BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         RICHARD J. EISENBACHER,    
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                               File No. 979203
 
         UNITED PARCEL SERVICE,     
 
                                                 A P P E A L
 
              Employer,   
 
                                               D E C I S I O N
 
         and         
 
                     
 
         LIBERTY MUTUAL INSURANCE CO.,   
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
          I.  Whether the deputy erred in ruling evidence concerning 
 
         alleged unlawful grounds for claimant's discharge was not 
 
         relevant and therefore inadmissable [sic].
 
         II.  Whether the deputy erred in concluding claimant is not 
 
         entitled to weekly compensation benefits for his industrial 
 
         disability caused by his work injuries.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed February 9, 1993 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.
 
         
 
              Richard J. Eisenbacher is a 52-year-old man who quit school 
 
         during the eleventh grade but subsequently obtained a GED.  He 
 
         was not particularly good at academic pursuits.  Much of his work 
 
         history has been involved with vehicle mechanics.  He has also 
 
         worked in other fields.  He repaired milking machines, worked at 
 
         a lumber yard and operated a gas station.  
 
         
 
              Richard commenced employment with United Parcel Service in 
 
         1979.  He worked as a line mechanic at the Spencer, Iowa, 
 
         terminal.  As shown in exhibit 2, his work required bending, 
 
         stooping, pushing, and pulling.  On occasion he would be required 
 
         to lift as much as 100 pounds.  Richard was able to perform as a 
 
         line mechanic and his pay advanced to as much as $10.67 per hour.  
 
         While working as a line mechanic Richard began dating Kathy 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         Grady, who worked in the UPS office at Spencer.
 
         
 
              In 1982 Richard suffered a heart attack.  He was off work 
 
         approximately four months and returned with restrictions.  The 
 
         heart attack and restrictions did not impair his work 
 
         performance.  As recently as 1990 he underwent an angiogram.  
 
         Richard does not feel that his heart condition limits him today.  
 
         
 
              In October 1987 Richard was promoted to a supervisory 
 
         position.  UPS has a policy which prohibits supervisory employees 
 
         from dating nonsupervisory employees.  Richard did not want to 
 
         quit dating Kathy.  He did not want to move to Des Moines.  He 
 
         had been dating Kathy since 1979 and that fact was known when he 
 
         was promoted into the supervisory position.  It had not been any 
 
         particular problem with his employer until early 1990 after the 
 
         injury in this case had been reported.  Richard was then given a 
 
         choice of being fired or resigning.  He elected to resign.  His 
 
         resignation was not voluntary since he did not have the option of 
 
         staying with the company.  The fact that he received unemployment 
 
         benefits, despite the employer's protest, is further evidence 
 
         that his resignation was not voluntary since a voluntary 
 
         resignation would have made him ineligible for unemployment.  
 
         Following his resignation Richard returned to the Spencer area 
 
         where he now resides with Kathy.
 
         
 
              Richard worked as a press operator for several months 
 
         earning approximately $6 per hour.  He has performed odd jobs and 
 
         continues to do so.  His odd jobs provide him with an income in 
 
         the range of $200 to $250 monthly.  He also receives 
 
         approximately $135 per month from an installment sales contract 
 
         of a property he owned in the Spencer area.  Kathy Grady helps 
 
         support him.
 
         
 
              Richard feels that he is unable to perform work as a regular 
 
         mechanic.  He complains of pain and numbness affecting his left 
 
         hand and arm.  He complains of problems with his low back.  
 
         
 
              Immediately following the injury Richard sought chiropractic 
 
         treatment at Sherwood Forest Chiropractic Clinic.  He was seen a 
 
         total of 13 times during the months of November 1989 through 
 
         March 1990.  The records of his initial visit, exhibits 9 and 15, 
 
         show his complaints to include his left thigh and leg, low back, 
 
         neck, headaches, sinus pressure, and numbness in his left arm.  
 
         It appears as though the thigh and leg ache complaints had their 
 
         origin two to three years previously but that the low back, neck, 
 
         headache, sinus pressure, and left arm numbness came on from 
 
         jumping off tractors at UPS.  Interestingly, a later record, 
 
         exhibit 16 which is dated January 30, 1990, indicates that 
 
         Richard did not know how his headaches, neck pain and left arm 
 
         numbness came about (exhibit 16).  It is noted that in that 
 
         history no mention is made of back problems. 
 
         
 
              Richard was also treated at the Mercy Occupational Medicine 
 
         Clinic.  On December 6, 1989, the history shown in the records is 
 
         that he stepped out of a package car onto an object on the floor 
 
         and twisted his back.  Subsequent records of December 29, 1989, 
 
         indicate that he continued to have low back and left hip problems 
 
         but that he was working his regular job without any difficulty.  
 
         Chiropractic care was authorized.  Diagnostic tests which were 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         conducted showed degeneration and conditions of long-standing 
 
         origin but did not objectively show any recent, acute trauma  
 
         (ex. 18).  
 
         
 
              In early 1990 Richard took two separate two-week vacations.  
 
         While in Spencer he treated with Rex Jones, D.C., for headaches, 
 
         left neck pain and left arm pain.  The history given was that he 
 
         had slipped and twisted his back.  The records show very little 
 
         in way of care for his back (exs. 19, 20).
 
         
 
              Other than for the time Richard took vacation in early 1990, 
 
         he continued to work from the day of injury through the day that 
 
         his employment with UPS ended.  He has not received further 
 
         treatment since being seen by Dr. Jones.  He has not sought 
 
         further care through his employer.  
 
         
 
              Richard has been evaluated by three physicians for purposes 
 
         of litigation.  The first was Daniel J. McGuire, M.D., an 
 
         orthopedic surgeon.  In a report dated December 5, 1991, Dr. 
 
         McGuire related that he could not find much in the way of 
 
         objective problems in Richard's low back.  He felt that as far as 
 
         the low back condition was concerned, there was no ratable 
 
         impairment and no permanent activity restrictions should be 
 
         imposed.  Dr. McGuire noted that Richard did have a problem with 
 
         his neck, left shoulder and left upper extremity but he stated 
 
         that those problems were difficult to relate to the low back 
 
         problem.  It is noted that the history in the report does not 
 
         include Richard catching himself with his left hand when he fell.  
 
         In the report the physical examination notes show that Richard 
 
         had decreased sensation in the left C-8 nerve distribution and 
 
         also in the left L5-S1 nerve distribution.  Dr. McGuire felt that 
 
         the November 28, 1989 incident was a relatively minor event from 
 
         which Richard would have completely recovered in 6 to 12 months.  
 
         
 
              Richard was next evaluated by Pat Luse, D.C.  The history 
 
         relied upon by Dr. Luse is incorrect to the extent that it showed 
 
         that Richard had not returned to work since the accident.  Dr. 
 
         Luse found Richard to have sensory impairment which warranted a 3 
 
         percent impairment rating of the left upper extremity and reduced 
 
         range of motion regarding his back which warranted a 9 percent 
 
         impairment rating.  Dr. Luse indicated that the combination of 
 
         those two impairments rounded to 15 percent.  It is noted that 3 
 
         percent of any extremity is equivalent to approximately a 1 1/2 
 
         percent impairment of the whole person.  When 1 1/2 percent is 
 
         combined with 9 percent and rounded, it rounds to 10 percent 
 
         rather than 15 percent.  Dr. Luse recognized that Richard had 
 
         preexisting problems and reported that 50 percent of the total 
 
         impairment was due to the November 28, 1989 injury.  Dr. Luse 
 
         felt that claimant would have recurrent problems.  He recommended 
 
         physical capacity limitations of 20 pounds for lifting, carrying, 
 
         pushing, and pulling.  He felt that a 10-pound limit should be 
 
         applied to repetitive lifting (ex. 21).  
 
         
 
              Richard was also evaluated by Jay J. Parsow, M.D., a 
 
         specialist in physical medicine.  Dr. Parsow formed the 
 
         impression that the fall of November 28, 1989, was responsible 
 
         for aggravating preexisting neck and back pain and also for 
 
         producing radicular symptoms in Richard's left arm and leg.  Dr. 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         Parsow noted that the prognosis was guarded but that it could be 
 
         improved with treatment.  Dr. Parsow agreed that Richard should 
 
         be restricted to light work as recommended by Dr. Luse.  Dr. 
 
         Parsow felt that Richard had an 18 percent permanent impairment 
 
         which was directly related to the November 28, 1989 injury.  
 
         
 
              Richard has incurred expenses with his various medical 
 
         providers.  In the prehearing report it was stipulated that the 
 
         providers of these services would testify that the fees were 
 
         reasonable.  No contrary evidence is in the record.  
 
         
 
              He incurred charges of $510 with Dr. Luse.  Of that amount, 
 
         $350 was charged for the examination and $160 was charged for 
 
         x-rays.  It is noted that it had been a considerable amount of 
 
         time since x-rays had been taken and it is therefore deemed 
 
         reasonable for additional x-rays to have been taken by Dr. Luse.  
 
         The examination by Dr. Luse was an examination conducted for 
 
         purposes of litigation in order to obtain a rating of impairment 
 
         after the impairment had been rated by Dr. McGuire, the physician 
 
         selected by the employer (ex. 37).
 
         
 
              According to exhibit 38 Richard incurred charges at the 
 
         Mercy Hospital Medical Center in the total amount of $944.  Those 
 
         charges were incurred during the month of January 1990 and appear 
 
         to coincide with the treatment provided by David Berg, M.D., the 
 
         employer's physician.
 
         
 
              Exhibit 39 shows charges from Dr. Jones in the amount of 
 
         $48.20.  Chiropractic care was authorized by Dr. Berg.
 
         
 
              Exhibit 41 is additional charge sheets from the Mercy-Iowa 
 
         Occupational Medicine Clinic.  The charges total $172.  They were 
 
         incurred in December 1989 and March 1990.  These charges are 
 
         consistent with the treatment provided by Dr. Berg.
 
         
 
              Exhibit 43 shows charges from Robert VerDoorn, D.C., of the 
 
         Sherwood Forest Chiropractic Clinic.  Charges were incurred 
 
         commencing November 29, 1989 and running through March 9, 1990.  
 
         Chiropractic treatment had been authorized by Dr. Berg.  The 
 
         charges total $340.  
 
         
 
              It is found that all the medical expenses contained in 
 
         exhibits 38, 39, 41, and 42 were incurred in obtaining reasonable 
 
         treatment for the injuries Richard sustained on November 29, 
 
         1989.  The charges shown on exhibit 37 were incurred in obtaining 
 
         an independent medical examination.  All of the treatment appears 
 
         to have been reasonably suited to the injury which Richard 
 
         sustained.  All the treatment appears to have been clearly 
 
         authorized by the employer.  
 
         
 
              The assessments of the medical providers in this case are 
 
         somewhat divergent.  As indicated by Dr. McGuire, the problems 
 
         affecting Richard's neck, left shoulder and left upper extremity 
 
         do not have their origin or basis in his low back.  They have 
 
         their origin in catching himself when he fell.  This makes those 
 
         problems as much a result of the injury as if they were somehow 
 
         caused by some abnormality in his low back.  The injurious event 
 
         which was described at hearing is one which would appear to have 
 
         a potential for producing an injury in the cervical spine and 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         left upper extremity as well as injury to the low back.  The real 
 
         question is whether or not they did in fact cause those injuries.  
 
         The claim is well corroborated by the fact that Richard began 
 
         seeking treatment immediately after the injurious event and 
 
         continued to seek treatment into early March of 1990.  Initial 
 
         patient history discussion (ex. 15) is not particularly 
 
         illustrative one way or the other.  It is recognized that 
 
         physicians often do not obtain accurate, complete, detailed 
 
         histories of all the preceding events.  They often fail to ask 
 
         the patient whether whatever they have written for the history is 
 
         complete and accurate.  The history subsequently entered in 
 
         exhibit 16 is quite corroborative of the claim.  
 
         
 
              The history entered on December 6, 1989, in exhibit 18 with 
 
         Dr. Berg, is also corroborative of the claim.  Litigation was 
 
         ongoing and the subsequent medical histories given to the three 
 
         examining physicians are all somewhat suspect as are the 
 
         interpretations made by each particular physician as it appears 
 
         in their reports.  
 
         
 
              The case is perplexing in the sense that Richard Eisenbacher 
 
         has a very commendable work history.  He has had a number of 
 
         employers but has generally been regularly employed.  He was 
 
         apparently sufficiently productive with UPS to be promoted into a 
 
         management position.  His performance as a supervisor was 
 
         apparently adequate.  Based upon all the known information about 
 
         Richard Eisenbacher it would be totally out of character for him 
 
         to feign an injury or disability.
 
         
 
              On the other hand, the record in this case shows that 
 
         Richard had preexisting problems.  Doctors Luse and Parsow concur 
 
         in finding preexisting problems.  The loss of sensation noted in 
 
         Dr. McGuire's report is really the only objective evidence of a 
 
         significant medical problem, other than for the preexisting 
 
         problems.  Richard has not sought further treatment, not even 
 
         chiropractic care for his problems.  He was able to work in a 
 
         factory setting.  These things all seem to indicate that the 
 
         November 28, 1989 injury did not produce any substantial 
 
         permanent problems for Richard. 
 
         
 
              The sequence of events in this case is sufficient to make 
 
         one suspect that Richard's report of injury and seeking of 
 
         medical care may have induced his supervisors to use his 
 
         relationship with Kathy Grady as a sham excuse for terminating 
 
         his employment.  On the other hand, there is no direct evidence 
 
         that any such occurrence actually happened.  Further, as seen in 
 
         other cases, a number of other UPS employees have pursued 
 
         workers' compensation claims, even into litigation, without loss 
 
         of employment.  Nevertheless, it is difficult to believe that the 
 
         Kathy Grady relationship, which had existed with the knowledge of 
 
         Richard's supervisors since prior to his appointment into a 
 
         managerial position, was really, in fact, the motivating factor 
 
         for forcing Richard to choose between the relationship, 
 
         resignation or firing.  Richard did not supervise Kathy, did not 
 
         work in the same city as Kathy or hold a position in which there 
 
         was any reasonable likelihood that he would ever be in a 
 
         supervisory position over her.  It is difficult to understand why 
 
         UPS would choose to have or enforce a rule such as the one relied 
 
         upon when forcing Richard to make the choices which resulted in 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         his resignation.*****
 
         
 
              Richard obtained his supervisory position by moving to the 
 
         Des Moines, Iowa area.  Following the end of his employment 
 
         relationship with UPS, he returned to northwest Iowa.  It is well 
 
         known that managerial and supervisory positions exist in far 
 
         greater numbers in the Des Moines, Iowa area than in the Spencer, 
 
         Iowa area.  Richard's success at obtaining re-employment has been 
 
         quite dismal.  He has experienced a profound reduction in actual 
 
         earnings.  It is quite possible, however, that even if Richard 
 
         had not been injured, his attempts to resume employment would be 
 
         a little different from what has actually occurred.  The one 
 
         thing that is different, however, is that prior to his move to 
 
         Des Moines to become a supervisor his principal occupation had 
 
         been that of a mechanic.  The restrictions recommended by Doctors 
 
         Luse and Parsow effectively prohibit him from performing work as 
 
         a mechanic.  He most likely does have the level of knowledge and 
 
         expertise which is necessary to be a mechanic but his physical 
 
         capacity is limited.  While he can in all likelihood perform some 
 
         functions of a mechanic if allowed to work at his own pace, 
 
         employment as a mechanic requires the ability to perform those 
 
         functions at a commercially productive pace.  It is that capacity 
 
         to perform at a commercially productive rate that Richard has 
 
         apparently lost.  
 
         
 
         It is difficult to determine whether Richard's loss of ability to 
 
         perform as a productive mechanic is in any manner affected by the 
 
         events of November 28, 1989.  He continued to work as a 
 
         supervisor for nearly five months following the injury.  It is 
 
         recognized that one of those five months was taken as vacation.  
 
         He has not sought further medical care since leaving his 
 
         employment with UPS.  He has not taken any action to compel the 
 
         employer to provide any type of further care for his condition.  
 
         These are very strong indications that the injury did not produce 
 
         any significant degree of disability.  
 
         
 
              It is therefore found that the record in this case does not 
 
         show it to be probable that the event of November 28, 1989, 
 
         produced any significant permanent disability which affects 
 
         Richard Eisenbacher.  His loss of earnings is highly related to 
 
         his decision to leave the Des Moines, Iowa area and move to the 
 
         Spencer area.  His loss of ability to work as a productive 
 
         mechanic is as likely related to the previously existing 
 
         degenerative condition as to any injury.  
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed February 9, 1993 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.  Segments designated by brackets ([ ]) indicate 
 
         language that is in addition to the language of the proposed 
 
         agency decision.
 
         
 
              The party who would suffer loss if an issue were not 
 
         established has the burden of proving that issue by a 
 
         preponderance of the evidence.  Iowa R. of App. P. 14(f).
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
              The record in this case is clearly sufficient to show that 
 
         it is possible that the events of November 28, 1989, in some way 
 
         might have permanently damaged Richard's low back or neck and 
 
         left upper extremity.  The record does not, however, show that to 
 
         be probable or more likely than not.  The fact that Richard was 
 
         able to continue performing his work until the employment was 
 
         terminated and the fact that he has not sought further care for 
 
         his condition is a strong indication that the physical disability 
 
         which has been identified did not result from the incidents of 
 
         November 28, 1989.*****While he was injured and received 
 
         appropriate care, his disability had apparently resolved by the 
 
         time the employment terminated in late April of 1990.  Defendants 
 
         are responsible for paying the costs of medical treatment and 
 
         also for the costs of the independent medical examination.*****
 
         
 
              Defendants have admitted the injury.  Following the injury 
 
         they directed the care and treatment through their company 
 
         physician, Dr. Berg.  It is unclear why they have not paid the 
 
         medical expenses which were incurred under their direction and 
 
         express authorization.  Defendants are therefore responsible for 
 
         payment of the expenses shown in exhibits 38, 39, 41, and 42 as 
 
         follows:
 
         
 
              Mercy Hospital Medical Center                $ 944.00
 
              Chiropractic Arts Clinic, P.C.                  48.20
 
              Mercy-Iowa Occupational Medicine Clinic        172.00
 
              Sherwood Forest Chiropractic Clinic            340.00
 
         
 
              Richard is not seeking compensation for healing period.  His 
 
         only claim is for permanent partial disability benefits.
 
         
 
              [At the hearing in this matter, claimant attempted to 
 
         introduce evidence that he was discharged from employment with 
 
         defendant due to his work injury, and not because of his alleged 
 
         violation of a work rule against dating hourly employees.  The 
 
         transcript shows that claimant's evidence was ruled irrelevant by 
 
         the deputy.
 
         
 
                 Q.  What did he say?
 
         
 
                 A.  And he says, "You'll be all right.  You just 
 
              have butterflies in your stomach."  And then Tom 
 
              Poppinteen was in the office with Frank and Tom -- I 
 
              heard Tom say over the phone --
 
         
 
                    MR. CORTESE:  I'm going to object to all this 
 
              hearsay testimony.  They haven't called Mr. Parkins to 
 
              come in here and testify.  All of this is self-serving.  
 
              It's irrelevant to what we're talking about.
 
         
 
                   DEPUTY INDUSTRIAL COMMISSIONER:  I was going to 
 
              say, how is this relevant?
 
         
 
                   MR. McELWAIN:  Your Honor, perhaps I should have 
 
              done an opening statement.  Mr. Eisenbacher was 
 
              terminated four months after his work injury, a few 
 
              months after the employer had full knowledge that he 
 
              was making a back claim or had a back claim and was 
 

 
         
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
              considering litigation over his hearing loss.
 
         
 
                   He was terminated based on an unwritten rule that 
 
              managers don't date hourly employees.  What we're 
 
              getting into is the notice that the employer had back 
 
              in '87 about his situation with an hourly employee from 
 
              another office.
 
         
 
                   MR. CORTESE:  Well, if he wants to prove that, 
 
              he's got to get these people in here to show they know.
 
         
 
                   DEPUTY INDUSTRIAL COMMISSIONER:  Regardless of -- 
 
              this is an administrative hearing.  Assuming that 
 
              management knew it, that he was dating the hourly 
 
              employee, assuming Tom Parkins or whatever the fellow's 
 
              name was told him it's okay for you to date this hourly 
 
              employee and assuming four months after he made his 
 
              injury claims they fired him and used that for -- as 
 
              the basis, how does that fall within my jurisdiction?
 
         
 
                   MR. McELWAIN:  We're not litigating a tort.  What 
 
              we're attempting to show is that the industrial 
 
              disability is greater by virtue of the fact that the 
 
              employer would not continue to employ him after the 
 
              injury.  The company is going to obviously make the 
 
              argument that Mr. Eisenbacher willingly quit or he 
 
              voluntarily quit and that would clearly lessen his 
 
              industrial disability if that were the case.
 
         
 
                   DEPUTY INDUSTRIAL COMMISSIONER:  Only if -- I 
 
              mean, industrial disability is related to disability 
 
              and I don't -- I have -- I don't understand how 
 
              something dealing with who he dated has anything to do 
 
              with his disability.
 
         
 
                        MR. McELWAIN:  Couching that language 
 
              admittedly it wouldn't, but the reasons for him not 
 
              continuing his employment at UPS would be a factor in 
 
              considering the -- weighing his industrial disability.
 
         
 
                   DEPUTY INDUSTRIAL COMMISSIONER:  Well, my ruling 
 
              is that even if it were proven beyond any shadow of a 
 
              doubt that it were drummed up -- that they were drummed 
 
              up to fire him or force him to quit or force him to 
 
              resign or whatever in retaliation for him making an 
 
              injury claim or hearing loss claim or whatever, that 
 
              doesn't provide a basis for me to make an award or to 
 
              affect the size of any award that I might make based 
 
              upon an injury.
 
         
 
                   MR. McELWAIN:  Okay.
 
         
 
                   DEPUTY INDUSTRIAL COMMISSIONER:  So with that I'm 
 
              sustaining the objection made by Mr. Cortese.
 
         
 
                   MR. McELWAIN:  Very good.  I understand it, and 
 
              just so you're clear, Your Honor, obviously that's not 
 
              the only basis for a claim for permanency or industrial 
 
              disability and I didn't mean to hint that that was.
 

 
         
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         
 
                   DEPUTY INDUSTRIAL COMMISSIONER:  You may proceed.
 
         
 
         (Transcript page 53, line 6 through page 56, line 1)
 
         
 
         
 
              However, in the arbitration decision, the deputy then 
 
         apparently relied on the lack of evidence on this question in 
 
         determining claimant's industrial disability:  "Nevertheless, 
 
         claimant has not argued in his brief that the employment 
 
         termination was a reaction to the workers' compensation claim and 
 
         the record does not show any such sequence of events to be a 
 
         probability."  (Arbitration Decision, page 6)
 
         
 
              Defendants objected to claimant's testimony on why he was 
 
         discharged on the basis of hearsay.  To the extent the testimony 
 
         of claimant attempted to quote a conversation he overheard, the 
 
         conversation did constitute hearsay.  However, generally hearsay 
 
         is not excluded in workers' compensation proceedings.
 
         
 
              The deputy's evidentiary ruling went beyond ruling on the 
 
         hearsay objection.  The deputy prohibited claimant from offering 
 
         any testimony or evidence, hearsay or otherwise, on why he was 
 
         discharged.  The deputy correctly stated that if claimant had 
 
         been discharged for filing a workers' compensation claim, the 
 
         claimant might have a tort remedy for retaliatory discharge.  
 
         However, the conduct of the employer in not rehiring an injured 
 
         worker, or in discharging or taking other adverse action against 
 
         a worker because he or she has suffered an on-the-job injury, is 
 
         a relevant factor of industrial disability.
 
         
 
              Under McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 
 
         1980) and Blacksmith v. All-America, Inc., 290 N.W.2d 348 (Iowa 
 
         1980), if a worker is placed in a position by his employer after 
 
         an injury to the body as a whole and because of the injury which 
 
         results in an actual reduction in earning, this may justify an 
 
         award of industrial disability.  This would appear to be so even 
 
         if the worker's "capacity" to earn has not been diminished.
 
         
 
              When an employer discharges an employee for having suffered 
 
         a work injury, such conduct is a proper factor under industrial 
 
         disability.  The fact that some portion of the same conduct may 
 
         also form the basis for a tort action for retaliatory discharge 
 
         does not preclude consideration of the conduct as a factor of an 
 
         industrial disability award.  If an employer places a worker in a 
 
         less advantageous position or even terminates the employment 
 
         because the worker has suffered an injury, such employer conduct 
 
         is considered in assessing industrial disability
 
         
 
              The evidence as to why claimant was discharged should not 
 
         have been excluded.  This is especially true when the arbitration 
 
         decision acknowledges that such evidence may have been relevant, 
 
         then penalizes claimant for not introducing the evidence he was 
 
         prohibited from submitting.]
 
         
 
              WHEREFORE, the decision of the deputy is remanded for 
 
         further findings of fact.
 
         
 
                                      ORDER
 

 
         
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That this case is remanded to a deputy industrial 
 
         commissioner for further evidence limited to evidence of the 
 
         reasons for claimant's discharge.  Upon receipt of the evidence, 
 
         the defendants shall file a transcript at defendants' initial 
 
         expense.  Within thirty (30) days of the receipt of evidence, the 
 
         parties shall file simultaneous briefs to the industrial 
 
         commissioner and the case will be considered fully submitted on 
 
         appeal at that time.
 
         
 
              
 
              Signed and filed this ____ day of September, 1993.
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harry Smith
 
         Mr. Dennis McElwain
 
         Attorneys at Law
 
         632-40 Badgerow Building
 
         P O Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Joseph Cortese, II
 
         Attorney at Law
 
         500 Liberty Building
 
         Des Moines, Iowa  50309-2421
 
         
 
              
 
 
            
 
 
 
 
 
                
 
 
 
                                         1803; 2902
 
                                         Filed September 30, 1993
 
                                         BYRON K. ORTON
 
            
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            RICHARD J. EISENBACHER,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 979203
 
            UNITED PARCEL SERVICE,     
 
                                                 A P P E A L
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            LIBERTY MUTUAL INSURANCE CO.,   
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
           
 
            1803; 2902
 
            Case was remanded to deputy on limited question of 
 
            circumstances surrounding claimant's termination of 
 
            employment.  Claimant attempted to introduce evidence that 
 
            he was fired under a non-fraternization rule as a pretext, 
 
            and was actually terminated because of his work injury.  
 
            Claimant was precluded by the deputy from introducing any 
 
            evidence on why he was fired, as such might constitute a 
 
            separate cause of action for retaliatory discharge in tort.  
 
            The deputy's decision then remarked that claimant had failed 
 
            to introduce evidence or argue that he had been fired due to 
 
            his injury.
 
            
 
            On appeal, held that relevant and admissible evidence on the 
 
            circumstances surrounding claimant's termination should have 
 
            been admitted, as employer conduct that places a worker in 
 
            an adverse position after a work injury may constitute an 
 
            element of industrial disability under McSpadden and 
 
            Blacksmith.  Remanded to accept evidence on this question 
 
            only.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD J EISENBACHER,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 979203
 
            UNITED PARCEL SERVICE,        :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Richard 
 
            J. Eisenbacher against his former employer United Parcel 
 
            Service based upon an admitted injury of November 28, 1989.  
 
            Claimant seeks compensation for permanent partial disability 
 
            based upon that injury.  He also seeks payment of medical 
 
            expenses and payment of expenses incurred in obtaining an 
 
            independent medical examination under the provisions of Code 
 
            section 85.39.
 
            
 
                 The record in this proceeding consists of testimony 
 
            from Richard J. Eisenbacher, Jim Foot and Curtis Cruise.  
 
            The record also contains claimant's exhibits 1 through 43 
 
            and defendants' exhibits 1, 2, 4 and 6. 
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made:
 
            
 
                 Richard J. Eisenbacher is a 52-year-old man who quit 
 
            school during the eleventh grade but subsequently obtained a 
 
            GED.  He was not particularly good at academic pursuits.  
 
            Much of his work history has been involved with vehicle 
 
            mechanics.  He has also worked in other fields.  He repaired 
 
            milking machines, worked at a lumber yard and operated a gas 
 
            station.  
 
            
 
                 Richard commenced employment with United Parcel Service 
 
            in 1979.  He worked as a line mechanic at the Spencer, Iowa, 
 
            terminal.  As shown in exhibit 2, his work required bending, 
 
            stooping, pushing, and pulling.  On occasion he would be 
 
            required to lift as much as 100 pounds.  Richard was able to 
 
            perform as a line mechanic and his pay advanced to as much 
 
            as $10.67 per hour.  While working as a line mechanic 
 
            Richard began dating Kathy Grady, who worked in the UPS 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            office at Spencer.
 
            
 
                 In 1982 Richard suffered a heart attack.  He was off 
 
            work approximately four months and returned with 
 
            restrictions.  The heart attack and restrictions did not 
 
            impair his work performance.  As recently as 1990 he 
 
            underwent an angiogram.  Richard does not feel that his 
 
            heart condition limits him today.  
 
            
 
                 In October 1987 Richard was promoted to a supervisory 
 
            position.  UPS has a policy which prohibits supervisory 
 
            employees from dating nonsupervisory employees.  Richard did 
 
            not want to quit dating Kathy.  He did not want to move to 
 
            Des Moines.  He had been dating Kathy since 1979 and that 
 
            fact was known when he was promoted into the supervisory 
 
            position.  It had not been any particular problem with his 
 
            employer until early 1990 after the injury in this case had 
 
            been reported.  Richard was then given a choice of being 
 
            fired or resigning.  He elected to resign.  His resignation 
 
            was not voluntary since he did not have the option of 
 
            staying with the company.  The fact that he received 
 
            unemployment benefits, despite the employer's protest, is 
 
            further evidence that his resignation was not voluntary 
 
            since a voluntary resignation would have made him ineligible 
 
            for unemployment.  Following his resignation Richard 
 
            returned to the Spencer area where he now resides with 
 
            Kathy.
 
            
 
                 Richard worked as a press operator for several months 
 
            earning approximately $6 per hour.  He has performed odd 
 
            jobs and continues to do so.  His odd jobs provide him with 
 
            an income in the range of $200 to $250 monthly.  He also 
 
            receives approximately $135 per month from an installment 
 
            sales contract of a property he owned in the Spencer area.  
 
            Kathy Grady helps support him.
 
            
 
                 Richard feels that he is unable to perform work as a 
 
            regular mechanic.  He complains of pain and numbness 
 
            affecting his left hand and arm.  He complains of problems 
 
            with his low back.  
 
            
 
                 Immediately following the injury Richard sought 
 
            chiropractic treatment at Sherwood Forest Chiropractic 
 
            Clinic.  He was seen a total of 13 times during the months 
 
            of November 1989 through March 1990.  The records of his 
 
            initial visit, exhibits 9 and 15, show his complaints to 
 
            include his left thigh and leg, low back, neck, headaches, 
 
            sinus pressure, and numbness in his left arm.  It appears as 
 
            though the thigh and leg ache complaints had their origin 
 
            two to three years previously but that the low back, neck, 
 
            headache, sinus pressure, and left arm numbness came on from 
 
            jumping off tractors at UPS.  Interestingly, a later record, 
 
            exhibit 16 which is dated January 30, 1990, indicates that 
 
            Richard did not know how his headaches, neck pain and left 
 
            arm numbness came about (exhibit 16).  It is noted that in 
 
            that history no mention is made of back problems. 
 
            
 
                 Richard was also treated at the Mercy Occupational 
 
            Medicine Clinic.  On December 6, 1989, the history shown in 
 
            the records is that he stepped out of a package car onto an 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            object on the floor and twisted his back.  Subsequent 
 
            records of December 29, 1989, indicate that he continued to 
 
            have low back and left hip problems but that he was working 
 
            his regular job without any difficulty.  Chiropractic care 
 
            was authorized.  Diagnostic tests which were conducted 
 
            showed degeneration and conditions of long-standing origin 
 
            but did not objectively show any recent, acute trauma (ex. 
 
            18).  
 
            
 
                 In early 1990 Richard took two separate two-week 
 
            vacations.  While in Spencer he treated with Rex Jones, 
 
            D.C., for headaches, left neck pain and left arm pain.  The 
 
            history given was that he had slipped and twisted his back.  
 
            The records show very little in way of care for his back 
 
            (exs. 19, 20).
 
            
 
                 Other than for the time Richard took vacation in early 
 
            1990, he continued to work from the day of injury through 
 
            the day that his employment with UPS ended.  He has not 
 
            received further treatment since being seen by Dr. Jones.  
 
            He has not sought further care through his employer.  
 
            
 
                 Richard has been evaluated by three physicians for 
 
            purposes of litigation.  The first was Daniel J. McGuire, 
 
            M.D., an orthopedic surgeon.  In a report dated December 5, 
 
            1991, Dr. McGuire related that he could not find much in the 
 
            way of objective problems in Richard's low back.  He felt 
 
            that as far as the low back condition was concerned, there 
 
            was no ratable impairment and no permanent activity 
 
            restrictions should be imposed.  Dr. McGuire noted that 
 
            Richard did have a problem with his neck, left shoulder and 
 
            left upper extremity but he stated that those problems were 
 
            difficult to relate to the low back problem.  It is noted 
 
            that the history in the report does not include Richard 
 
            catching himself with his left hand when he fell.  In the 
 
            report the physical examination notes show that Richard had 
 
            decreased sensation in the left C-8 nerve distribution and 
 
            also in the left L5-S1 nerve distribution.  Dr. McGuire felt 
 
            that the November 28, 1989, incident was a relatively minor 
 
            event from which Richard would have completely recovered in 
 
            six to twelve months.  
 
            
 
                 Richard was next evaluated by Pat Luse, D.C.  The 
 
            history relied upon by Dr. Luse is incorrect to the extent 
 
            that it showed that Richard had not returned to work since 
 
            the accident.  Dr. Luse found Richard to have sensory 
 
            impairment which warranted a 3 percent impairment rating of 
 
            the left upper extremity and reduced range of motion 
 
            regarding his back which warranted a 9 percent impairment 
 
            rating.  Dr. Luse indicated that the combination of those 
 
            two impairments rounded to 15 percent.  It is noted that 3 
 
            percent of any extremity is equivalent to approximately a 1 
 
            1/2 percent impairment of the whole person.  When 1 1/2 
 
            percent is combined with 9 percent and rounded, it rounds to 
 
            10 percent rather than 15 percent.  Dr. Luse recognized that 
 
            Richard had preexisting problems and reported that 50 
 
            percent of the total impairment was due to the November 28, 
 
            1989 injury.  Dr. Luse felt that claimant would have 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            recurrent problems.  He recommended physical capacity 
 
            limitations of 20 pounds for lifting, carrying, pushing, and 
 
            pulling.  He felt that a 10-pound limit should be applied to 
 
            repetitive lifting (ex. 21).  
 
            
 
                 Richard was also evaluated by Jay J. Parsow, M.D., a 
 
            specialist in physical medicine.  Dr. Parsow formed the 
 
            impression that the fall of November 28, 1989, was 
 
            responsible for aggravating preexisting neck and back pain 
 
            and also for producing radicular symptoms in Richard's left 
 
            arm and leg.  Dr. Parsow noted that the prognosis was 
 
            guarded but that it could be improved with treatment.  Dr. 
 
            Parsow agreed that Richard should be restricted to light 
 
            work as recommended by Dr. Luse.  Dr. Parsow felt that 
 
            Richard had an 18 percent permanent impairment which was 
 
            directly related to the November 28, 1989 injury.  
 
            
 
                 Richard has incurred expenses with his various medical 
 
            providers.  In the prehearing report it was stipulated that 
 
            the providers of these services would testify that the fees 
 
            were reasonable.  No contrary evidence is in the record.  
 
            
 
                 He incurred charges of $510 with Dr. Luse.  Of that 
 
            amount, $350 was charged for the examination and $160 was 
 
            charged for x-rays.  It is noted that it had been a 
 
            considerable amount of time since x-rays had been taken and 
 
            it is therefore deemed reasonable for additional x-rays to 
 
            have been taken by Dr. Luse.  The examination by Dr. Luse 
 
            was an examination conducted for purposes of litigation in 
 
            order to obtain a rating of impairment after the impairment 
 
            had been rated by Dr. McGuire, the physician selected by the 
 
            employer (ex. 37).
 
            
 
                 According to exhibit 38 Richard incurred charges at the 
 
            Mercy Hospital Medical Center in the total amount of $944.  
 
            Those charges were incurred during the month of January 1990 
 
            and appear to coincide with the treatment provided by David 
 
            Berg, M.D., the employer's physician.
 
            
 
                 Exhibit 39 shows charges from Dr. Jones in the amount 
 
            of $48.20.  Chiropractic care was authorized by Dr. Berg.
 
            
 
                 Exhibit 41 is additional charge sheets from the 
 
            Mercy-Iowa Occupational Medicine Clinic.  The charges total 
 
            $172.  They were incurred in December 1989 and March 1990.  
 
            These charges are consistent with the treatment provided by 
 
            Dr. Berg.
 
            
 
                 Exhibit 43 shows charges from Robert VerDoorn, D.C., of 
 
            the Sherwood Forest Chiropractic Clinic.  Charges were 
 
            incurred commencing November 29, 1989 and running through 
 
            March 9, 1990.  Chiropractic treatment had been authorized 
 
            by Dr. Berg.  The charges total $340.  
 
            
 
                 It is found that all the medical expenses contained in 
 
            exhibits 38, 39, 41, and 42 were incurred in obtaining 
 
            reasonable treatment for the injuries Richard sustained on 
 
            November 29, 1989.  The charges shown on exhibit 37 were 
 
            incurred in obtaining an independent medical examination.  
 
            All of the treatment appears to have been reasonably suited 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            to the injury which Richard sustained.  All the treatment 
 
            appears to have been clearly authorized by the employer.  
 
            
 
                 The assessments of the medical providers in this case 
 
            are somewhat divergent.  As indicated by Dr. McGuire, the 
 
            problems affecting Richard's neck, left shoulder and left 
 
            upper extremity do not have their origin or basis in his low 
 
            back.  They have their origin in catching himself when he 
 
            fell.  This makes those problems as much a result of the 
 
            injury as if they were somehow caused by some abnormality in 
 
            his low back.  The injurious event which was described at 
 
            hearing is one which would appear to have a potential for 
 
            producing an injury in the cervical spine and left upper 
 
            extremity as well as injury to the low back.  The real 
 
            question is whether or not they did in fact cause those 
 
            injuries.  The claim is well corroborated by the fact that 
 
            Richard began seeking treatment immediately after the 
 
            injurious event and continued to seek treatment into early 
 
            March of 1990.  Initial patient history discussion (ex. 15) 
 
            is not particularly illustrative one way or the other.  It 
 
            is recognized that physicians often do not obtain accurate, 
 
            complete, detailed histories of all the preceding events.  
 
            They often fail to ask the patient whether whatever they 
 
            have written for the history is complete and accurate.  The 
 
            history subsequently entered in exhibit 16 is quite 
 
            corroborative of the claim.  
 
            
 
                 The history entered on December 6, 1989, in exhibit 18 
 
            with Dr. Berg, is also corroborative of the claim.  
 
            Litigation was ongoing and the subsequent medical histories 
 
            given to the three examining physicians are all somewhat 
 
            suspect as are the interpretations made by each particular 
 
            physician as it appears in their reports.  
 
            
 
                 The case is perplexing in the sense that Richard 
 
            Eisenbacher has a very commendable work history.  He has had 
 
            a number of employers but has generally been regularly 
 
            employed.  He was apparently sufficiently productive with 
 
            UPS to be promoted into a management position.  His 
 
            performance as a supervisor was apparently adequate.  Based 
 
            upon all the known information about Richard Eisenbacher it 
 
            would be totally out of character for him to feign an injury 
 
            or disability.
 
            
 
                 On the other hand, the record in this case shows that 
 
            Richard had preexisting problems.  Doctors Luse and Parsow 
 
            concur in finding preexisting problems.  The loss of 
 
            sensation noted in Dr. McGuire's report is really the only 
 
            objective evidence of a significant medical problem, other 
 
            than for the preexisting problems.  Richard has not sought 
 
            further treatment, not even chiropractic care for his 
 
            problems.  He was able to work in a factory setting.  These 
 
            things all seem to indicate that the November 28, 1989, 
 
            injury did not produce any substantial permanent problems 
 
            for Richard. 
 
            
 
                 The sequence of events in this case is sufficient to 
 
            make one suspect that Richard's report of injury and seeking 
 
            of medical care may have induced his supervisors to use his 
 
            relationship with Kathy Grady as a sham excuse for 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            terminating his employment.  On the other hand, there is no 
 
            direct evidence that any such occurrence actually happened.  
 
            Further, as seen in other cases, a number of other UPS 
 
            employees have pursued workers' compensation claims, even 
 
            into litigation, without loss of employment.  Nevertheless, 
 
            it is difficult to believe that the Kathy Grady 
 
            relationship, which had existed with the knowledge of 
 
            Richard's supervisors since prior to his appointment into a 
 
            managerial position, was really, in fact, the motivating 
 
            factor for forcing Richard to choose between the 
 
            relationship, resignation or firing.  Richard did not 
 
            supervise Kathy, did not work in the same city as Kathy or 
 
            hold a position in which there was any reasonable likelihood 
 
            that he would ever be in a supervisory position over her.  
 
            It is difficult to understand why UPS would choose to have 
 
            or enforce a rule such as the one relied upon when forcing 
 
            Richard to make the choices which resulted in his 
 
            resignation.  Nevertheless, claimant has not argued in his 
 
            brief that the employment termination was a reaction to the 
 
            workers' compensation claim and the record does not show any 
 
            such sequence of events to be a probability.
 
            
 
                 Richard obtained his supervisory position by moving to 
 
            the Des Moines, Iowa, area.  Following the end of his 
 
            employment relationship with UPS, he returned to northwest 
 
            Iowa.  It is well known that managerial and supervisory 
 
            positions exist in far greater numbers in the Des Moines, 
 
            Iowa, area than in the Spencer, Iowa, area.  Richard's 
 
            success at obtaining re-employment has been quite dismal.  
 
            He has experienced a profound reduction in actual earnings.  
 
            It is quite possible, however, that even if Richard had not 
 
            been injured, his attempts to resume employment would be 
 
            little different from what has actually occurred.  The one 
 
            thing that is different, however, is that prior to his move 
 
            to Des Moines to become a supervisor his principal 
 
            occupation had been that of a mechanic.  The restrictions 
 
            recommended by Doctors Luse and Parsow effectively prohibit 
 
            him from performing work as a mechanic.  He most likely does 
 
            have the level of knowledge and expertise which is necessary 
 
            to be a mechanic but his physical capacity is limited.  
 
            While he can in all likelihood perform some functions of a 
 
            mechanic if allowed to work at his own pace, employment as a 
 
            mechanic requires the ability to perform those functions at 
 
            a commercially productive pace.  It is that capacity to 
 
            perform at a commercially productive rate that Richard has 
 
            apparently lost.  
 
            It is difficult to determine whether Richard's loss of 
 
            ability to perform as a productive mechanic is in any manner 
 
            affected by the events of November 28, 1989.  He continued 
 
            to
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
         work as a supervisor for nearly five months following the injury.  
 
         It is recognized that one of those five months was taken as 
 
         vacation.  He has not sought further medical care since leaving 
 
         his employment with UPS.  He has not taken any action to compel 
 
         the employer to provide any type of further care for his 
 
         condition.  These are very strong indications that the injury did 
 
         not produce any significant degree of disability.  
 
         
 
              It is therefore found that the record in this case does not 
 
         show it to be probable that the event of November 28, 1989, 
 
         produced any significant permanent disability which affects 
 
         Richard Eisenbacher.  His loss of earnings is highly related to 
 
         his decision to leave the Des Moines, Iowa, area and move to the 
 
         Spencer area.  His loss of ability to work as a productive 
 
         mechanic is as likely related to the previously existing 
 
         degenerative condition as to any injury.  
 
         
 
                                conclusions of law
 
         
 
              The party who would suffer loss if an issue were not 
 
         established has the burden of proving that issue by a 
 
         preponderance of the evidence.  Iowa R. of App. P. 14(f).
 
         
 
              The record in this case is clearly sufficient to show that 
 
         it is possible that the events of November 28, 1989, in some way 
 
         might have permanently damaged Richard's low back or neck and 
 
         left upper extremity.  The record does not, however, show that to 
 
         be probable or more likely than not.  The fact that Richard was 
 
         able to continue performing his work until the employment was 
 
         terminated and the fact that he has not sought further care for 
 
         his condition is a strong indication that the physical disability 
 
         which has been identified did not result from the incidents of 
 
         November 28, 1989.  Richard is therefore not entitled to recover 
 
         any weekly compensation benefits in this case.  While he was 
 
         injured and received appropriate care, his disability had 
 
         apparently resolved by the time the employment terminated in late 
 
         April of 1990.  Defendants are responsible for paying the costs 
 
         of medical treatment and also for the costs of the independent 
 
         medical examination but they are not responsible for any weekly 
 
         compensation benefits.
 
         
 
              Defendants have admitted the injury.  Following the injury 
 
         they directed the care and treatment through their company 
 
         physician, Dr. Berg.  It is unclear why they have not paid the 
 
         medical expenses which were incurred under their direction and 
 
         express authorization.  Defendants are therefore responsible for 
 
         payment of the expenses shown in exhibits 38, 39, 41, and 42 as 
 
         follows:
 
         
 
              Mercy Hospital Medical Center                $ 944.00
 
              Chiropractic Arts Clinic, P.C.                  48.20
 
              Mercy-Iowa Occupational Medicine Clinic        172.00
 
              Sherwood Forest Chiropractic Clinic            340.00
 
         
 
              Richard is not seeking compensation for healing period.  His 
 
         only claim is for permanent partial disability benefits.  
 
         
 
                                      order
 
         
 
              IT IS THEREFORE ORDERED that defendants pay the following 
 

 
         
 
         Page òòò  8        
 
         
 
         
 
         
 
         expenses under the provisions of Iowa Code section 85.27:
 
              
 
              Mercy Hospital Medical Center                $ 944.00
 
              Chiropractic Arts Clinic, P.C.                  48.20
 
              Mercy-Iowa Occupational Medicine Clinic        172.00
 
              Sherwood Forest Chiropractic Clinic            340.00
 
         
 
              It is further ordered that under the provisions of Iowa Code 
 
         section 85.39 defendants pay $510 for the evaluation performed by 
 
         Pat Luse, D.C.  
 
         
 
              It is further ordered that defendants have no liability for 
 
         weekly compensation benefits in this case.
 
         
 
              It is further ordered that the costs of this action are 
 
         assessed against defendants pursuant to rule 343 IAC 4.33.
 
         
 
              It is further ordered that defendants file claim activity 
 
         reports as requested by this agency.
 
         
 
              Signed and filed this ____ day of February, 1993.
 
         
 
         
 
         
 
         
 
                                       ______________________________
 
                                       MICHAEL G. TRIER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER    
 
         
 
         Copies to:
 
         
 
         Mr. Harry Smith
 
         Mr. Dennis McElwain
 
         Attorneys at Law
 
         632-40 Badgerow Bldg
 
         PO Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Joseph Cortese, II
 
         Attorney at Law
 
         500 Liberty Bldg
 
         Des Moines, Iowa  50309-2421
 
         
 
         
 
         
 
              
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      51402.40
 
                      Filed February 9, 1993
 
                      Michael G. Trier
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RICHARD J EISENBACHER,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 979203
 
            UNITED PARCEL SERVICE,   :
 
                      :  A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            LIBERTY MUTUAL,     :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            51402.40
 
            Injured employee failed to prove that injury caused any 
 
            permanent disability.  Claimant awarded medical expenses.
 
            
 
 
         
 
         
 
         
 
         
 
         
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER         
 
         ____________________________________________________________
 
                                       :
 
         MICHAEL HARVEY,               :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :         File No. 979205
 
         KINKADE PLUMBING,             :
 
                                       :      A R B I T R A T I O N
 
              Employer,                :
 
                                       :         D E C I S I O N
 
         and                           :
 
                                       :
 
         AETNA CASUALTY & SURETY       :
 
         COMPANY,                      :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration upon the petition of 
 
         claimant, Michael Harvey, against his employer, Kinkade Plumbing, 
 
         and its insurance carrier, Aetna Casualty and Surety Company, 
 
         defendants.  The case was heard on September 8, 1992 at the 
 
         office of the Industrial Commissioner in Des Moines, Iowa.  The 
 
         record consists of the testimony of claimant.  The record also 
 
         consists of the testimony of Shari Epstein, friend of claimant; 
 
         David Harris, former co-employee of claimant; Gale Russell, back
 
         hoe operator and uncle of Bruce E. Kinkade; Cindy Pierce, office 
 
         manager; and Bruce E. Kinkade, president and owner of Kinkade 
 
         Plumbing.
 
         
 
              Additionally, the record is comprised of claimant's exhibits 
 
         1, 2, 3, 4, 5 and defendants' exhibits A-K and L is admitted only 
 
         for credibility purposes.
 
         
 
              It is noted for the record that subsequent to the date of 
 
         the hearing, but prior to the filing of the date of this 
 
         decision, claimant's witness, Shari Epstein, had an occasion to 
 
         converse with the undersigned deputy.  The communication was ex 
 
         parte.  The attorneys of record were orally notified of the 
 
         communication.  However, the attorneys deemed the communication 
 
         as harmless and no subsequent motions were filed by the parties.
 
         
 
                             
 
         
 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
                                      ISSUES
 
         
 
              The issues to be determined are:
 
         
 
              1) Whether claimant sustained an injury which arose out of 
 
         and in the course of his employment; 2) whether there is a causal 
 
         relationship between the alleged injury and any temporary or per
 
         manent disability; 3) whether claimant is entitled to any healing 
 
         period or permanent partial disability benefits; and 4) whether 
 
         claimant is entitled to any medical benefits pursuant to section 
 
         85.27.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The deputy, having heard the testimony and considered all 
 
         the evidence, finds:
 
         
 
              Claimant graduated from Roosevelt High School in Des Moines, 
 
         Iowa in 1971.  Since 1972 claimant has been engaged in the con
 
         struction field.  He has had vast experiences which include 
 
         putting footings in houses; doing cement work; operating cranes; 
 
         doing roofing tasks; using shovels and spades; operating an air 
 
         hammer; installing sewer and water pipes; and installing fix
 
         tures, copper lines and water heaters.
 
         
 
              Claimant had been an employee of defendant-employer from 
 
         1985 until January of 1990.  During his employment, claimant 
 
         worked as an apprentice plumber and then as a journeyman plumber.  
 
         In 1986 or 1987 claimant became a licensed plumber in both Des 
 
         Moines and West Des Moines.  While he was employed by defendant, 
 
         claimant earned $14.00 per hour.  Claimant was terminated for 
 
         "unauthorized moonlighting."
 
         
 
              At the time of the hearing, claimant was employed by a dif
 
         ferent plumbing contractor.  He earned $16.00 per hour.  Claimant 
 
         was employed as a regular full time employee.
 
         
 
              Claimant testified that on July 24, 1989, he was working on 
 
         the premises of 1116 20th Street, West Des Moines, Iowa.  His 
 
         testimony was verified by defendants' exhibit K.  Claimant 
 
         described his work activities on that date.  He explained that he 
 
         was replacing and cutting off a septic tank.  He testified that 
 
         he was tunneling with a spade so he could hook onto the sewer 
 
         system.  Claimant stated that while he was shoveling, he hit an 
 
         obstruction, thus jamming his right wrist.  At the time of the 
 
         incident, claimant stated his left hand was around the shaft of 
 
         his shovel and the right hand was around the handle.
 
         
 
              Claimant also testified that upon hitting the obstruction, 
 
         he experienced a sharp sensation in his right wrist.  However, he 
 
         described himself as having a high tolerance for pain and so he 
 
         continued to work that day and for the remainder of the week.  No 
 
         one else on the job site knew of the incident.
 
         
 
              Claimant neglected to report the incident until January 16, 
 
         1990, the day after claimant was terminated.  The testimony is 
 
         uncontroverted.
 
         
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
              Claimant did not seek medical treatment for his right wrist 
 
         until August 10, 1989 when he appeared at Charter Community 
 
         Hospital.  Medical notes for the attending physician, Dr. Brady 
 
         (first name unknown), state:  "...States approx 2 wks ago pain 
 
         inside R wrist, Pain, swelling, Lump R wrist...Diagnosis 
 
         Tenosynovitis"  (Defendants' Exhibit A-2)
 
         
 
              According to the testimony of Cindy Pierce, office manager 
 
         with defendant-employer, the company had no knowledge of the 
 
         incident in question until there was a telephone call from an 
 
         employee in the office of Martin S. Rosenfeld, D.O., who provided 
 
         information relative to the alleged work injury.  The telephone 
 
         call occurred on the day after claimant was terminated.  Prior to 
 
         that date, claimant had given no notice of an incident.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The party who would suffer loss if an issue were not estab
 
         lished has the burden of proving that issue by a preponderance of 
 
         the evidence.  Iowa R. App. P. 14(f).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the alleged injury actually occurred and that 
 
         it arose out of and in the course of employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967).  The words 
 
         "arising out of" refer to the cause or source of the injury.  The 
 
         words "in the course of" refer to the time, place and circum
 
         stances of the injury.  Sheerin v. Holin Co., 380 N.W.2d 415 
 
         (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury is a proximate cause of the disabil
 
         ity on which the claim is based.  A cause is proximate if it is a 
 
         substantial factor in bringing about the result; it need not be 
 
         the only cause.  A preponderance of the evidence exists when the 
 
         causal connection is probable rather than merely possible.  
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); 
 
         Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert testimony.  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on the 
 
         causal connection between the injury and the disability.  The 
 
         weight to be given to any expert opinion is determined by the 
 
         finder of fact and may be affected by the accuracy of the facts 
 
         relied upon by the expert as well as other surrounding circum
 
         stances.  The expert opinion may be accepted or rejected, in 
 
         whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
         (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
         1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).
 
         
 
              Claimant's evidence is filled with inconsistencies.  His 
 
         behavior is inconsistent with claimant's prior behavior regarding 
 
         the filing of first reports of injury.  Claimant had filed previ
 
         ous claims involving workers' compensation.
 
         
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
              Claimant appeared at hearing and testified to having suf
 
         fered a work-related injury on July 24, 1989.  He made no report 
 
         of the injury until the day after claimant was terminated by his 
 
         employer.  The incident allegedly occurred at a job site on 20th 
 
         Street in West Des Moines, Iowa.  Claimant testified there were 
 
         no other witnesses to the incident.  However, there were other 
 
         individuals on site.  They had no knowledge of the alleged inci
 
         dent.
 
         
 
              Gale Russell, a backhoe operator, was present that day and 
 
         was working on the same job site.  Mr. Russell testified that on 
 
         the date in question, he never saw claimant injure his wrist.  
 
         Additionally, Mr. Russell testified that claimant never com
 
         plained to him of any work injury, nor did claimant even complain 
 
         of pain in his wrist, or use any "foul language" to describe any 
 
         pain.  
 
         
 
              Likewise, there was the testimony of David Harris.  He too 
 
         was on the job site on the date in question.  Mr. Harris, while 
 
         able to recall that claimant was tunneling, was not able to 
 
         recall whether claimant had said he was injured.
 
         
 
              Claimant did not report the alleged incident to either the 
 
         owner of the company, Bruce Kinkade or to the office manager, 
 
         Cindy Pierce until the day after claimant was terminated.  
 
         Claimant testified, "he feared for his job if he filed another 
 
         workers' compensation claim."  However, the undersigned, after 
 
         having heard the testimony of Bruce Kinkade, did not believe that 
 
         Mr. Kinkade threatened claimant with possible termination if 
 
         claimant filed a workers' compensation claim.  The veracity of 
 
         claimant's testimony concerning the incident in question was sus
 
         pect, especially since claimant's credibility was successfully 
 
         impeached by defendants' exhibit L.  Again claimant's behavior 
 
         was inconsistent with the behavior of a man who had filed previ
 
         ous workers' compensation claims.
 
         
 
              Claimant did not seek any medical treatment for a right 
 
         wrist injury until 17 days after the occurrence of the alleged 
 
         incident.  Even then, claimant did not report to the attending 
 
         physician that the injury occurred at work.  All that was 
 
         reported was that he had experienced pain for approximately two 
 
         weeks (Def. Ex. A-2).
 
         
 
              Also the report claimant made to his treating orthopedic 
 
         surgeon, Dr. Rosenfeld, was totally inconsistent with the injury 
 
         date alleged by claimant.  In the office note of January 16, 
 
         1990, it was reported that:
 
         
 
              Michael returns at this time with complaints of pain in 
 
              both wrists.  He feels he jammed them at work while 
 
              digging sometime in November....
 
         
 
              (Emphasis added)
 
         
 
              Claimant testified that the date should have been July.  
 
         However, the undersigned has no basis for questioning the accu
 
         racy of Dr. Rosenfeld's office note.
 
         
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
              While it is acknowledged that Ms. Shari Epstein testified on 
 
         behalf of claimant, Ms. Epstein's testimony was mostly based on 
 
         statements made to her by claimant.  Additionally, Ms. Epstein 
 
         could not remember the date on which claimant allegedly injured 
 
         his wrist.  Her testimony was less than credible.
 
         
 
              The undersigned observed claimant's demeanor and noted the 
 
         inconsistencies between his testimony and that of the witnesses 
 
         for defendants.  Claimant has been less than candid.  There are 
 
         numerous inconsistencies in the evidence.  Claimant is not credi
 
         ble.  It is impossible to support recovery in this case.  
 
         Claimant did not receive an injury which arose out of and in the 
 
         course of his employment and consequently, claimant can take 
 
         nothing from these proceedings.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant takes nothing from these proceedings.
 
         
 
              Each party shall bear its own costs pursuant to rule 343 IAC 
 
         4.33.
 
         
 
         
 
              Signed and filed this ____ day of October, 1992.
 
         
 
         
 
         
 
         
 
                                       ______________________________               
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Burns H. Davison, III
 
         Attorney at Law
 
         620 Hubbell Building
 
         Des Moines, Iowa  50309
 
         
 
         Ms. Lorraine J. May
 
         Mr. J. D. Hilmes
 
         Attorneys at Law
 
         404 Equitable Building
 
         Des Moines, Iowa  50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                                1100; 1401
 
                                                Filed October 27, 1992
 
                                                MICHELLE A. McGOVERN
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            MICHAEL HARVEY,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 979205
 
            KINKADE PLUMBING,   
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            AETNA CASUALTY & SURETY  
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1100; 1401
 
            Claimant could not prove by a preponderance of the evidence 
 
            that he had sustained a work injury which arose out of and 
 
            in the course of his employment on July 24, 1989.  Claimant 
 
            was less than credible.  His evidence was inconsistent.  The 
 
            incident was unwitnessed.  Two individuals who were on the 
 
            job site had no knowledge of an alleged injury occurring on 
 
            that date.  Claimant did not report the alleged incident 
 
            until the day after he was terminated which was more than 5 
 
            months after the alleged injury occurred.
 
            Claimant sought no medical treatment until 17 days after the 
 
            alleged incident had occurred.  Additional medical evidence 
 
            indicated the incident had occurred in November rather than 
 
            in July.
 
            Claimant had inconsistencies in his evidence.  Claimant's 
 
            credibility was challenged by use of an exhibit where 
 
            claimant had falsified his driving record and status.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           2209; 2401; 2803; 2901
 
                           Filed April 15, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CAROLYN LOFFREDO,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File Nos. 843434
 
                                          :                   979207
 
            HY-VEE FOOD STORES,           :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL COMPANIES,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2209; 2401; 2803; 2901
 
            Parties tried claims for bilateral upper extremity and 
 
            cervical complaints as one litigated case.
 
            Actually, claimant first developed right arm problems and 
 
            left work, creating a compensable injury under McKeever.  
 
            After returning to work, she then developed left arm 
 
            problems (in part due to compensating for the right) and 
 
            left work again -- a second injury.
 
            While off work the second time, claimant began treatment for 
 
            degenerative cervical discs allegedly caused by cumulative 
 
            trauma.  This was held to relate back to when she left work 
 
            the second time, but was barred by failure to give timely 
 
            notice.  Claimant's doctor's letter to carrier was more than 
 
            90 days after claimant left work -- the assigned injury 
 
            date.
 
            Arms were compensated as separate injuries based on Guide in 
 
            effect at the time of each.  Division was ordered to 
 
            establish a file and file number for second (left) arm 
 
            injury.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
MERLIN R. FAULKNER and  
 
HILDEGARD A. FAULKNER    
 
Administrator of    
 
the Estate of  
 
MERLYN R. FAULKNER  
 
                                        File No. 979221
 
     Claimant, 
 
                                     A R B I T R A T I O N
 
vs.       
 
                                        D E C I S I O N
 
JOHN DEERE CO.,    
 
          
 
     Employer, 
 
     Self-Insured,  
 
     Defendants     
 
________________________________________________________________
 
                      STATEMENT OF THE CASE
 
 
 
This case came on for hearing on March 22, 1995, at Waterloo, Iowa.  
 
This is a proceeding in arbitration wherein claimant seeks compensation 
 
for permanent partial disability benefits as a result of an alleged 
 
injury occurring on November 3, 1989.  The claimant also appears to be 
 
seeking, because of the death of the employee, additional death 
 
benefits.
 
 
 
There is no hearing report order, as the undersigned has previously 
 
ruled that claimant is prevented from any activity or presenting any 
 
evidence in this case because of violation of the Iowa Rules of Civil 
 
Procedure, Industrial Commissioner Rules, and the Rules of the Iowa 
 
Administrative Code.
 
 
 
There has been a previous ruling as to the cutting off of the 
 
claimant's evidence and activity.
 
 
 
                         FINDINGS OF FACT
 
 
 
There has been no evidence presented in this case by the claimant; 
 
therefore, claimant has failed to prove claimant's burden.  Claimant 
 
therefore takes nothing from this proceeding.  The defendant was 
 
present through its attorney, John Rathert, and, as expected, no 
 
evidence was presented by the defendant; therefore, there were no 
 
exhibits or evidence presented in this matter.
 
 
 
                                ORDER
 
 
 
THEREFORE IT IS ORDERED:
 
 
 
That claimant takes nothing from this proceeding and that costs are 
 
assessed against claimant.
 
 
 
Signed and filed this _____ day of March, 1995.        
 
                              ______________________________          
 
                              BERNARD J. O'MALLEY      
 
                              DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies to:
 
 
 
Mr. Michael D. Maxwell
 
Attorney at Law
 
601 Locust Street STE 1000
 
Des Moines, Iowa 50309
 
 
 
Mr. John W. Rathert
 
Attorney at Law
 
620 Lafayette Street
 

 
 
 
 
 
 
 
 
 
 
 
 
 
PO Box 178 STE 300
 
Waterloo, Iowa 50704
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                     5-1400
 
                                     Filed March 29, 1992
 
                                     BERNARD J. O'MALLEY
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
MERLIN R. FAULKNER and  
 
HILDEGARD A. FAULKNER    
 
Administrator of    
 
the Estate of  
 
MERLYN R. FAULKNER  
 
                                      File No. 979221
 
     Claimant,
 
                                  A R B I T R A T I O N
 
vs.       
 
                                      D E C I S I O N
 
JOHN DEERE CO.,    
 
          
 
     Employer, 
 
     Self-Insured,  
 
     Defendants     
 
________________________________________________________________
 
5-1400
 
Deputy commissioner cut off claimant's evidence and activity.  No 
 
evidence provided.  Claimant took nothing from the proceeding.
 
 
 
 
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            STACY L. MONTGOMERY,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File Nos. 919123;
 
                                          :        979225; 979226
 
            ROLSCREEN,                    :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL INS. CO.,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Stacy 
 
            Montgomery, claimant, against Rolscreen Company, employer, 
 
            hereinafter referred to as Rolscreen, and Employers Mutual, 
 
            insurance carrier, defendants, for workers' compensation 
 
            benefits as a result of alleged injuries on March 12, 1989, 
 
            April 14, 1989 and May 10, 1989.  On June 9, 1992, a hearing 
 
            was held on claimant's petition and the matter was consid
 
            ered fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  An employee-employer relationship existed between 
 
            claimant and Rolscreen at the time of the alleged injuries.
 
            
 
                 2.  At the time of the injuries, claimant's gross rate 
 
            of weekly compensation was $273.00; she was married; and she 
 
            was entitled to five exemptions.  Therefore, claimant's 
 
            weekly rate of compensation is $191.72 according to the 
 
            Industrial Commissioner's published rate booklet for FY 89.
 
            
 
                 3.  Medical benefits were no longer at issue.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                  I. Whether claimant received an injury arising out of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            and in the course of employment; and,
 
            
 
                 II. The extent of claimant's entitlement to disability 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the 
 
            injuries and disability.  From her demeanor while testify
 
            ing, claimant is found credible.
 
            
 
                 Claimant worked for Rolscreen as a temporary hire.  She 
 
            worked from February 24, 1987 through July 24, 1987; from 
 
            February 22, 1988 through May 27, 1988 and finally from 
 
            December 19, 1988 through March 10, 1989.  Claimant was laid 
 
            off after the first two periods of work but left in March 
 
            1989 as a result of the work injury herein.  When not work
 
            ing at Rolscreen, claimant worked as a nurse's aide at a 
 
            nursing home.  She had been working as a nurse's aide for 
 
            several years before her Rolscreen employment.  Claimant 
 
            preferred working at Rolscreen as she enjoyed the work and 
 
            earned $7.00 per hour.  She only earned $4.95 per hour at 
 
            the nursing home.
 
            
 
                 Claimant's work at Rolscreen involved repetitive use of 
 
            her wrists, hands and arms.  She operated an electronic 
 
            press, radial arm saw, and puttying windows.  Claimant said 
 
            that she experienced most of her problems while operating 
 
            the radial arm saw.
 
            
 
                 On or about March 10, 1989, claimant injured her right 
 
            arm from cumulative trauma as a result of her repetitive 
 
            work at Rolscreen.  This injury arose out of and in the 
 
            course of claimant's employment at Rolscreen.  Beginning in 
 
            February 1989, claimant began to experience numbness and 
 
            tingling along with a severe stabbing pain in the hands, 
 
            wrists and arms.  Upon an initial diagnosis of carpal tunnel 
 
            syndrome and a ganglion cyst, claimant received her first 
 
            treatment from a Dr. Adams (first name and specialty 
 
            unknown).  When conservative care failed to alleviate the 
 
            symptoms, claimant left work on March 10, 1989 to undergo 
 
            carpal tunnel release and ganglion removal surgery.  
 
            Claimant has not returned to work at Rolscreen since March 
 
            10, 1989.
 
            
 
                 Although claimant alleges other injury dates, all of 
 
            her claims with reference to these injury dates arise from 
 
            the same injury process and complaints of hand, wrist and 
 
            arm pain while working for Rolscreen in the winter and 
 
            spring of 1989.  The date chosen herein as the injury date 
 
            is the time when claimant left her work at Rolscreen due to 
 
            her injury.  This date is not significantly different than 
 
            the first date alleged of March 12, 1989.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 After the surgery claimant's hand, wrist and arm pain 
 
            complaints failed to improve and she sought and received 
 
            additional care from Ronald Bergman, D.O., a specialist in 
 
            hand surgery.  Dr. Bergman kept claimant off work for an 
 
            additional time.  He opined that claimant's continued symp
 
            toms were a recurrence of carpal tunnel syndrome and he sug
 
            gested additional release surgery.  Claimant chose not to 
 
            undergo this second surgery and Dr. Bergman released 
 
            claimant from his care in November 1989 with a three percent 
 
            impairment rating to the right extremity.  He also released 
 
            claimant to return to work without restrictions.  This 
 
            appears a little inconsistent with his impairment rating and 
 
            claimant's obvious ongoing symptomatology.
 
            
 
                 There is no physician in this case that disputes that 
 
            the symptoms claimant experienced in 1989 were causally 
 
            related to the work at Rolscreen.  This was also the view of 
 
            Rolscreen as they did not allow her to return to work even 
 
            after her release from care by Dr. Adams and Dr. Bergman 
 
            because her work at Rolscreen was too repetitive for 
 
            claimant.
 
            
 
                 Claimant testified that she never recovered from her 
 
            pain after the carpal tunnel release and her symptoms of 
 
            right hand, wrist and arm pain continued and worsened in 
 
            1990.  However, she did return to work at the nursing home 
 
            on January 7, 1990 without any physician imposed work 
 
            restrictions.  She continued to work as a nurse's aide until 
 
            February 1992, at which time she left due to chronic and 
 
            continuous pain in not only her right hand, wrist and arm; 
 
            but also in her right shoulder, neck and back.  Claimant 
 
            first complained of shoulder pain in August 1990 when she 
 
            requested and received an evaluation at defendants' expense 
 
            from Scott Neff, D.O., an orthopedic surgeon.  Claimant tes
 
            tified that she did not seek treatment between her release 
 
            from Dr. Bergman in November 1989 and her visit to Dr. Neff 
 
            because she did not believe defendants would pay for it.  
 
            Whether or not claimant requested defendants for an earlier 
 
            exam is not clear in the record.  Dr. Neff felt that 
 
            claimant's complaints of pain indicated possible myofascial 
 
            pain syndrome (hereinafter referred to as MPS) and thoracic 
 
            outlet syndrome (hereinafter referred to as TOS).  Dr. Neff 
 
            however opined that her MPS or TOS complaints were not 
 
            related to her work at Rolscreen.  Little weight was given 
 
            to this opinion as Dr. Neff's letter of September 26, 1990 
 
            to the defendant insurer makes reference to information pro
 
            vided to him by the insurer which is not set forth in the 
 
            record.  Therefore, there is no way to determine if the 
 
            opinion is based upon correct information.
 
            
 
                 Claimant then suffered an aggravation injury to her 
 
            right arm and shoulder while working at the nursing home in 
 
            October 1990.  Claimant testified that she aggravated her 
 
            shoulder and back from this injury while assisting a resi
 
            dent in walking.  Claimant returned to Dr. Bergman who con
 
            tinued to diagnose recurrent carpal tunnel.  Despite the 
 
            pain, claimant continued to work until February 28, 1991 at 
 
            which time she left due to pain upon the recommendation of 
 
            her family physician.  In March 1991, she was evaluated by a 
 
            neurologist, A. D. Socarras, M.D. He could find no clinical 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            evidence of cervical radiculopathy or thoracic outlet syn
 
            drome.  He stated that claimant's symptoms are suggestive of 
 
            carpal tunnel syndrome but noted a recent EMG showing no 
 
            abnormality.  He felt she had underlying psychological 
 
            depression and prescribed medication to treat the depres
 
            sion.
 
            
 
                 Claimant was then evaluated in April 1991 by Karen 
 
            Kienker, M.D., a board certified physician in physical 
 
            medicine and rehabilitation.  After extensive review of 
 
            claimant's history and detailed examination, Dr. Kienker 
 
            diagnosed thoracic outlet syndrome and myofascial pain of 
 
            the neck and upper back.  She did not believe that the orig
 
            inal carpal tunnel diagnoses by Drs. Adams and Bergman were 
 
            correct.  She then recommended a treatment program for these 
 
            problems involving physical therapy and pain management over 
 
            the next several weeks.  Physical therapy was discontinued 
 
            in June 1991 and Dr. Kienker referred claimant for pain man
 
            agement to Craig DeBois, M.D., at the Iowa Methodist Medical 
 
            Pain Center for evaluation and treatment.
 
            
 
                 The focus of Dr. DeBois's treatment was on neck and low 
 
            back pain complaints.  Dr. DeBois attributed much of the low 
 
            back pain to degenerative changes in the spine.  He stated 
 
            that the cervical pain was possibly the result of TOS but 
 
            his findings were not typical for such a condition. Dr. 
 
            DeBois also found claimant to be suffering from deep 
 
            depression as a result of the chronic pain, sleep 
 
            disturbances and sedative medications.  He therefore 
 
            recommended additional physical therapy, biofeedback 
 
            treatment and psychological evaluation.  After several weeks 
 
            of outpatient pain management therapy, Dr. DeBois in 
 
            September 1991 concluded that claimant had myofascial pain 
 
            syndrome exacerbated by depression in a "vicious cycle."
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            He stated that in-patient care was needed to break this 
 
            cycle.  At this time, claimant was evaluated by Peter Wirtz, 
 
            M.D., another orthopedic surgeon retained by defendants.
 
            
 
                 Dr. Wirtz relates claimant's arm symptomatology to the 
 
            original carpal tunnel syndrome but not the neck and low 
 
            back pain.  He felt that the neck and back pain would bene
 
            fit from additional treatment in the form of an exercise 
 
            program but that the carpal tunnel problem would not require 
 
            pain management.  Based upon Dr. Wirtz's views, defendants 
 
            then discontinued authorization for additional treatment.
 
            
 
                 In her last report of November 1991, Dr. Kienker main
 
            tains her view that claimant suffers from TOS and rates 
 
            claimant's impairment as 70 percent of the arm or 42 percent 
 
            of the whole body plus 9 percent for restricted motion of 
 
            the neck and shoulder.  She also imposes permanent work 
 
            restrictions consisting of only occasional lifting to 10 
 
            pounds;  work activity which alternates sitting, standing 
 
            and walking; limited head movements; no repetitive motion of 
 
            the shoulder, elbow and wrist; avoidance of bending and 
 
            twisting; and avoidance of cold environments.  She suggests 
 
            vocational retraining and refers claimant to the state voca
 
            tional rehabilitation department.  However, she also, along 
 
            with Dr. DeBois, recommends in-patient pain management care 
 
            that could allow claimant to cope with her pain and increase 
 
            her activity level.
 
            
 
                 Finally, Dr. Kienker causally related all of claimant's 
 
            problems to the work at Rolscreen and stated that all of 
 
            claimant's symptoms were present prior to claimant's return 
 
            to work at the nursing home in January 1990.  In her 
 
            reports, she fully documented claimant's history and she was 
 
            aware that claimant's first shoulder complaint was to Dr. 
 
            Neff in August 1990.
 
            
 
                 The views of Dr. Kienker are the most convincing and 
 
            are given the greatest weight.  Her reports were the most 
 
            detailed and they clearly coincided with claimant's credible 
 
            testimony.  Her educational background and experience is 
 
            impressive.  She is a specialist in physical medicine and 
 
            appears to be the most qualified in the treatment of muscu
 
            lar pain problems such as those experienced by claimant.  
 
            The value of the contrary views of Dr. Wirtz as a one time 
 
            evaluator hired by defendants is quite limited.
 
            
 
                 Therefore, it is found that the permanent impairment of 
 
            March 10, 1989 extends beyond the arm and into the body as a 
 
            whole.  This is based upon the diagnosis of TOS involving 
 
            impairment of an area of the body located in the upper truck 
 
            between the neck and shoulder.  Claimant also has a general
 
            ized myofascial chronic pain syndrome and resulting psycho
 
            logical depression.  Although a portion of this pain may be 
 
            attributable to a non-work-related low spine problem, a 
 
            major significant factor contributing to this pain and 
 
            depression syndrome remains to be TOS and claimant's shoul
 
            der and upper extremity problems.  Therefore, the myofascial 
 
            pain syndrome and psychological depression is likewise found 
 
            to have been caused by the work injury of March 10, 1989.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 As a result of the injury of March 10, 1989, claimant 
 
            was totally disabled from March 10, 1989 through November 
 
            22, 1991 except for the period of time she worked at the 
 
            nursing home from January 7, 1990 through February 28, 1991.  
 
            It is found that claimant reached maximum healing on 
 
            November 22, 1991 because Dr. Kienker on that date rated 
 
            claimant's impairment and imposed permanent activity 
 
            restrictions.
 
            
 
                 Therefore, it is found that the work injury of March 
 
            10, 1989 was a cause of a significant permanent impairment 
 
            to the body as a whole.  Claimant had no prior impairment.  
 
            The exact percentage of impairment loss is not important to 
 
            a loss of earning capacity for industrial disability cases.  
 
            More important to such an analysis are the activity restric
 
            tions imposed by Dr. Kienker.  As a result of these restric
 
            tions, claimant's medical condition prevents her from 
 
            returning to her former work at Rolscreen or any other work 
 
            requiring claimant to violate her work restrictions, includ
 
            ing work as a nurse's aide in a nursing home where heavy 
 
            lifting is required.  Claimant's only past work history has 
 
            been either at Rolscreen or as a nurse's aide.  Rolscreen 
 
            failed to offer a return to work in any capacity and has 
 
            failed to offer any vocational rehabilitation services to 
 
            claimant.
 
            
 
                 On the other hand, claimant is relatively young at age 
 
            29 and is a high school graduate.  She appeared intelligent 
 
            and articulate at hearing.  Claimant has not shown that she 
 
            is incapable of sedentary office type work.  Retraining 
 
            appears to be a viable alternative.  However, claimant today 
 
            remains unemployed despite an effort to find suitable work 
 
            in the area of her residence.
 
            
 
                 Therefore, after examination of all of the factors of 
 
            industrial disability, it is found as a matter of fact that 
 
            the work injury of March 10, 1989 was a cause of a 40 per
 
            cent loss of earning capacity.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 I.  Defendants, for reasons that are not apparent, 
 
            raised an affirmative defense in the prehearing report of 
 
            occupational disease.  It has been recently decided by this 
 
            agency that carpal tunnel syndrome, categorically, is to be 
 
            compensated as an injury under Chapter 85 of the Iowa Code, 
 
            not as an occupational disease under Chapter 85A.  Noble v. 
 
            Lamoni Products, File Nos 857575 & 851309 (Appeal Decision, 
 
            May 7, 1992).  In any event, it was found in this case that 
 
            the injury extended into the body as a whole.  Therefore, 
 
            the issue of injury or disease appears moot.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant received an injury arising out 
 
            of and in the course of employment.  The words "out of" 
 
            refer to the cause or source of the injury.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury.  See generally, Cedar Rapids Community Sch. 
 
            v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An employer 
 
            takes an employee subject to any active or dormant health 
 
            impairments. A work connected injury which more than 
 
            slightly aggravates the condition is considered to be a per
 
            sonal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 
 
            106 N.W.2d 591 (1961), and cases cited therein.
 
            
 
                 It is not necessary that claimant prove his disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that the disability developed gradually 
 
            or progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever Court also held that the date of injury 
 
            in gradual injury cases is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever the injury 
 
            date coincided with the time claimant was finally compelled 
 
            to give up his job.  This date was then used by the Court to 
 
            determine rate and the timeliness of claimant's claim under 
 
            Iowa Code section 85.26 and notice under Iowa Code section 
 
            85.23.
 
            
 
                 In the case sub judice, the fighting issue was not the 
 
            occurrence of a work injury but the nature and extent of 
 
            such an injury.  Also, this agency may choose an injury date 
 
            other than those alleged to conform to the facts in a cumu
 
            lative trauma case.  McCoy v. Donnaldson Company, Inc., No. 
 
            752670 (Appeal Decision, April 28, 1989).
 
            
 
                 II.  As the claimant has shown that the work injury was 
 
            a cause of a permanent physical impairment or limitation 
 
            upon activity involving the body as a whole, the degree of 
 
            permanent disability must be measured pursuant to Iowa Code 
 
            section 85.34(2)(u).  However, unlike scheduled member dis
 
            abilities, the degree of disability under this provision is 
 
            not measured solely by the extent of a functional impairment 
 
            or loss of use of a body member.  A disability to the body 
 
            as a whole or an "industrial disability" is a loss of earn
 
            ing capacity resulting from the work injury.  Diederich v. 
 
            Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 
 
            (1935).  A physical impairment or restriction on work activ
 
            ity may or may not result in such a loss of earning capac
 
            ity.  Examination of several factors determines the extent 
 
            to which a work injury and a resulting medical condition 
 
            caused an industrial disability.  These factors include the 
 
            employee's medical condition prior to the injury, immedi
 
            ately after the injury and presently; the situs of the 
 
            injury, its severity and the length of healing period; the 
 
            work experience of the employee prior to the injury, after 
 
            the injury and potential for rehabilitation; the employee's 
 
            qualifications intellectually, emotionally and physically; 
 
            earnings prior and subsequent to the injury; age; education; 
 
            motivation; functional impairment as a result of the injury; 
 
            and inability because of the injury to engage in employment 
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985).
 
            
 
                 In the case sub judice, it was found that claimant suf
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            fered a 40 percent loss of her earning capacity as a result 
 
            of the work injury.  Such a finding entitles claimant to 200 
 
            weeks of permanent partial disability benefits as a matter 
 
            of law under Iowa Code section 85.34(2)(u) which is 40 per
 
            cent of 500 weeks, the maximum allowable number of weeks for 
 
            an injury to the body as a whole in that subsection.
 
            
 
                  Claimant's entitlement to permanent partial disability 
 
            also entitles her to weekly benefits for healing period 
 
            under Iowa Code section 85.34 from the date of injury until 
 
            claimant returns to work; until claimant is medically capa
 
            ble of returning to substantially similar work to the work 
 
            she was performing at the time of injury; or, until it is 
 
            indicated that significant improvement from the injury is 
 
            not anticipated, whichever occurs first.  Given the findings 
 
            as to time lost and the date claimant reached maximum heal
 
            ing, healing period benefits will be awarded accordingly.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant two hundred (200) 
 
            weeks of permanent partial disability benefits at a rate of 
 
            one hundred ninety-one and 72/l00 dollars ($191.72) per week 
 
            from November 23, 1991.
 
            
 
                 2.  Defendants shall pay to claimant healing period 
 
            benefits from March 10, 1989 through January 16, 1990 and 
 
            from February 29, 1991 through November 22, 1991, at the 
 
            rate of one hundred ninety-one and 72/l00 dollars ($191.72) 
 
            per week.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for 
 
            weekly benefits previously paid.
 
            
 
                 4.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 5.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
                 Signed and filed this ____ day of July, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Philip F. Miller
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            Attorney at Law
 
            Saddlery Building, Suite 200
 
            309 Court Avenue
 
            Des Moines, Iowa  50309
 
            
 
            Mr. D. Brian Scieszinski
 
            Attorney at Law
 
            801 Grand Avenue
 
            Suite 3700
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1803
 
                                                 Filed July 15, 1992
 
                                                 LARRY P. WALSHIRE
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            STACY L. MONTGOMERY,          :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :       File Nos. 919123;
 
                                          :        979225; 979226
 
            ROLSCREEN,                    :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL INS. CO.,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.