defendant's exhibit D 
 
            indicates that claimant worked during the week hours in both 
 
            the first and second shift.  Said exhibit also reflects 
 
            overtime hours.  In claimant's exhibit 17, they do not 
 
            reflect overtime hours and the figures reflected by the 
 
            claimant are substantiated by the figures in defendant's 
 
            exhibit D.  It would appear that defendant's argument is 
 
            based on the fact that they thought claimant was 
 
            incorporating overtime hours in their weekly rates but that 
 

 
            
 
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            is not the fact.  It is therefore found that any benefits 
 
            herein would be paid at the weekly rate of $324.98.
 
            
 
                 It has already been found previously that claimant was 
 
            injured on January 21, 1990.  The question as to whether 
 
            claimant incurred any healing period or temporary total 
 
            disability will be decided next.
 
            
 
                 Dr. Weatherwax, on August 5, 1991, opined that 
 
            claimant's January 21, 1990 injury, caused when the toolbox 
 
            lid struck claimant's wrist, eventually resulted in 
 
            claimant's surgery on March 26, 1991.  The parties agree 
 
            that claimant was off work from March 26, 1991 up to and not 
 
            including June 3, 1991, when he was returned to work.  It is 
 
            found that the greater weight of evidence shows claimant 
 
            incurred a work injury on January 21, 1990, and resulted in 
 
            claimant incurring a healing period beginning March 26, 1991 
 
            up to and not including June 3, 1991, involving 10.286 weeks 
 
            payable at the $324.98 rate.
 
            
 
                 Regarding the issue as to whether claimant incurred any 
 
            permanent partial disability, it is found that claimant did 
 
            incur a permanent impairment as a result of his January 21, 
 
            1990 work injury.  There is a difference as to the extent of 
 
            impairment.   Dr. Weatherwax, the orthopedic surgeon who 
 
            performed claimant's surgery, opined a 2 percent.  Dr. 
 
            Archer, who evaluated claimant on one occasion over two 
 
            years after his injury, opined 25 percent on a revised 
 
            opinion issued after he originally opined a total of 35 
 
            percent.
 
            
 
                 Dr. Weatherwax acknowledged that there can be a 
 
            difference in opinion and he would not be offended if 
 
            another doctor came up with a rating two to three times his.  
 
            He also acknowledged that he used the AMA Guides to the 
 
            Evaluation of Permanent Impairment, second edition and not 
 
            the third edition.  It appears the chart that would be used 
 
            for the condition claimant had by using the third revised 
 
            edition did not have in existence the same chart when the 
 
            second edition was issued.  Dr. Weatherwax also indicated 
 
            that since he was a surgeon there would be an inclination to 
 
            be conservative regarding any impairment as that could 
 
            otherwise reflect on whether his surgery was successful or 
 
            not.  It is obvious in this case that claimant had his 
 
            operation in March of 1991 on the same right hand upper 
 
            extremity that he had in 1989, also performed by Dr. 
 
            Weatherwax.  Dr. Weatherwax did not change his opinion when 
 
            his attention was called to the fact that he did use the 
 
            current edition of the Guides and, in fact, Dr. Weatherwax 
 
            got rather angry and upset and lost his cool when cross 
 
            examined.  He seemed to blame the claimant's attorney for 
 
            prolonging the deposition and taking an hour and a half of 
 
            the doctor's time on his cross examination and apparently 
 
            threatened to walk out of the deposition when, in fact, as 
 
            reflected by defendant's exhibit E, the defendant's attorney 
 
            took 38 pages of a deposition and the claimant's attorney 
 
            took 11 pages.
 
            
 
                 *****
 

 
            
 
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                 [When dealing with a scheduled member injury, the 
 
            claimant's disability is determined by the amount of loss of 
 
            use the affected member has suffered as a result of the work 
 
            injury.  The record shows two medical ratings of permanent 
 
            partial impairment of the right upper extremity.  Dr. 
 
            Archer, claimant's family practitioner, has offered a rating 
 
            of 25 percent.  Dr. Weatherwax, the specialist that 
 
            performed the second surgery on claimant's wrist, has given 
 
            a rating of two percent.  Although Dr. Weatherwax 
 
            acknowledged that his rating could perhaps be modified two 
 
            or three fold, he did not change the rating of two percent.  
 
            It was also brought out that Dr. Weatherwax utilized the AMA 
 
            Guides to the Evaluation of Permanent Impairment, second 
 
            edition, whereas Dr. Archer used the Third Edition.  
 
            Although use of the second edition does not make Dr. 
 
            Weatherwax's rating invalid, use of the more recent edition 
 
            caries an assumption that more recent medical knowledge is 
 
            contained in the third edition and ratings under that 
 
            edition may be entitled to more weight.  However, there are 
 
            several factors to be utilized in choosing which impairment 
 
            rating to use, and the edition of the Guides used is only 
 
            one of those factors.  Other factors, such as the particular 
 
            training and experience of the physician, the relation 
 
            between the physician's specialty and the particular injury 
 
            being rated, and the opportunity for contact with and 
 
            observation of the claimant are also factors that need to be 
 
            considered.
 
            
 
                 The record contains only two ratings of impairment.  It 
 
            is not generally appropriate to ignore the ratings in the 
 
            record absent a showing they are somehow invalid.  On rare 
 
            occasions a rating in the record may be rejected because it 
 
            clearly is inaccurate when gauged against other aspects of 
 
            the record, such as inconsistent work restrictions, or 
 
            observations of the claimant that negate the rating.  But 
 
            generally speaking, an award for a scheduled member injury 
 
            must be based on the medical record offered.  This agency is 
 
            often called upon to choose between competing opinions on 
 
            the extent of impairment, by use of the factors referred to 
 
            above.
 
            
 
                 In this case, Dr. Weatherwax is a specialist, whereas 
 
            Dr. Archer is a general practitioner.  Dr. Weatherwax has 
 
            clearly had more opportunity to observe claimant's 
 
            condition, both in terms of the number of visits, and the 
 
            opportunity to make an internal observation during surgery.  
 
            These factors outweigh the fact that Dr. Weatherwax did not 
 
            use the most current edition of the AMA Guides.  The opinion 
 
            of Dr. Weatherwax will be given the greater weight. 
 
            
 
                 The question remains whether Dr. Weatherwax modified 
 
            his opinion.  Although the rating he gave was two percent, 
 
            he agreed that this rating might be a low estimate, and the 
 
            actual impairment might be two or three times higher.  
 
            Defendant in its brief concedes that claimant's impairment 
 
            may be six percent.  It is concluded that claimant's 
 
            impairment as a result of the January 21, 1991 injury is six 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            percent of the right upper extremity.
 
            
 
                 A penalty is justified by the record in this case.  As 
 
            noted above, there is no medical opinion in the record that 
 
            claimant's condition was caused by anything other than the 
 
            work injury.  Defendants seek to justify the delays in 
 
            payment by various acknowledgments by physicians that 
 
            another cause was "possible."  A "possibility" of another 
 
            cause does not justify the unreasonable withholding of 
 
            voluntary benefits where the medical evidence establishes 
 
            causation.  However, the penalty is imposed based on the 
 
            withholding of healing period and permanent partial 
 
            disability benefits only.  The withholding of medical 
 
            benefits is not a part of this penalty award as there is no 
 
            statutory authority for same.]
 
            
 
                 The parties set out 85.27 medical benefits as an issue 
 
            but the issue within that is causal connection.  The parties 
 
            did agree that the other issues were resolved in favor of 
 
            the claimant, namely, causal connection and arising out of, 
 
            and since defendant denied liability, the defendant would be 
 
            responsible for claimant's bills incurred as a result of 
 
            this January 21, 1990 work injury.  It is therefore found 
 
            that the defendant is responsible for payment of claimant's 
 
            medical bills, not only those that have not been paid as 
 
            represented on claimant's exhibit 8, but any bills that are 
 
            outstanding that the parties may have thought have been paid 
 
            or should have been paid as a result of this injury.  It is 
 
            also understood that if claimant has not paid the bills, 
 
            then defendant shall pay the particular part that is owed 
 
            directly to the provider and holds claimant harmless of any 
 
            liability thereon.
 
            
 
                 The final issue is whether there should be penalty 
 
            benefits under 86.13.  Defendant, of course, contends there 
 
            should not be as there are reasonable reasons as to whether 
 
            they are liable.
 
            
 
                 ***** We have here a situation in which the defendant 
 
            employer is self-insured.  Claimant has both workers' 
 
            compensation coverage if, in fact, there is a work injury 
 
            and disability if there is a nonwork injury.  Although the 
 
            employer has different entities as administrative agents to 
 
            handle the respective claims, it is undisputed that any 
 
            amount that would be payable under either workers' 
 
            compensation or disability would be out of the defendant's 
 
            pocket.  We therefore have only two possible sources to help 
 
            claimant get over either a work injury or an illness that 
 
            has caused some temporary or permanent disability.  We do 
 
            not have a third source.  In this instance, the employer 
 
            took the position that it was a nonwork injury and therefore 
 
            there would be no workers' compensation paid.  Yet, because 
 
            the claimant contended that it was workers' compensation, 
 
            they would not pay any workers' compensation benefits.  
 
            Claimant therefore is in a catch 22 position and is without 
 
            any funds.  It is obvious that he would be entitled to one 
 
            or the other.
 
            
 
                 The question arises as to whether the employer is 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            trying to force claimant to choose one source or the other 
 
            over the claimant's objection in order to have food and 
 
            shelter with which he can survive.  It is found that Dr. 
 
            Weatherwax, the orthopedic surgeon, opined on August 5, 
 
            1991, that claimant's surgery of March 26, 1991 was the 
 
            result of claimant's January 21, 1990 work injury.  It is 
 
            further found that defendant was unreasonable in the delay 
 
            in payment of the healing period which has been found to 
 
            amount to 10.286 weeks.  Claimant is entitled to an 
 
            additional five weeks of penalty benefits in regard to the 
 
            delay of the payment of healing period benefits.
 
            
 
                 As to the permanent partial disability benefits, it 
 
            appears from claimant's exhibit 2, page 12, that Dr. 
 
            Weatherwax did not opine a permanency ***** until September 
 
            24, 1991.  It appears that as of that date the defendant 
 
            should have began paying at least two percent or 10 weeks of 
 
            permanent partial disability benefits.  Defendant shall pay 
 
            an additional five weeks as a penalty due to the 
 
            unreasonable delay without reasonable probable cause or 
 
            excuse in the payment of permanent partial disability 
 
            benefits based on the facts of this case.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on January 21, 
 
            1990, which arose out of and in the course of his 
 
            employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 21, 
 
            1990, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    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.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 Section 86.13 permits an award of up to 50 percent of 
 
            the amount of benefits delayed or denied if a delay in 
 
            commencement or termination of benefits occurs without 
 
            reasonable or probable cause or excuse.  The standard for 
 
            evaluating the reasonableness of defendants' delay in 
 
            commencement or termination is whether the claim is fairly 
 
            debatable.  Where a claim is shown to be fairly debatable, 
 
            defendants do not act unreasonably in denying payment.  See 
 
            Stanley v. Wilson Foods Corp., File No. 753405 (App. August 
 
            23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No. 
 
            818849 (App. November 1, 1989).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred an injury to his right upper 
 
            extremity that arose out of and in the course of his 
 
            employment on January 21, 1990, and that said injury caused 
 
            claimant to incur a healing period of 10.286 weeks and 
 
            permanent partial disability of ***** 15 weeks at the weekly 
 
            rate of $324.98.  The healing period will begin March 26, 
 
            1991 up to and not including June 3, 1991.  The permanent 
 
            partial disability benefits will begin September 24, 1991.
 
            
 
                 The rate for any benefits is payable at the rate of 
 
            $324.98 per week.
 
            
 
                 Defendant is responsible for claimant's medical 
 
            expenses which include but are not necessarily limited to 
 
            those on claimant's exhibit 8 that have not been paid.
 
            
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
                 Claimant is entitled to five weeks of penalty benefits 
 
            on claimant's healing period and ***** five weeks of penalty 
 
            benefits for the unreasonable delay without probable cause 
 
            or excuse in payment of claimant's permanent partial 
 
            disability benefits.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay unto claimant healing period 
 
            benefits at the rate of three hundred twenty-four and 98/100 
 
            dollars ($324.98) for the period beginning March 26, 1991, 
 
            up to but not including June 3, 1991, involving ten point 
 
            two eight six (10.286) weeks.
 
            
 
                 That defendant shall reimburse claimant or pay directly 
 
            to the medical provider, if not already paid, claimant's 
 
            medical bills incurred which amount to at least two thousand 
 
            five hundred and 82/100 dollars ($2,500.82) as represented 
 
            by claimant's exhibit 8, as revised.
 
            
 
                 That defendant shall pay unto claimant fifteen (15) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of three hundred twenty-four and 98/100 dollars ($324.98) 
 
            beginning September 24, 1991.
 
            
 
                 That defendant shall pay claimant five (5) weeks of 
 
            penalty benefits based on the unreasonable delay in payment 
 
            of healing period benefits and an additional five (5) weeks 
 
            as a penalty for the unreasonable delay of payment of 
 
            permanent partial disability benefits, all at the rate of 
 
            three hundred twenty-four and 98/100 dollars ($324.98).
 
            
 
                 That defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendant has not 
 
            previously paid any weekly benefits.
 
            
 
                 That defendant shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this matter 
 
            including the transcription of the hearing.  
 
            
 
                 That defendant shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of August, 1993.
 
                                          
 
                                     ________________________________
 
                                            BYRON K. ORTON
 
                                       INDUSTRIAL COMMISISONER
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
                                          
 
            Copies To:
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            801 Carver Bldg
 
            Fort Dodge, IA 50501
 
            
 
            Mr. Stephen Spencer
 
            Mr. Lee P. Hook
 
            Attorney at Law
 
            218 Sixth Ave., Ste 700
 
            P O Box 9130
 
            Des Moines, IA 50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1100; 1108; 1803; 4000.2
 
                                            5-1802; 5-2503
 
                                            Filed August 23, 1993
 
                                            Byron K. Orton
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            VERLYN GREGERSON,               :
 
                                            :
 
                 Claimant,                  :       File No. 979201
 
                                            :
 
            vs.                             :          A P P E A L
 
                                            :
 
            UNITED STATES GYPSUM CO.,       :        D E C I S I O N
 
                                            :
 
                 Employer,                  :
 
                 Self-Insured,              :
 
                 Defendant.                 :
 
            ____________________________________________________________
 
           
 
            1100; 1108; 1803
 
            Found claimant incurred an injury that arose out of and in 
 
            the course of his employment causing a 13 percent permanent 
 
            impairment to claimant's right upper extremity (32.5 weeks).
 
            
 
            5-1802
 
            Claimant awarded 10.286 weeks healing period.
 
            
 
            4000.2
 
            Claimant awarded an additional five weeks healing period as 
 
            an 86.13 penalty and 15 additional weeks of permanent 
 
            partial disability as an 86.13 penalty.
 
            
 
            5-2503
 
            Defendant was ordered to pay claimant's medical.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            VERLYN GREGERSON,             :
 
                                          :       File No. 979201
 
                 Claimant,                :
 
                                          :
 
            vs.                           :     A R B I T R A T I O N
 
                                          :
 
            UNITED STATES GYPSUM CO.,     :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant                :
 
                                          :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on October 7, 1992, at 
 
            Fort Dodge, Iowa.  This is a proceeding in arbitration 
 
            wherein claimant seeks compensation for permanent partial 
 
            disability benefits as a result of an alleged injury which 
 
            occurred on January 21, 1990.  The record in the proceedings 
 
            consists of the testimony of the claimant, claimant's wife, 
 
            and Richard Hundley; and, claimant's exhibits 1 through 20 
 
            and defendants' exhibits A, B, D and E.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged January 21, 1990 injury 
 
            arose out of and in the course of his employment;
 
            
 
                 2.  Whether there is any causal connection as to 
 
            claimant's alleged injury and any temporary and permanent 
 
            disability;
 
            
 
                 3.  The nature and extent of claimant's permanent 
 
            disability, if any;
 
            
 
                 4.  The rate at which benefits would be paid;
 
            
 
                 5.  An 85.27 medical benefits issue, the issue being 
 
            causal connection; and,
 
            
 
                 6.  Whether claimant is entitled to 86.13 penalty 
 
            benefits.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                                FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is a 47-year-old who will have worked for 
 
            defendant employer 21 years as of June 1993.  He described 
 
            the nature of the work which basically involved driving a 
 
            rock truck and operating a rock shovel which is like a big 
 
            back hoe that lifts up rocks and loads them onto the trucks 
 
            and the rock is then hauled to a crusher.  Defendant 
 
            employer makes plaster, plaster board and compounds.  
 
            Claimant also at times had other duties such as grading 
 
            roads and loading dynamite, etc., for defendant employer.
 
            
 
                 Claimant described his work days, hours, the nature of 
 
            his work, and the use of his hands and arms in operating the 
 
            equipment.
 
            
 
                 Claimant testified that on January 21, 1990, when he 
 
            was at defendant employer's project test drilling, he went 
 
            to get some teeth out of the toolbox to use on the drill.  
 
            He indicated he had lifted the lid with his left hand and it 
 
            slipped out of his hand and fell on his right wrist.  He 
 
            described the toolbox as about two feet in length, one foot 
 
            wide, eighteen inches deep and weighing up to 200 pounds.  
 
            He described the pain immediately after the incident as 
 
            feeling as if he had fire in his wrist and he was in a lot 
 
            of pain.  Claimant described the pain that he has in his 
 
            fingers, hands and arms up to his shoulders.
 
            
 
                 Claimant described the medical treatment and the 
 
            doctors he saw.  Claimant testified that he had a carpal 
 
            tunnel surgery on his right hand in 1989 and that he was 
 
            released to go to work and has not had any problems since 
 
            this surgery.
 
            
 
                 Claimant had surgery again on his right hand on March 
 
            26, 1991, at which time he also had a ganglion cyst removed.
 
            
 
                 Claimant indicated the hospital bill has not been paid 
 
            and that he has received no benefits.  Claimant was off work 
 
            March 26, 1991 up to and not including June 3, 1991, as a 
 
            result of this surgery.  Claimant indicated that he took a 
 
            bonus and two weeks vacation during this period as he needed 
 
            money because he was not getting benefits.  He indicated 
 
            that he had been approached by defendant employer and was 
 
            given a scenario on a couple of options, one being that he 
 
            could receive 80 percent from his disability insurance which 
 
            would be based on a non-workers' compensation injury or he 
 
            could go through the workers' compensation procedure.  
 
            Defendant employer did not think his January 21, 1990 
 
            incident was work related and told claimant this before his 
 
            March 26, 1991 surgery.
 
            
 
                 Claimant related that he had a group disability policy 
 
            with his self-insured employer which paid 80 percent of the 
 
            wages.  When asked why he didn't apply for or try to receive 
 
            benefits under this policy, he retorted that he felt this 
 
            injury was work related and therefore would be workers' 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            compensation and would not be able to come under the 
 
            disability policy.  Claimant indicated that the defendant 
 
            employer gave him the disability forms to fill out but he 
 
            again emphasized that he could not sign them because he felt 
 
            it was a work-related injury.  Claimant indicated that 
 
            Richard Hundley told him that if claimant would file for the 
 
            disability benefits, he would get benefits faster.  Claimant 
 
            testified that claimant's exhibit 18 is the diagram that was 
 
            made by Mr. Hundley to show the two types of insurance 
 
            benefits; namely, workers' compensation or group insurance.
 
            
 
                 Claimant indicated that exhibit 8 is a list of the 
 
            bills that are unpaid to date.  It was obvious from the 
 
            discussion among attorneys that a $224 anesthesia bill was 
 
            paid and that the claimant had received a check from 
 
            Travelers Insurance, the group administrator, made payable 
 
            to the anesthesiologist, which claimant forwarded on.  It 
 
            would appear then that the balance of the bills in dispute 
 
            amounts to $2,500.82.  It appears possibly that this exhibit 
 
            8 is not complete and there may be other bills that are 
 
            unpaid which claimant thought should be paid.  If, in fact, 
 
            liability is found, whatever bills are connected to this 
 
            alleged injury should be paid notwithstanding what is 
 
            necessarily set out on claimant's exhibit 8.
 
            
 
                 Claimant related that in April of 1991, he was having 
 
            drainage from his incision on his right hand and the doctor 
 
            wrapped it and said it would heal.  The last time he saw 
 
            Robert Weatherwax, M.D., was on September 24, 1991, at which 
 
            time claimant related the pain he was having but that 
 
            surgery was not indicated.  He related that the doctor 
 
            didn't really examine his hand but said he was just going to 
 
            have pain anyway.  He gave claimant a shot of cortisone.
 
            
 
                 Claimant related that his problems are the same today 
 
            as they were in September 1991 except the pain is getting 
 
            worse.  He said the pain was in his palm and the last three 
 
            fingers and that it goes up into his shoulders and his hand 
 
            goes to sleep at night.  Claimant related that he wears a 
 
            brace at night around his hand and during the day he wears a 
 
            small wrist band that helps him.  Claimant compared the five 
 
            to ten minute exam of Dr. Weatherwax in September 1991 to 
 
            the one and one-half hour exam of  David R. Archer, M.D., in 
 
            1992, where he was sent after an appointment was arranged by 
 
            his attorney.
 
            
 
                 Claimant relates he does have trouble driving a truck 
 
            as his wrist goes to sleep.  He emphasized he doesn't need 
 
            his right hand to drive but does need it to shift gears.  He 
 
            is right handed.  Claimant acknowledged that he has had no 
 
            loss of time from work since his return to work in June of 
 
            1991.
 
            
 
                 Claimant insisted that he told Dr. Archer about his 
 
            pain problems in May of 1992 even though there is nothing 
 
            mentioned in the report.  Claimant further acknowledged that 
 
            he had a ganglion cyst on his right wrist and that he 
 
            related it was work connected as he had never had a cyst or 
 
            any problems before.  He acknowledged that no doctor has 
 
            indicated it was work related.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 Claimant said it was his decision to see Dr. Weatherwax 
 
            as this doctor had done a right hand carpal tunnel on 
 
            claimant previously in 1989.
 
            
 
                 On cross-examination, claimant was questioned as to 
 
            what appeared to be several inconsistencies in his testimony 
 
            at the hearing and his testimony in a deposition.  Claimant 
 
            seemed to indicate he was having no problems performing his 
 
            job and that he could operate the truck and shovel without 
 
            any problems, the same as before his accident.  Claimant was 
 
            further referred to claimant's exhibit 1, page 7, in which 
 
            the doctor indicated claimant told him that claimant had 
 
            numbness in both upper extremities more on the right side 
 
            for the last two years off and on.  Claimant indicated he 
 
            didn't remember telling the doctor this.  Claimant 
 
            emphasized he was not having pain in the two years referred 
 
            to by the doctor.
 
            
 
                 Claimant said that he can still do his daily driving 
 
            but it still causes pain.  He believes that he could still 
 
            do this same work in the future.
 
            
 
                 Ruth Ann Gregerson, claimant's wife, testified that 
 
            claimant was not having any problems between his 1989 
 
            surgery and the January 21, 1990 toolbox accident.  She 
 
            indicated claimant is in pain at night and that his right 
 
            hand goes to sleep at night and he has problems putting 
 
            pressure and power to use tools.  She indicated claimant has 
 
            a lot of problems using his right hand and lifting things.
 
            
 
                 Richard A. Hundley is a human resources official with 
 
            defendant employer and also has many other administrative 
 
            jobs within the company.  He was first called as a witness 
 
            by the claimant.  Mr. Hundley indicated the plant is self-
 
            insured both as to workers' compensation and as to health 
 
            and disability group insurance.  Mr. Hundley indicated that 
 
            Travelers Insurance Company is the agent processing any 
 
            disability and that Gallagher & Bassett handle and 
 
            investigate the claims concerning workers' compensation.  
 
            But, in all cases, any payment of claims is on a 
 
            self-insured basis and all of such payment would be out of 
 
            the defendant employer's pocket.
 
            
 
                 Mr. Hundley described the reasons he denied coverage 
 
            both as to disability and as to workers' compensation and 
 
            further acknowledged that he signed claimant's exhibit 16, 
 
            which includes an accident investigation report but was not 
 
            sure who prepared the report.  He did review and participate 
 
            in that exhibit.
 
            
 
                 Mr. Hundley indicated it was a group decision to deny 
 
            claimant's claim.  He named those involved in this decision.  
 
            Mr. Hundley testified as to what he relied upon and the 
 
            information that went into denying the claim.  It appeared 
 
            that he did not have any of these records with him and the 
 
            question came up from claimant's attorney as to answers to 
 
            interrogatories regarding claimant's personnel file.  Mr. 
 
            Hundley indicated that he turned over claimant's personnel 
 
            and workers' compensation file to the attorney but it was 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            apparent in the conversation in the courtroom that claimant 
 
            was not given all of the information requested nor was there 
 
            an update of information requested that would aid claimant 
 
            in determining one or more of the issues herein.  Mr. 
 
            Hundley said he answered interrogatories but did not 
 
            thoroughly review them nor did he supplement or update them 
 
            after June 5, 1991.  It appears to the undersigned that 
 
            there was information that would be discoverable or would be 
 
            the subject of updating the interrogatories or request for 
 
            production of documents that was not in fact provided to the 
 
            claimant.
 
            
 
                 Mr. Hundley was asked several questions concerning what 
 
            information he or the defendant employer based their 
 
            decision in denying claimant workers' compensation benefits.  
 
            Mr. Hundley related what he relied upon.  Mr. Hundley also 
 
            gave a deposition on September 9, 1991, represented by 
 
            claimant's exhibit 20.  In summary, it appears defendant 
 
            employer's position is that the toolbox falling on 
 
            claimant's right wrist did not cause his symptoms and the 
 
            employer believes they reasonably based that on information 
 
            they obtained from James W. Rathke, M.D., Jugal T. Raval, 
 
            M.D., and a Dr. Greenlaw, and that he believes they allude 
 
            to the possibility of other scenarios for illnesses such as 
 
            claimant has (Joint Exhibit 20, page 25, lines 13-18).
 
            
 
                 Mr. Hundley was then called by defendant as its 
 
            witness.  He said there isn't anything in the medical 
 
            records that he knows of which would indicate claimant's 
 
            problems are work related or are not work related.
 
            
 
                 Mr. Hundley indicated that in September 1991 when 
 
            claimant came and said his hand was still bothering him and 
 
            he wanted to see Dr. Weatherwax, the defendant okayed 
 
            claimant to see Dr. Weatherwax but was not certain at that 
 
            time the toolbox incident was what was causing claimant's 
 
            problems.
 
            
 
                 Mr. Hundley again affirmed the fact that whether 
 
            claimant's situation is work related or not, payment of 
 
            claims from either the disability program or the workers' 
 
            compensation program would come directly out of the 
 
            defendant's pocket and not from any insurance company.
 
            
 
                 Mr. Hundley again emphasized that he believed there was 
 
            considerable room for the causation dispute so the company 
 
            decided that claimant's injury was not work related.  Mr. 
 
            Hundley did not explain why it didn't then pay under the 
 
            disability policy for a nonwork-related injury.
 
            
 
                 Claimant's exhibit 1 is medical information on the 
 
            claimant.  From exhibit 1 it would appear that claimant was 
 
            not having any prior problems that would be causing any 
 
            symptoms that developed after the January 21, 1990 incident.  
 
            It appears claimant's first visit to the doctor was February 
 
            21, 1990, which was one month after his toolbox incident.  
 
            Defendant has made an issue of this as to the one month 
 
            interval before claimant sought medical attention for his 
 
            alleged January 21, 1990 injury.  In those February 1990 
 
            records, it shows that claimant had a contusion of the right 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            wrist in addition to a ganglion cyst.
 
            
 
                 The Fort Dodge medical records, when claimant's history 
 
            was taken in January of 1991, reflect that claimant related 
 
            he was having numbness in both upper extremities, more so 
 
            the right side the last two years off and on but did 
 
            indicate that since the January 1990 accident, the numbness 
 
            was worse.  At that time, a small ganglion over the volar 
 
            aspect of the right wrist joint towards the radial side was 
 
            discovered (Claimant's Exhibit 1, page 7).  The assessment 
 
            was that it looked like claimant had carpal tunnel syndrome 
 
            bilaterally but the doctor did not rule out ulnar 
 
            mononeuropathy on the right side.  The doctor could not at 
 
            that time answer whether the cyst was due to the toolbox 
 
            injury and could not tell whether claimant's recent problem 
 
            of numbness is due to the toolbox lid injury or not.  He did 
 
            refer to the fact that claimant had surgery for carpal 
 
            tunnel two years previously.  On that same exhibit, pages 13 
 
            and 15, there are medical reports of Dr. Rathke and Dr. 
 
            Raval, respectively.
 
            
 
                 Claimant's exhibit 2, pages 6 and 7, reflect the notes 
 
            of Dr. Weatherwax.  He attempted conservative treatment and 
 
            concluded that claimant should have surgery which claimant 
 
            did on March 26, 1991, involving a release of a carpal 
 
            tunnel with epineurolysis of the median nerve and excision 
 
            of the volar ganglion.  His impression was that claimant had 
 
            right carpal tunnel syndrome, recurrent, secondary to median 
 
            nerve contusion volar wrist ganglion.  On page 9 and 11 of 
 
            claimant's exhibit 2 there are the notes and report of Dr. 
 
            Weatherwax in which he opined that claimant's injury of 
 
            January 21, 1990, when a toolbox struck claimant's wrist 
 
            causing contusion of the median nerve, did in fact 
 
            eventually result in the surgery of March 26, 1991.  At that 
 
            time, he wanted to wait six months after claimant's surgery 
 
            to determine any permanency as he didn't think there would 
 
            be any but it was too early to tell.  Page 12 of claimant's 
 
            exhibit 2, reflects a September 24, 1991 letter of Dr. 
 
            Weatherwax wherein he felt claimant has a 2 percent upper 
 
            extremity impairment based on the continued pain, tingling, 
 
            dysesthesias in the hand that is likely to continue.  He did 
 
            not think further surgical intervention is likely needed.
 
            
 
                 On September 14, 1992, the deposition of Dr. 
 
            Weatherwax, an orthopedic surgeon, was taken.  The doctor 
 
            related that he did perform a right carpal tunnel release 
 
            and excision of a lesion on the right long finger of 
 
            claimant in March of 1989 and that claimant recovered from 
 
            the same and he had not seen him from April 25, 1989 until 
 
            October 22, 1990, at which time claimant indicated he had 
 
            injured himself in January 1990 when a toolbox lid at work 
 
            struck him in the right hand and wrist and claimant started 
 
            experiencing some numbness and tingling very similar to his 
 
            carpal tunnel symptoms of the previous year.  (Def. Ex. E, 
 
            pp. 7 and 8).  The doctor reflected his conservative 
 
            treatment of claimant resulting from his alleged January 
 
            1990 incident in which claimant complained of continuing 
 
            numbness in the upper extremity.  The doctor testified as to 
 
            his post surgery care of the claimant and indicated that he 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            released claimant back to full duty on June 3, 1991, at 
 
            which point he felt there was no evidence of impairment 
 
            (Def. Ex. E, p. 24).  The doctor was asked whether claimant 
 
            reached maximum medical improvement on that date and the 
 
            doctor indicated he usually does not make a conclusion 
 
            concerning maximum medical improvement from surgery until 
 
            about six months after surgery.  The doctor testified he 
 
            then saw claimant on September 24, 1991, which was six 
 
            months post operation and claimant still had a burning pain 
 
            around the base of his thumb and a little tingling if he put 
 
            his wrist into flexion, meaning bending it down towards the 
 
            palm.  It was at this point that he felt claimant had a 2 
 
            percent upper impairment and felt any further surgery would 
 
            only likely vascularize the nerve more and not necessarily 
 
            improve it (Def. Ex. E, pp. 25 and 26).  The doctor 
 
            indicated he saw claimant again on April 7, 1992, at which 
 
            time claimant continued to have symptoms in his right 
 
            dominant hand very comparable to what he had when the doctor 
 
            saw him in September 1991.  The doctor indicated he saw no 
 
            reason though to change his previous permanent partial 
 
            impairment rating of 2 percent.  The doctor indicated that 
 
            he wasn't sure whether he resolved claimant's symptoms in 
 
            that there was a limit as to what he can do to a nerve that 
 
            has limited capability to regenerate less than any other 
 
            organ tissue in the body (Def. Ex. E, pp. 27-28).  Although 
 
            he seemed to think there was some improvement, he certainly 
 
            did not indicate his hand was as good as it was before 
 
            January 1990 before it was struck with a toolbox lid (Def. 
 
            Ex. E, pp. 27, 28, 29).
 
            
 
                 The doctor opined that claimant's January 1990 work 
 
            injury did not injure claimant's ulnar nerve (Def. Ex. E, p. 
 
            35).  The doctor also indicated his complete disagreement 
 
            with Dr. Archer's impairment rating of 25 percent.  He also 
 
            indicated that Dr. Archer is a family practitioner who could 
 
            perform carpal tunnel but usually does not (Def. Ex. R, p. 
 
            40).
 
            
 
                 The doctor indicated that he used the AMA Guides to the 
 
            Evaluation of Permanent Impairmentto come up with his 2 
 
            percent permanent impairment but that he would not be 
 
            offended if someone came up with a multiple of two or three 
 
            times his impairment rating and was a qualified examiner as 
 
            there is a great deal of variability that is interpretable 
 
            in that table.  He indicated the Guides do allow for a 
 
            determination of impairment based upon loss of sensation and 
 
            an impairment due to loss of power but in both instances, 
 
            the determination of the extent of that loss is subjective 
 
            in nature (Def. Ex. E, p. 43).
 
            
 
                 The doctor did acknowledge that it would be realistic 
 
            that the surgeon who did the surgery probably rates any 
 
            disability impairment the lowest because it reflects on the 
 
            quality of the doctor's surgery (Def. Ex. E, p. 45).  He 
 
            emphasized that in no way is there a 35 percent impairment.
 
            
 
                 There is no question the doctor feels there can be some 
 
            variability depending on the examiner and the examined.  It 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            is also obvious that Dr. Weatherwax did not use the current 
 
            revised third edition of the Guides and that the Guides he 
 
            was looking at are apparently the second edition which did 
 
            not even have the table that would normally be used to 
 
            determine the impairment involved herein.  He then 
 
            acknowledged that the third revised edition of the Guides 
 
            shows that for an entrapment neuropathy the tables are rated 
 
            from 1 to 25 percent.  When Dr. Weatherwax was then asked if 
 
            the tables did not allow the evaluator to interpret under 
 
            the Guides, it appeared he became quite angry and lost his 
 
            cool and kept referring to the 35 percent rating as being a 
 
            travesty of the system and that claimant does not have a 35 
 
            percent impairment rating in his hand (Def. Ex. E, pp. 48-
 
            50).
 
            
 
                 Claimant's exhibit 6 reflects Dr. Archer's report in 
 
            which he opined claimant had a 35 percent upper extremity 
 
            impairment or a 21 percent whole person impairment based on 
 
            the Guides.  Of course, the doctor's use of the charts to 
 
            arrive at a whole person is not proper.  He did use the AMA 
 
            Guides to the Evaluation of Permanent Impairment, third 
 
            edition revised.  He saw claimant only once and it was 
 
            obvious this June 15, 1992 report was the result of the 
 
            evaluation of claimant on May 19, 1992.  That appointment 
 
            was arranged by claimant's attorney.  Said exhibit at page 6 
 
            shows a September 16, 1992 follow-up letter in which the 
 
            doctor assigned claimant's disability due to entrapment 
 
            neuropathy at 15 percent of the upper extremity for the 
 
            median nerve and 10 percent for the ulnar nerve at the 
 
            wrist, totaling 25 percent impairment of the upper extremity 
 
            for the entrapment neuropathy.  He used table 15 of the AMA 
 
            Guides to the Evaluation of Permanent Impairment, third 
 
            edition revised, for this determination.
 
            
 
                 Claimant's exhibit 16, at pages 7 through 12, reflects 
 
            the employer's accident/illness analysis was prepared 
 
            pursuant to their apparent investigation.  It indicates that 
 
            there was an accident on January 21, 1990, at a location in 
 
            which defendant employer was test drilling on a farm.  It 
 
            reflects a witness in addition to the claimant and shows 
 
            claimant had a hand/wrist injury and a contusion.  The 
 
            report within claimant's personnel record reflects that 
 
            there was, in fact, an injury on January 21, 1990.  Although 
 
            defendant denies an injury, there is no question that an 
 
            injury did arise out of and in the course of claimant's 
 
            employment on January 21, 1990, and the undersigned so 
 
            finds.  Of course, there are still remaining issues as to 
 
            causal connection and permanency.
 
            
 
                 The parties are disputing the rate of which any 
 
            benefits would be paid if any are payable.  Claimant's 
 
            exhibit 17 reflects the rate claimant feels is the rate any 
 
            payments should be paid at, namely, $324.98.  Defendant 
 
            contends the rate would be $323.28.  The $1.70 difference 
 
            apparently results from the fact that claimant is working 
 
            some hours in the second shift which pays more per hour than 
 
            the first shift, mainly because of the hours of the day or 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            evening involved.  Defendant contends that the rate should 
 
            be based on a first shift which is a lower rate.  The 
 
            undersigned finds that claimant is being paid based on the 
 
            rate that is standard for the particular shift and is not 
 
            considered overtime or premium in that it takes into 
 
            consideration the fact that it may be harder for individuals 
 
            to be willing to work at the hours of the second shift 
 
            versus the more convenient first shift hours.  Defendant's 
 
            exhibit D indicates that claimant worked during the week 
 
            hours in both the first and second shift.  Said exhibit also 
 
            reflects overtime hours.  In claimant's exhibit 17, they do 
 
            not reflect overtime hours and the figures reflected by the 
 
            claimant are substantiated by the figures in defendant's 
 
            exhibit D.  It would appear that defendant's argument is 
 
            based on the fact that they thought claimant was 
 
            incorporating overtime hours in their weekly rates but that 
 
            is not the fact.  The undersigned therefore finds any 
 
            benefits herein would be paid at the weekly rate of $324.98.
 
            
 
                 The undersigned has already found previously that 
 
            claimant was injured on January 21, 1990.  The question as 
 
            to whether claimant incurred any healing period or temporary 
 
            total disability will be decided next.
 
            
 
                 Dr. Weatherwax, on August 5, 1991, opined that 
 
            claimant's January 21, 1990 injury, caused when the toolbox 
 
            lid struck claimant's wrist, eventually resulted in 
 
            claimant's surgery on March 26, 1991.  The parties agree 
 
            that claimant was off work from March 26, 1991 up to and not 
 
            including June 3, 1991, when he was returned to work.  The 
 
            undersigned finds that the greater weight of evidence shows 
 
            that claimant incurred a work injury on January 21, 1990, 
 
            and that resulted in claimant incurring a healing period 
 
            beginning March 21, 1991 up to and not including June 3, 
 
            1991, involving 10.286 weeks payable at the $324.98 rate.
 
            
 
                 Regarding the issue as to whether claimant incurred any 
 
            permanent partial disability, the undersigned finds that 
 
            claimant did incur a permanent impairment as a result of his 
 
            January 21, 1990 work injury.  There is a difference as to 
 
            the extent of impairment.   Dr. Weatherwax, the orthopedic 
 
            surgeon who performed claimant's surgery, opined a 2 
 
            percent.  Dr. Archer, who evaluated claimant on one occasion 
 
            over two years after his injury, opined 25 percent on a 
 
            revised opinion issued after he originally opined a total of 
 
            35 percent.
 
            
 
                 Dr. Weatherwax acknowledged that there can be a 
 
            difference in opinion and he would not be offended if 
 
            another doctor came up with a rating two to three times his.  
 
            He also acknowledged that he used the AMA Guides to the 
 
            Evaluation of Permanent Impairment, second edition and not 
 
            the third edition.  It appears the chart that would be used 
 
            for the condition claimant had by using the third revised 
 
            edition did not have in existence the same chart when the 
 
            second edition was issued.  Dr. Weatherwax also indicated 
 
            that since he was a surgeon there would be an inclination to 
 
            be conservative regarding any impairment as that could 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            otherwise reflect on whether his surgery was successful or 
 
            not.  It is obvious in this case that claimant had his 
 
            operation in March of 1991 on the same right hand upper 
 
            extremity that he had in 1989, also performed by Dr. 
 
            Weatherwax.  Dr. Weatherwax did not change his opinion when 
 
            his attention was called to the fact that he did use the 
 
            current edition of the Guides and, in fact, Dr. Weatherwax 
 
            got rather angry and upset and lost his cool when cross 
 
            examined.  He seemed to blame the claimant's attorney for 
 
            prolonging the deposition and taking an hour and a half of 
 
            the doctor's time on his cross examination and apparently 
 
            threatened to walk out of the deposition when, in fact, as 
 
            reflected by defendant's exhibit E, the defendant's attorney 
 
            took 38 pages of a deposition and the claimant's attorney 
 
            took 11 pages.
 
            
 
                 Dr. Archer came up with a final 25 percent permanent 
 
            impairment.  It is obvious to the undersigned that he is 
 
            high.  The undersigned then is stuck with the problem of 
 
            determining what is considered a low conservative figure 
 
            based on the wrong AMA Guides that Dr. Weatherwax refused to 
 
            adjust but admitted that one could double or triple his 
 
            figures versus what the undersigned had found to be an 
 
            excessive evaluation by Dr. Archer.  The undersigned finds 
 
            that claimant has a 13 percent permanent impairment of his 
 
            upper extremity.  Although the records indicate the area of 
 
            claimant's surgery, the parties stipulated that if permanent 
 
            disability is found, it would be based on a scheduled member 
 
            right upper extremity.  Although often the terminology for a 
 
            hand or a wrist is referred to as an upper extremity, it 
 
            appears from the parties' stipulation that the use of the 
 
            upper extremity meant exactly the upper extremity and not 
 
            the hand or wrist.  It also appears that the areas in which 
 
            the claimant was having problems concerning the nerve, etc., 
 
            did, in fact, affect the upper extremity beyond the hand and 
 
            wrist.  The undersigned therefore finds that claimant is 
 
            entitled to 32.5 weeks of permanent partial disability 
 
            benefits at the rate of $324.98.
 
            
 
                 The parties set out 85.27 medical benefits as an issue 
 
            but the issue within that is causal connection.  The parties 
 
            did agree that the other issues were resolved in favor of 
 
            the claimant, namely, causal connection and arising out of, 
 
            and since defendant denied liability, the defendant would be 
 
            responsible for claimant's bills incurred as a result of 
 
            this January 21, 1990 work injury.  The undersigned 
 
            therefore finds that the defendant is responsible for 
 
            payment of claimant's medical bills, not only those that 
 
            have not been paid as represented on claimant's exhibit 8, 
 
            but any bills that are outstanding that the parties may have 
 
            thought have been paid or should have been paid as a result 
 
            of this injury.  It is also understood that if claimant has 
 
            not paid the bills, then defendant shall pay the particular 
 
            part that is owed directly to the provider and holds 
 
            claimant harmless of any liability thereon.
 
            
 
                 The final issue is whether there should be penalty 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            benefits under 86.13.  Defendant, of course, contends there 
 
            should not be as there are reasonable reasons as to whether 
 
            they are liable.
 
            
 
                 The undersigned is disturbed in this case by the 
 
            defendant's actions.  We have here a situation in which the 
 
            defendant employer is self-insured.  Claimant has both 
 
            workers' compensation coverage if, in fact, there is a work 
 
            injury and disability if there is a nonwork injury.  
 
            Although the employer has different entities as 
 
            administrative agents to handle the respective claims, it is 
 
            undisputed that any amount that would be payable under 
 
            either workers' compensation or disability would be out of 
 
            the defendant's pocket.  We therefore have only two possible 
 
            sources to help claimant get over either a work injury or an 
 
            illness that has caused some temporary or permanent 
 
            disability.  We do not have a third source.  In this 
 
            instance, the employer took the position that it was a 
 
            nonwork injury and therefore there would be no workers' 
 
            compensation paid.  Yet, because the claimant contended that 
 
            it was workers' compensation, they would not pay any 
 
            workers' compensation benefits.  Claimant therefore is in a 
 
            catch 22 position and is without any funds.  It is obvious 
 
            to the undersigned that he would be entitled to one or the 
 
            other.
 
            
 
                 The question arises as to whether the employer is 
 
            trying to force claimant to choose one source or the other 
 
            over the claimant's objection in order to have food and 
 
            shelter with which he can survive.  The undersigned finds 
 
            that this is incomprehensible and that the defendant 
 
            employer is in bad faith.  The employer should not escape 
 
            consequences of its bad faith action.  If there was a 
 
            nonwork injury, the undersigned could do nothing about it 
 
            and claimant would have to take his action through another 
 
            source.  The undersigned has found that claimant is entitled 
 
            to workers' compensation benefits.  The undersigned finds 
 
            that Dr. Weatherwax, the orthopedic surgeon, opined on 
 
            August 5, 1991, that claimant's surgery of March 26, 1991 
 
            was the result of claimant's January 21, 1990 work injury.  
 
            The undersigned finds that defendant was unreasonable in the 
 
            delay in payment of the healing period which has been found 
 
            to amount to 10.286 weeks.  The undersigned therefore finds 
 
            that claimant is entitled to an additional five weeks of 
 
            penalty benefits in regard to the delay of the payment of 
 
            healing period benefits.
 
            
 
                 As to the permanent partial disability benefits, it 
 
            appears from claimant's exhibit 2, page 12, that Dr. 
 
            Weatherwax did not opine a permanency of 2 percent until 
 
            September 24, 1991.  It appears to the undersigned that as 
 
            of that date the defendant should have began paying 2 
 
            percent or 10 weeks of permanent partial disability 
 
            benefits.  The undersigned finds that defendant should pay 
 
            an additional 15 weeks as a penalty due to the unreasonable 
 
            delay without reasonable probable cause or excuse in the 
 
            payment of permanent partial disability benefits based on 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            the facts of this case.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on January 21, 
 
            1990, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 21, 
 
            1990, is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
            N.W.2d 128.
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    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 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 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.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 Section 86.13 permits an award of up to 50 percent of 
 
            the amount of benefits delayed or denied if a delay in 
 
            commencement or termination of benefits occurs without 
 
            reasonable or probable cause or excuse.  The standard for 
 
            evaluating the reasonableness of defendants' delay in 
 
            commencement or termination is whether the claim is fairly 
 
            debatable.  Where a claim is shown to be fairly debatable, 
 
            defendants do not act unreasonably in denying payment.  See 
 
            Stanley v. Wilson Foods Corp., File No. 753405 (App. August 
 
            23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No. 
 
            818849 (App. November 1, 1989).
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred an injury to his right upper 
 
            extremity that arose out of and in the course of his 
 
            employment on January 21, 1990, and that said injury caused 
 
            claimant to incur a healing period of 10.286 weeks and 
 
            permanent partial disability of 32.5 weeks at the weekly 
 
            rate of $324.98.   The healing period will begin March 26, 
 
            1991 up to and not including June 3, 1991.  The permanent 
 
            partial disability benefits will begin September 24, 1991.
 
            
 
                 The rate for any benefits is payable at the rate of 
 
            $324.98 per week.
 
            
 
                 Defendant is responsible for claimant's medical 
 
            expenses which include but not are necessarily limited to 
 
            those on claimant's exhibit 8 that have not been paid.
 
            
 
                 Claimant is entitled to five weeks of penalty benefits 
 
            on claimant's healing period and 15 weeks of penalty 
 
            benefits for the unreasonable delay without probable cause 
 
            or excuse in payment of claimant's permanent partial 
 
            disability benefits.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant shall pay unto claimant healing period 
 
            benefits at the rate of three hundred twenty-four and 98/100 
 
            dollars ($324.98) for the period beginning March 26, 1991, 
 
            up to but not including June 3, 1991, involving ten point 
 
            two eight six (10.286) weeks.
 
            
 
                 That defendant shall reimburse claimant or pay directly 
 
            to the medical provider, if not already paid, claimant's 
 
            medical bills incurred which amount to at least two thousand 
 
            five hundred and 82/100 dollars ($2,500.82) as represented 
 
            by claimant's exhibit 8, as revised.
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            
 
                 That defendant shall pay unto claimant thirty-two point 
 
            five (32.5) weeks of permanent partial disability benefits 
 
            at the rate of three hundred twenty-four and 98/100 dollars 
 
            ($324.98) beginning September 24, 1991.
 
            
 
                 That defendant shall pay claimant five (5) weeks of 
 
            penalty benefits based on the unreasonable delay in payment 
 
            of healing period benefits and an additional fifteen (15) 
 
            weeks as a penalty for the unreasonable delay of payment of 
 
            permanent partial disability benefits, all at the rate of 
 
            three hundred twenty-four and 98/100 dollars ($324.98).
 
            
 
                 That defendant shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendant has not 
 
            previously paid any weekly benefits.
 
            
 
                 That defendant shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendant shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr Tito Trevino
 
            Attorney at Law
 
            801 Carver Bldg
 
            Fort Dodge IA 50501
 
            
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            Mr Stephen Spencer
 
            Mr Lee P Hook
 
            Attorney at Law
 
            218 Sixth Ave  Ste 700
 
            P O Box 9130
 
            Des Moines IA 50306-9130
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             1100; 1108; 1803; 4000.2
 
                                             5-1802; 5-2503
 
                                             Filed November 6, 1992
 
                                             Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            VERLYN GREGERSON,             :
 
                                          :       File No. 979201
 
                 Claimant,                :
 
                                          :
 
            vs.                           :     A R B I T R A T I O N
 
                                          :
 
            UNITED STATES GYPSUM CO.,     :        D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant                :
 
                                          :
 
            ___________________________________________________________
 
            
 
            1100; 1108; 1803
 
            Found claimant incurred an injury that arose out of and in 
 
            the course of his employment causing a 13% permanent 
 
            impairment to claimant's right upper extremity (32.5 weeks).
 
            
 
            5-1802
 
            Claimant awarded 10.286 weeks healing period.
 
            
 
            4000.2
 
            Claimant awarded an additional five weeks healing period as 
 
            an 86.13 penalty and 15 additional weeks of permanent 
 
            partial disability as an 86.13 penalty.
 
            
 
            5-2503
 
            Defendant was ordered to pay claimant's medical.