BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
GLENDA EDENBURN,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                           File No. 980076
 
FOOD SERVICE & DISTRIBUTING  
 
COMPANY, INC.,                          A R B I T R A T I O N
 
          
 
     Employer,                             D E C I S I O N
 
          
 
and       
 
          
 
ALLIED GROUP, 
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
          
 
________________________________________________________________
 
                      STATEMENT OF THE CASE
 
 
 
This case came on for hearing on March 1, 1995, at Burlington, 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 October 10, 1990.  The record in the proceeding 
 
consists of the testimony of the claimant, Brendan Markey and joint 
 
exhibits A through E.
 
 
 
                            ISSUES
 
 
 
The issues for resolution are:
 
 
 
Whether an injury arose out of and in the course of claimant's 
 
employment on October 10, 1990.
 
 
 
Whether there is any causal connection as to claimant's alleged 
 
permanent disability and the alleged October 10, 1990 injury.
 
 
 
The extent of claimant's permanent disability and entitlement to 
 
disability benefits, if any.
 
 
 
An 85.27 medical benefits issue, the issue being causal connection and 
 
reasonable and necessary.  The amount in dispute being $1,693.65, 
 
defendant contending the medical had nothing to do with claimant's 
 
injury.
 
 
 
                       FINDINGS OF FACT
 
 
 
The undersigned deputy having heard the testimony and considered all 
 
the evidence finds that:
 
 
 
Claimant is 52 years old.  She began working for the defendant 
 
employer, who is also known as Automatic Vending Company, in August 
 
1985.  She indicated she had no injuries, physical problems or 
 
restrictions at that time and was able to do her work.  
 
Claimant acknowledges she broke her arm in the eighth grade, when she 
 
was 12 to 13 years old, but contends she fully recovered and never had 
 
restricted activity to her right arm.
 
 
 
Claimant described the nature of her work, which was making sandwiches 
 
and desserts at a sandwich and dessert table.  She also cut up lettuce 
 
for salads and made cakes and cookies during part of her employment 
 
with defendant employer.  The nature of defendant's business is making 
 
food for vending machines and cafeterias.
 
 
 
Claimant testified that she first noticed right arm, shoulder and neck 
 

 
 
 
 
 
 
 
 
 
problems to her body about one and one-half months after she started 
 
working at defendant employer.  Claimant then indicated that three to 
 
four months before her surgery in July 1988, she was having problems.  
 
It appears this surgery involved median nerve damage and carpal tunnel. 
 
 
 
 Claimant made no claim for workers' compensation as claimant did not 
 
think it was work related.  Claimant returned to work in March 1989 and 
 
contends she had no restrictions and was able to return to the work she 
 
was doing.  Claimant further described the nature of work and what she 
 
does in her work, which includes sealing; putting meat and lettuce on 
 
bread; wrapping; etc.  Claimant indicated that in 1989 she started 
 
using a sealing machine which they did not have available prior to that 
 
time.  She contends this caused her arm to swell up and hurt; it also 
 
caused her shoulder and neck to hurt.  Claimant described the various 
 
medical attention she received and the limitations she had at different 
 
times as far as lifting, repetitive motion, etc.
 
 
 
Claimant initially indicated that when she was on limited duty working 
 
six hours a day she had to do enough work as if she had worked eight 
 
hours.  Only through cross-examination and finding reason to what she 
 
had said, it is obvious that claimant worked six hours and did six 
 
hours of work.  When she left the sandwich table to go home after six 
 
hours there were others remaining to do work for their additional two 
 
hours.  
 
 
 
Claimant quit her job August 14, 1992.  She contended she couldn't 
 
handle the work any more as her arm and shoulder would swell up and 
 
were hurting.   She had neck pains and headaches.  Claimant states she 
 
is now working for All for One, which is a dollar store, as a sales 
 
clerk and also is on call as an activity person for a nursing home.  
 
She contends she does not use her right arm, at least continuously, and 
 
is able to do the work at her current job, but her shoulder and neck 
 
were giving her problems.  
 
 
 
On cross-examination claimant was asked concerning the original 
 
fracture of her right forearm 30 years ago which had to be refractured 
 
two times after that and set with pins.  Exhibit B, page 2, reflects 
 
that claimant has had problems over many years since the fracture 30 
 
years ago and that she had additional median nerve with carpal tunnel 
 
release and release of the pronator teres and superficialis swing 
 
proximally, in July 1988.  She acknowledges she made no claim for that 
 
particular injury or event.  The record indicates, as well as 
 
claimant's testimony, that after she quit her job with the defendant 
 
employer in August 1992, her problems were basically alleviated or she 
 
had only minimal problems.
 
 
 
Claimant acknowledged that when she began working for All for One her 
 
problems increased with the new job as a cashier.  Also in December 
 
1991, she indicated that she was also doing more sewing.  (Joint 
 
Exhibit 2, page 20)  Claimant again acknowledged that she was not 
 
having problems again until she began working at All for One as a 
 
cashier.
 
 
 
Claimant does not remember being offered a Case Cafeteria job before 
 
quitting defendant employer.  She acknowledged that no one at defendant 
 
employer said she had to quit or that she would be discharged.  She 
 
acknowledges she returned to work eight hours per day before she quit.  
 
(Jt. Ex. D, p. 3)
 
 
 
It appears to the undersigned this claimant has had problems for many 
 
years and that they originally began when she had her serious arm 
 
injury approximately 30 years ago.  There is no question that 
 
repetitive work affects, reactivates or agitates claimant's arm 
 
condition and when this is aggravated, she has pains in other parts of 
 
her body (in this case, her neck and shoulder).
 
 
 
The record is clear that when claimant quit her job with the defendant 
 
employer her problems eased and were basically alleviated, and then 
 
when she began work again for All for One, they returned.  It is 
 
obvious that claimant must be careful of doing repetitive work; but the 
 
undersigned finds that this condition is not because of an injury 
 
cumulative or other wise at the defendant employer, but because of a 
 
condition she has had over the years due to her original injury 30 
 
years ago.
 

 
 
 
 
 
 
 
 
 
The undersigned questions why claimant left this job.  It seems that 
 
the employer was not only accommodating her, but was going to whatever 
 
extremes necessary to make it easier and simpler for the claimant.  It 
 
doesn't seem like the job she had was that strenuous in nature anyway, 
 
but the employer was accommodating her.  The undersigned further finds 
 
that claimant's work at defendant employer did not substantially and 
 
materially heighten claimant's pre-existing condition to any extent of 
 
causing any permanent impairment or disability.  When claimant would 
 
leave her job or work a few hours her condition improved.  Claimant's 
 
work at All for One irritated claimant's condition which the 
 
undersigned believes is agitating a condition originally begun 
 
approximately 30 years ago.  The undersigned finds that claimant did 
 
have a temporary period in which her condition was aggravated and 
 
claimant received 25.286 weeks of temporary partial benefits and one 
 
week of temporary total disability benefits.  The undersigned believes 
 
this is all that claimant is entitled to.
 
 
 
                      CONCLUSIONS OF LAW
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the alleged injury actually occurred and that it arose 
 
out of and in the course of employment.  McDowell v. Town of 
 
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 
 
261 Iowa 352, 154 N.W.2d 128 (1967).  The words "arising out of" refer 
 
to the cause or source of the injury.  The words "in the course of" 
 
refer to the time, place and circumstances of the injury.  Sheerin v. 
 
Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 
 
N.W.2d 283 (Iowa 1971).
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the injury is a proximate cause of the disability on 
 
which the claim is based.  A cause is proximate if it is a substantial 
 
factor in bringing about the result; it need not be the only cause.  A 
 
preponderance of the evidence exists when the causal connection is 
 
probable rather than merely possible.  Blacksmith v. All-American, 
 
Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 
 
215 N.W.2d 296 (Iowa 1974).
 
 
 
The question of causal connection is essentially within the domain of 
 
expert testimony.  The expert medical evidence must be considered with 
 
all other evidence introduced bearing on the causal connection between 
 
the injury and the disability.  The weight to be given to any expert 
 
opinion is determined by the finder of fact and may be affected by the 
 
accuracy of the facts relied upon by the expert as well as other 
 
surrounding circumstances.  The expert opinion may be accepted or 
 
rejected, in whole or in part.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 
 
1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
While a claimant is not entitled to compensation for the results of a 
 
preexisting injury or disease, its mere existence at the time of a 
 
subsequent injury is not a defense.  Rose v. John Deere Ottumwa Works, 
 
247 Iowa 900, 76 N.W.2d 756 (1956).  If the claimant had a preexisting 
 
condition or disability that is materially aggravated, accelerated, 
 
worsened or lighted up so that it results in disability, claimant is 
 
entitled to recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 
 
112 N.W.2d 299 (1961).
 
 
 
It is further concluded that claimant incurred a temporary aggravation 
 
of her right upper extremity which arose out of and in the course of 
 
her employment on October 10, 1990, causing claimant to incur 25.286 
 
weeks of temporary partial disability and one week of temporary total 
 
disability at the rate of $120.15.  
 
 
 
It is further concluded that claimant incurred no permanent impairment 
 
to her right upper extremity nor to her body as a whole.
 
 
 
It is further concluded that the medical expenses in dispute amounting 
 
to $1,693.65 were incurred not as a result of any injury arising out of 
 
and in the course of claimant's employment, and therefore defendants 
 
are not responsible for payment of said sum.
 
 
 
                                ORDER
 
 
 
THEREFORE IT IS ORDERED THAT:
 

 
 
 
 
 
 
 
 
 
 
 
 
 
Claimant takes nothing further from these proceedings.  Claimant has 
 
received all she is entitled to.  
 
 
 
Defendants will be given credit for the twenty-five point two eight six 
 
(25.286) weeks of temporary partial disability and one (1) week of 
 
temporary total disability that defendants paid to claimant at the rate 
 
of one hundred twenty and 15/100 dollars ($120.15).
 
 
 
The costs are to be divided equally among the parties.
 
 
 
Signed and filed this _____ day of March, 1995.        
 
                                 ______________________________          
 
                                 BERNARD J. O'MALLEY      
 
                                 DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies to:
 
 
 
Mr. William Bauer
 
Attorney at Law
 
100 Valley Street
 
PO Box 517
 
Burlington, Iowa 52601
 
 
 
Ms. Deborah A. Dubik
 
Attorney at Law
 
111 East Third Street-Ste 600
 
Davenport, Iowa 52801-1596
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                       5-1100; 5-1108
 
                                       5-1801; 5-1801.1;
 
                                       5-2500
 
                                       Filed March 28, 1995
 
                                       BERNARD J. O'MALLEY
 
 
 
           BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
GLENDA EDENBURN,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                        File No. 980076
 
FOOD SERVICE & DISTRIBUTING  
 
COMPANY, INC.,                      A R B I T R A T I O N
 
          
 
     Employer,                         D E C I S I O N
 
          
 
and       
 
          
 
ALLIED GROUP, 
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
          
 
________________________________________________________________
 
5-1100; 5-1108; 5-1801; 5-1801.1; 5-2500
 
Found claimant incurred an injury that arose out of and in the course 
 
of claimant's employment causing 25.286 weeks of temporary partial 
 
disability and one week of temporary total disability.  Claimant was 
 
not allowed $1,693.65 for medical.
 
Claimant recovered nothing more than she had already been paid.
 
 
 
 
 
 
         
 
         
 
         
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         DEBBIE ELLIS,    
 
                     
 
              Claimant,   
 
                     
 
         vs.                              File Nos. 980097/993913
 
                                                    989779
 
         LIBERTY MUTUAL INSURANCE   
 
         COMPANY,    
 
                                                A P P E A L
 
              Employer,   
 
                                             D E C I S I O N
 
         and         
 
                     
 
         LUMBERMENS MUTUAL CASUALTY      
 
         COMPANY,    
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         July 29, 1993 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Claimant shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1993.
 
         
 
         
 
         
 
         
 
                                         ________________________________
 
                                                 BYRON K. ORTON
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Steven C. Jayne
 
         Attorney at Law
 
         5835 Grand Ave., Ste 201
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Joseph S. Cortese II
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa 50309
 
         
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed November 30, 1993
 
                                          Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            DEBBIE ELLIS,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.                               File Nos. 980097/993913
 
                                                        989779
 
            LIBERTY MUTUAL INSURANCE   
 
            COMPANY,    
 
                                                    A P P E A L
 
                 Employer,   
 
                                                  D E C I S I O N
 
            and         
 
                        
 
            LUMBERMENS MUTUAL CASUALTY      
 
            COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1803
 
            
 
                 Claimant sustained an injury to her right wrist, which 
 
            aggravated a preexisting psychological condition.
 
            
 
                 Relying on a recent Iowa Supreme Court case, claimant 
 
            proved entitlement to industrial disability benefits, and 
 
            was awarded 100 weeks of permanent partial disability 
 
            benefits.  See, Mortimer v. Fruehauf.  
 
            
 
                 Claimant's profile includes:  34 years of age; little 
 
            motivation to return to work; severe lifting restriction of 
 
            five pounds; limited grasping and grabbing ability; and, 
 
            fragile mental state.
 
            
 
            
 
 
            
 
           
 
            
 
            
 
            
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            DEBBIE ELLIS,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                            File Nos. 980097 989779
 
            LIBERTY MUTUAL INSURANCE                         993913
 
            COMPANY,  
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                              D E C I S I O N
 
            and       
 
                      
 
            LUMBERMAN'S MUTUAL CASUALTY   
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                             STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by 
 
            claimant, Debbie Ellis, against her former employer, Liberty 
 
            Mutual Insurance Company and its insurance carrier, 
 
            Lumberman's Mutual Casualty Company.  Ms. Ellis filed three 
 
            petitions with injury dates of March 19, 1991 (agency file 
 
            number 980097), March 29, 1991 (agency file number 993913) 
 
            and April 8, 1991 (agency file number 989779).  The matter 
 
            came on for hearing before the undersigned deputy industrial 
 
            commissioner on May 25, 1993 at Des Moines, Iowa.
 
            
 
                 The record in this case consists of testimony from the 
 
            claimant; claimant's husband, Leonard Ellis; Jeff Johnson, a 
 
            vocational rehabilitation expert; and, Susan White, a 
 
            vocational rehabilitation expert.  
 
            
 
                                      ISSUES
 
            
 
                 The parties submit the following issues for resolution:
 
            
 
                 1.  Whether any of the injuries caused permanent 
 
            disability; 
 
            
 
                 2.  Whether claimant has sustained a scheduled member 
 
            injury, or an injury to the body as a whole; 
 
            
 
                 3.  Whether some of the medical treatment incurred was 
 
            reasonable and necessary; 
 
            
 
                 4.  Whether some of the medical treatment incurred was 
 
            causally connected to the work injuries; and, 
 
            
 
                 5.  Whether some of the medical expenses incurred were 
 
            authorized by the defendants.
 
            
 
                                 FINDINGS OF FACT
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The undersigned deputy, having reviewed all of the 
 
            evidence received, finds the following facts:
 
            
 
                 Claimant, Debbie Ellis was 34 years of age at the time 
 
            of the hearing.  She is married and has one daughter, age 
 
            15.  
 
            
 
                 Claimant completed the ninth grade in school, and 
 
            earned her General Equivalency Degree in 1985.  She has also 
 
            taken courses in an administration clerk program.
 
            
 
                 Ms. Ellis has a varied work history.  From 1976 through 
 
            1986, she worked primarily in the janitorial services field.  
 
            For a brief period of time, she worked for Farm Bureau in 
 
            the filing department, and then worked as a private 
 
            housekeeper, performing such tasks as dusting, vacuuming, 
 
            washing dishes, gardening, cleaning cars and taking care of 
 
            animals.
 
            
 
                 In 1987, claimant began working for the defendant 
 
            employer.  Her first position was as a file clerk, a 
 
            position she held for approximately two years.  Her duties 
 
            included filing all paperwork, inserting materials into 
 
            files, locating files, and photocopying documents.  
 
            
 
                 In January of 1989, claimant became a payment processor 
 
            on the SUS desk.  In this position, she processed all 
 
            workers' compensation claims which did not involved loss of 
 
            time from work.  She received on-the-job-training in 
 
            computer skills, and her primary duties included keying in 
 
            information from first reports of injury, including medical 
 
            notations and other notes from the claims forms.  Claimant's 
 
            functions included recitation of medical payments, provider 
 
            names and type of medical services were rendered.  During 
 
            her testimony, claimant indicated that 7 hours and 15 
 
            minutes of her 8 hour day were spent working at a computer 
 
            keyboard entering or typing in information.  The official 
 
            job description is entered into evidence as Claimant's 
 
            Exhibit 4.  A report kept by claimant's supervisor records 
 
            monthly inputs, and shows that claimant keyed in an average 
 
            of 26 SUS reports per day, or 529 per month.  This report 
 
            does not reflect the number of medical reports and bills, as 
 
            well as the number of searches for certain information were 
 
            performed by claimant.  (Claimant's Exhibit 5).  
 
            
 
                 The record shows that claimant has been cautioned by 
 
            her employer about absenteeism.  In December of 1990, she 
 
            visited the emergency room and was taken off of work for 
 
            several days due to an anxiety attack.  Claimant blamed the 
 
            attack on sinuses.  A job performance evaluation dated 
 
            January 7, 2992 reveals that claimant's problem with 
 
            attendance was discussed.
 
            
 
                 While claimant testified that she first experienced 
 
            pain, numbness and tingling in her arms in September of 
 
            1990, she first reported these symptoms to her supervisor in 
 
            March of 1991.  She reported to Richard Reel, D.O., her 
 
            family physician located at the Mercy Medical Clinic in Des 
 
            Moines, Iowa.  Medical records indicate that on March 22, 
 
            1991, she complained of pain and numbness in her right hand, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            sensations she had been experiencing for the past six 
 
            months.  Range of motions tests of the wrist were within 
 
            normal limits, and results of the Phalens and Tinels tests 
 
            were negative. The initial diagnosis was that of tendinitis, 
 
            and she was given voltaren. (Joint Exhibit 2, page 31). 
 
            
 
                 One week later, claimant returned to the clinic, and 
 
            was once again assessed as having tendinitis.  She was given 
 
            a cock-up wrist splint, Anaprox, and was told to soak her 
 
            wrist.  She was taken off of work for one week.  (Jt. Ex. 2, 
 
            p. 31)  
 
            
 
                 After several more visits to the Mercy Medical Clinic 
 
            in April, 1991, claimant began to complain of pain in her 
 
            right arm, hand and shoulder.  She was given additional 
 
            medication, was taken off of work (Jt. Ex. 2, p. 32-34) and 
 
            was referred to Timothy G. Kenney, M.D., an orthopaedic 
 
            specialist, whom she saw on April 25, 1991.  (Jt. Ex. 2, pp. 
 
            32-34, 39; Jt. Ex. 4, p. 6).  Dr. Kenney performed an 
 
            examination which showed that claimant had mild, diffuse 
 
            edema of the entire right hand, wrist and forearm.  She 
 
            displayed full range of motion of the elbow and wrist, with 
 
            slight pain on flexion.  Tinel's sign was negative, but 
 
            Phalen's sign was mildly positive on the right wrist.  He 
 
            believed that claimant had components of carpal tunnel 
 
            syndrome and forearm flexor tendinitis due to cumulative 
 
            trauma disorder.  Dr. Kenney recommended an EMG and nerve 
 
            conduction studies to evaluate the median nerve and physical 
 
            therapy.  Claimant was restricted to left-handed work only, 
 
            and begin physical therapy at the Mercy Hospital Medical 
 
            Center, where her  therapist was Janet Darling, O.T.R.  (Jt. 
 
            Ex. 4, p. 2; p. 7; p. 59).  
 
            
 
                 Progress notes from the therapist begin on page 41 of 
 
            Joint Exhibit 2.  For the next several months, claimant 
 
            underwent different modalities of treatment, including heat, 
 
            message and exercises, and eventually showed some 
 
            improvement.  (Jt. ex. 2, p. 60).  She returned to Dr. 
 
            Kenney (Jt. ex. 2, pp. 41-45), and to the Mercy Medical 
 
            Clinic (Jt. Ex. 2, pp. 35-36) in June, 1991.  On follow-up 
 
            with Dr. Kenney, claimant reported that although she felt 
 
            some improvement from the last visit, she still experienced 
 
            pain if she tried any grasping or lifting activities with 
 
            her right upper extremity.  His examination showed mild, 
 
            diffuse soft tissue swelling of the entire right hand, with 
 
            tenderness over the forearm flexors and extensors.  Range of 
 
            motion tests performed on the wrist elicited pain.  He 
 
            continued to diagnose a cumulative trauma disorder with 
 
            forearm flexor and extensor tendinitis with a component of 
 
            sympathetic dystrophy.  He recommended additional physical 
 
            therapy, and took claimant off of work, and requested a 
 
            follow-up evaluation in one month.  Two weeks later, Dr. 
 
            Kenny was removed from the case, and the insurance company 
 
            designated Senesio Misol, M.D., as the treating physician.  
 
            (Jt. Ex. 4, p. 3; pp. 8-11).  Claimant did continue physical 
 
            therapy with Ms. Darling, and these records note some 
 
            improvement. (Jt. Ex. 2, pp. 49-58).    
 
            
 
                 Claimant underwent the EMG and nerve conduction study 
 
            in July of 1991.  The results of the test were within normal 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            limits, and it was recommended that she return to "some 
 
            other form of employment where no repetitious use of the 
 
            fingers and wrist is required."  No surgical intervention 
 
            was recommended.  (Jt. Ex. 4, pp. 4-5).
 
            
 
                 In August of 1991, Dr. Misol stated that he believed 
 
            claimant suffered from "functional carpal tunnel syndrome," 
 
            and determined that she had reached maximum medical 
 
            improvement as of August 5, 1991.  He was unable to 
 
            determine any percentage of physical impairment because 
 
            there is no way to rate this type of condition under the AMA 
 
            Guides and tables.  He did state the claimant would benefit 
 
            from a job where repetitious moving of the fingers and 
 
            flexor tendons would not be required.  This would involved 
 
            no opening and closing of the fingers, and no grasping and 
 
            no lifting of more than five pounds at a time.  (Jt. Ex. 4, 
 
            p. 15). 
 
            
 
                 Apparently, claimant applied for Social Security 
 
            Disability benefits in October of 1991.  (Jt. Ex. 4, pp. 
 
            16-18).  She was denied benefits in January, March and April 
 
            of 1992, and February of 1993.  (Defendant's exhibit A).
 
            
 
                 It appears that Dr. Misol again examined claimant in 
 
            January of 1992.  His diagnosis was dynamic carpal tunnel 
 
            syndrome and flexor tendinitis.  He instructed claimant not 
 
            to lift more than five pounds and not to perform repetitive 
 
            "grasping or grabbing." (Jt. Ex. 4, p. 29-30).
 
            
 
                 In June of 1992, Dr. Misol clarified the term 
 
            "functional carpal tunnel syndrome"  (also called dynamic 
 
            carpal tunnel syndrome) by stating that this diagnosis is 
 
            made when a patient experiences numbness and pain in the 
 
            wrist and/or hand when moving the hand whereby the median 
 
            nerve is compressed by the retinacular ligament.  Dr. Misol 
 
            went on to state that he believed claimant suffered from 
 
            this condition as well as flexor tendinitis.  He believed 
 
            the condition permanent, and rendered his professional 
 
            medical opinion that the condition had been caused by 
 
            claimant's work at Liberty Mutual.  Dr. Misol stated that 
 
            claimant should lift no more than five pounds on a 
 
            repetitive basis, and would not be able to return to her 
 
            former employment duties unless the repetitive activities 
 
            and weight restrictions were observed.  He did believe that 
 
            claimant was employable.  (Jt. Ex. 4, pp. 20-21).  
 
            
 
                 In September of 1992, Dr. Misol wrote a reply letter to 
 
            the attorney representing the insurance company and 
 
            employer.  He reiterated that claimant's physical symptoms 
 
            in her wrist/hand developed when she performed repetitive 
 
            activities.  (Jt. Ex. 4, p. 24-25). 
 
            
 
                 Claimant has a long-standing history of treatment for 
 
            depression.  These records reveal that claimant has 
 
            complained of being tired, sleeplessness, headaches, crying, 
 
            and encountering much stress.  (Jt. Ex. 1; Jt. Ex. 3).
 
            
 
                 In November of 1992, James Gallagher, M.D., provided a 
 
            psychiatric evaluation for the Disability Determination 
 
            Services Bureau.  Dr. Gallagher diagnosed claimant's 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            condition as a moderate to severe degree of depression.  His 
 
            impression was that claimant was close to a psychiatric 
 
            hospitalization due to both her depression and her physical 
 
            problems.  Her tolerance for stress was poor, and claimant 
 
            was not hopeful about future employment.  He noted that 
 
            claimant was very tearful, and would have difficulties with 
 
            motivation and energy levels.  (Jt. Ex. 5, pp. 1-6).
 
            
 
                 At the request of claimant's attorney, Hector Cavallin, 
 
            M.D., a psychiatrist provided a report after his examination 
 
            of claimant on February 18, 1993.  Dr. Cavallin reviewed 
 
            claimant's medical documents, including previous psychiatric 
 
            examinations by Dr. Gallagher in 1992 and previous notes 
 
            stemming from psychiatric treatment at the McFarland Clinic 
 
            in Ames in 1978.  Dr. Cavallin notes that claimant has a 
 
            long history of chronic depression, and has been taking 
 
            Immapramine, an antidepressant, off and on since the first 
 
            diagnosis of depression in 1978, when claimant was 19 years 
 
            old.  Apparently, claimant was continuing to take this 
 
            medication at the time of the evaluation.  After examining 
 
            claimant, Dr. Cavallin diagnosed a chronic, severe 
 
            depression disorder.  He stated that in spite of the history 
 
            of chronic depression, claimant had been able to work, and 
 
            that since the diagnosis of the carpal tunnel syndrome, her 
 
            depression was aggravated and had become a major depressive 
 
            disorder.  It was his opinion that claimant was permanently 
 
            disabled, and would not be able to return to any occupation.  
 
            He believed that her level of pain and distress prevented 
 
            her from being capable of carrying out any gainful 
 
            employment.  He predicted that claimant would not be able to 
 
            attend work regularly, would suffer lapses in concentration, 
 
            and would not be able to maintain the pace of a regular 
 
            schedule.  He further surmised that claimant would not be 
 
            able to tolerate the stress of being supervised and would 
 
            become easily distracted by co-workers.  (Jt. Ex. 6).    
 
            
 
                 Dr. Gallagher provided a follow-up report in March of 
 
            1993.   He clarified that claimant suffered from both a 
 
            dysthymic disorder and a major depressive disorder, and he 
 
            stated that claimant had a significant decrease in energy 
 
            and the ability to concentrate.  Again, he believed that 
 
            both the physical problems encountered from the carpal 
 
            tunnel syndrome and the mental problems severely limited 
 
            claimant's ability to work and perform daily living 
 
            activities.  (Jt. Ex. 5, pp. 7-9).
 
            
 
                 Jeff Johnson, a rehabilitation consultant wrote a 
 
            report which was entered into the record as Joint Exhibit 7.  
 
            The report, dated March 21, 1993,  memorializes claimant's 
 
            medical history with respect to the right upper extremity, 
 
            as well as the subjective perceptions of limitations; 
 
            motivational considerations; claimant's educational 
 
            background; vocational background; and, transferable skills 
 
            possessed by claimant.  Mr. Johnson believed that claimant 
 
            could return to work as a teacher's aide, account clerk, 
 
            appointment clerk or order clerk.  It was his opinion that 
 
            claimant would be able to return only to work classified as 
 
            unskilled and sedentary.  (Jt. Ex. 7).
 
            
 
                 Susan White, a vocational consultant, also provided a 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            report detailing claimant's employability.  She was able to 
 
            meet with claimant on one occasion, and reviewed numerous 
 
            medical records and reports which outlined claimant's 
 
            condition, treatment, diagnosis and prognosis.  Ms. White 
 
            reviewed claimant's family/social background, educational 
 
            level, vocational experience and transferable skills.  She 
 
            determined that claimant was employable in many areas of the 
 
            clerical field, including positions as a check audit clerk, 
 
            document preparation for microfilm, a C.O.D. clerk, 
 
            telephone surveyor, film rental clerk and teacher's aide.  
 
            While the report delineates the number of these positions 
 
            found within Iowa and nationally, the report does not detail 
 
            how many positions are actually available for workers 
 
            looking for jobs.  The report offers that claimant has 
 
            looked in the newspaper for jobs, but has not signed up with 
 
            Job Service.  Claimant does not have a resume, but she had 
 
            called several employers about possible positions.  Claimant 
 
            was unable to remember the employers' names.  Ms. White's 
 
            report is dated April 22, 1993.  (Jt. Ex. 8).
 
            
 
                 Both experts testified at the hearing, and their 
 
            opinions did not change from those expressed in each of 
 
            their reports.
 
            
 
                 Several medical bills have not been paid.  (Cl. Ex. 
 
            9-11).
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 The parties were able to stipulate that claimant has 
 
            sustained work-related injuries on March 18, March 29 and 
 
            April 8, 1991.
 
            
 
                 The first issue, then is whether the injuries caused a 
 
            permanent disability, and, in the event she has sustained a 
 
            permanent disability, is the disability to the right upper 
 
            extremity or to the body as a whole.  
 
            
 
                 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 claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 Claimant argues several theories, including that 
 
            claimant has sustained a body as a whole injury, and thereby 
 
            the undersigned should employ Iowa Code section 85.34 (2)(u) 
 
            and 85.34 (3); or, claimant has sustained a scheduled member 
 
            injury and is permanently and totally disabled; or, that 
 
            claimant has sustained an occupational disease.  
 
            
 
                 Defendants argue that claimant's physical condition is 
 
            based on a predisposition to this type of syndrome.  They 
 
            interpret the medical reports, particularly those of Dr. 
 
            Misol's, as concluding that claimant's condition is peculiar 
 
            to claimant, and that whenever she performs repetitive work 
 
            of any type, she will experience a manifestation of pain and 
 
            discomfort.  They continue their argument be stating that 
 
            because claimant is predisposed to the condition, she did 
 
            not actually have an injury at work, but rather a 
 
            manifestation of underlying disease processes.  This is an 
 
            interesting argument considering the defendants did 
 
            stipulate that claimant sustained work injuries on each of 
 
            the three injury dates alleged by claimant.  
 
            
 
                 Claimant's last argument is disposed of easily.  It has 
 
            been determined that carpal tunnel syndrome is not an 
 
            occupational disease under Iowa Code section 85A.  See, 
 
            Noble vs. Lamoni Products, (App. Decn. No. 851309).
 
            
 
                 The following analyses addresses the remaining 
 
            arguments.
 
            
 
                 Dr. Misol has been claimant's treating physician for 
 
            the right upper extremity problem.  While he was unable to 
 
            assign a percentage of disability due to the unavailability 
 
            of an appropriate table in the AMA Guides, he was of the 
 
            opinion that claimant should avoid any type of employment 
 
            that would require her to perform repetitive grasping and 
 
            grabbing motions with her right hand, and she is not to lift 
 
            anything weighing more than five pounds.  These are 
 
            permanent restrictions. 
 
            
 
                 And, while claimant may be predisposed to this 
 
            condition depending on the type of work she performs, the 
 
            facts indicate that she was able to successfully perform her 
 
            job duties for more than two years before she complained of 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            pain and numbness in her right wrist.
 
            
 
                 The second component of claimant's condition stems from 
 
            her mental status.  This surely is to be the more difficult 
 
            analysis.  
 
            
 
                 In the past, claimant has received treatment and 
 
            therapy for her depression.  Notes dating as far back as 
 
            1978 and as recently as December of 1990, indicate that 
 
            claimant has been diagnosed with depression, and has had 
 
            accompanying impairments such as sleeplessness, tiredness, 
 
            anger and anxiety attacks.  Both Drs. Gallagher and Cavallin 
 
            have indicated that claimant's physical condition has 
 
            aggravated her mental condition, making it that much harder 
 
            for claimant to function in a job, and perhaps in her daily 
 
            living.  Neither held out much hope for claimant to return 
 
            to a normal work situation, yet neither suggested extensive 
 
            treatment, either.  
 
            
 
                 Given the evidence, it is found that claimant has 
 
            suffered a permanent disability due to the work-related 
 
            incidents in March and April of 1991.
 
            
 
                 The next issue to address is whether claimant's work 
 
            injuries are confined only to the right upper extremity, or 
 
            if they produced an injury to the body as a whole.
 
            
 
                 There is no evidence that claimant sustained an injury 
 
            to the body as a whole.  Her work did not cause the mental 
 
            impairment, but rather, the carpal tunnel syndrome, which 
 
            was caused by her work aggravated a pre-existing mental 
 
            condition.  But there has been a recent, interesting change 
 
            in case law which now governs how the agency addresses 
 
            mental conditions that result from a scheduled member 
 
            injury.  
 
            
 
                 Prior to June of 1993, it was assumed that when the 
 
            schedule was devised, the legislature took into 
 
            consideration the mental affects that were directly caused 
 
            by scheduled member losses.  But the recent Iowa Supreme 
 
            Court case of Mortimer vs. Fruehauf Corp. (No. 92-1143) (on 
 
            remand) found differently, and allowed a claimant to recover 
 
            additional benefits due to the aggravation of a preexisting 
 
            mental condition caused by a scheduled member loss.  
 
            Claimant proved an industrial disability.  Mr. Mortimer 
 
            injured his left foot while in the course of his employment.  
 
            He received benefits pursuant to the schedule, and later 
 
            filed a petition to review-reopen the case.  Mr. Mortimer 
 
            sought additional benefits to compensate him for the 
 
            depression he had as a result of the foot surgery.  While 
 
            Mortimer conceded that he had a preexisting psychological 
 
            condition, the court found that the condition had been 
 
            substantially aggravated by the work injury.  As a result, 
 
            the court concluded that claimant had sustained an 
 
            industrial disability.  
 
            Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which he is 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 Iowa 
 
            285, 110 N.W.2d 660 (1961).
 
            A finding of impairment to the body as a whole found by a 
 
            medical evaluator does not equate to industrial disability.  
 
            This is so as impairment and disability are not synonymous.  
 
            Degree of industrial disability can in fact be much 
 
            different than the degree of impairment because in the first 
 
            instance reference is to loss of earning capacity and in the 
 
            latter to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            There are no weighting guidelines that indicate how each of 
 
            the factors are to be considered.  There are no guidelines 
 
            which give, for example, age a weighted value of ten percent 
 
            of the total value, education a value of fifteen percent of 
 
            total, motivation - five percent; work experience - thirty 
 
            percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.   See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985); Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 At the time of the injury, claimant was 32 years old.  
 
            She obtained her GED in 1985.
 
            
 
                 Claimant's work history includes janitorial work and 
 
            data entry.  She has sustained a serious injury to her 
 
            wrist, which severely limits her ability to lift, grasp or 
 
            grab.  Claimant appears to have a very fragile personality, 
 
            yet she was able to function successfully as a data entry 
 
            operator for several years prior to her injury.  She earned 
 
            approximately $7.71 per hour.
 
            
 
                 The injury to her right wrist has aggravated a 
 
            preexisting psychological condition.  The combination of the 
 
            two conditions has forced claimant to terminate her work as 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            a data entry operator.  Claimant has not shown much 
 
            motivation to return to work, yet two vocational 
 
            rehabilitation experts have delineated several job 
 
            classifications that may provide work conducive to her 
 
            restrictions and limitations.  The employer has not shown 
 
            much interest in bringing claimant back into the work 
 
            environment.  
 
            
 
                 In the instant case, there is evidence that claimant is 
 
            employable.  She has not displayed a great amount of 
 
            motivation to secure other suitable employment, and while 
 
            this lack of motivation may be a direct result of the 
 
            depression, it must be considered when evaluating claimant's 
 
            overall loss.  
 
            
 
                 After considering all of the evidence, it is found that 
 
            claimant has sustained a 20 percent loss. 
 
            
 
                 Finally, the parties were unable to agree upon 
 
            entitlement to medical benefits.  
 
            
 
                 Iowa Code section 85.27 provides, in relevant part:  
 
            The employer, for all injuries compensable under this 
 
            chapter or chapter 85A, shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies therefor and shall allow reasonably 
 
            necessary transportation expense incurred for such services.
 
            
 
                 Given the foregoing points of law, and considering that 
 
            there is no evidence in the record indicating that the 
 
            employer or insurance carrier admitted liability for the 
 
            mental status of the claimant after the physical injuries 
 
            occurred, it is found that they are responsible for payment 
 
            of the psychiatric evaluations performed after the 
 
            work-related injuries occurred.  Additionally, defendants 
 
            are ordered to pay bills from Drs. Misol and Kenney.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE IT IS ORDERED:
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits totaling one hundred (100) weeks at the 
 
            rate of one hundred ninety-four and 07/100 dollars ($194.07) 
 
            per week beginning September 3, 1991.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as requested by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of July, 1993.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Ave., Suite 201
 
            Des Moines, IA  50312
 
            
 
            Mr. Joseph S. Cortese II
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, IA  50309
 
            
 
 
            
 
 
 
                               
 
 
 
 
 
                                                 5-1803
 
                                                 Filed July 29, 1993
 
                                                 Patricia J. Lantz
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DEBBIE ELLIS,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                              File Nos. 980097 989779
 
            LIBERTY MUTUAL INSURANCE                      993913
 
            COMPANY,  
 
                                               A R B I T R A T I O N
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            LUMBERMAN'S MUTUAL CASUALTY   
 
            COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-1803
 
            
 
                 Claimant sustained an injury to her right wrist, which 
 
            aggravated a preexisting psychological condition.
 
            
 
                 Relying on a recent Iowa Supreme Court case, claimant 
 
            proved entitlement to industrial disability benefits, and 
 
            was awarded 100 weeks of permanent partial disability 
 
            benefits.  See, Mortimer vs. Fruehauf.  
 
            
 
                 Claimant's profile includes:  34 years of age; little 
 
            motivation to return to work; severe lifting restriction of 
 
            five pounds; limited grasping and grabbing ability; and, 
 
            fragile mental state.
 
            
 
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            VICKI MITCHELL,     
 
                      
 
                 Claimant, 
 
                                               File No. 980259 
 
            vs.       
 
                                             A R B I T R A T I O N
 
            IBP, INC.,     
 
                                               D E C I S I O N
 
                 Employer, 
 
                 Self-Insured   
 
                 Defendant.     
 
                      
 
            ___________________________________________________________
 
                                  INTRODUCTION
 
            This is a proceeding in arbitration brought by Vicki 
 
            Mitchell, claimant, against IBP, Inc., employer and 
 
            self-insured defendant for benefits as the result of a 
 
            repetitive motion injury to claimant's upper extremities 
 
            which allegedly occurred on three different dates, January 
 
            30, 1991 (File No. 980259), April 2, 1991 (File No. 997201) 
 
            and June 6, 1991 (File No. 997202).  
 
            
 
            A hearing was held in Des Moines, Iowa, on August 16, 1993, 
 
            and the case was fully submitted at the close of the 
 
            hearing.  Claimant was represented by Robert E. McKinney.  
 
            Defendant was represented by John M. Comer.  The record 
 
            consists of the testimony of Vicki Mitchell, claimant, 
 
            Sandra Larson, medical case manager, claimant's exhibits 1 
 
            through 13 and defendant's exhibits A through J.
 
            
 
                               PRELIMINARY MATTER
 
            
 
            At the time of the hearing claimant moved to amend the 
 
            petition to exclude the left shoulder as a body part which 
 
            was injured.  The amendment to the petition was granted at 
 
            the time of the hearing.
 
            
 
                                 STIPULATIONS
 
            
 
            The parties stipulated to the following matters at the time 
 
            of the hearing.  
 
            
 
            That claimant sustained an injury on January 30, 1991, which 
 
            arose out of and in the course of employment with employer 
 
            and that it is the only injury involved in this case even 
 
            though three different petitions allege three different 
 
            injuries on three different dates and there are three 
 
            different files with three different claim numbers in this 
 
            case (Transcript pages 8-11).  
 
            That the injury of January 30, 1991, was the cause of both 
 
            temporary and permanent disability.
 
            That claimant is entitled to and has been paid temporary 
 
            disability benefits for two separate periods of time 
 
            following her two separate surgeries.  (1) From April 1, 
 
            1991 through April 16, 1991 following the right carpal 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            tunnel surgery which took place on April 2, 1991 and (2) 
 
            from May 14, 1991 through May 28, 1991 following the left 
 
            carpal tunnel surgery which took place on May 14, 1991 (Ex. 
 
            13, pp. 1 & 2).
 
            That claimant sustained an injury to both upper extremities 
 
            caused by a single accident and that she is entitled to 
 
            permanent disability benefits pursuant to Iowa Code section 
 
            85.34(2)(s).  
 
            That the proper rate of compensation in the event of an 
 
            award is $187.69 per week (Tran. p. 11).
 
            That defendant agreed to pay for the independent medical 
 
            examination at the time of hearing and therefore the expense 
 
            of this evaluation is no longer a disputed issue in this 
 
            case (Tran. p. 11).
 
            That defendant agreed to pay for the medical mileage 
 
            asserted by claimant at the time of hearing and that this 
 
            medical expense is no longer a disputed issue in this case 
 
            at this time (Tran. p. 12).
 
            That the temporary disability benefits paid to claimant 
 
            prior to hearing were paid at the rate of $176.37 per week 
 
            whereas the proper rate of compensation should have been 
 
            $187.69 per week and the parties have agreed to work out 
 
            this difference between themselves for these temporary 
 
            disability benefits without a ruling from this deputy.
 
            That in the event of an award of permanent disability 
 
            benefits that defendant is entitled to a credit for 20 weeks 
 
            of permanent partial disability benefits paid to claimant 
 
            prior to hearing at the rate of $176.37 per week in the 
 
            total amount of $3,527.40.  
 
            
 
                                      ISSUES
 
            
 
            The parties submitted the following issues for determination 
 
            at the time of the hearing.
 
            Whether claimant is entitled to additional temporary 
 
            disability benefits for the period from June 6, 1991 through 
 
            July 1, 1992 (Tran. pp. 7 & 18).
 
            Whether claimant is entitled to permanent disability 
 
            benefits, and if so the extent of benefit to which she is 
 
            entitled (Tran. p. 13).
 
            Whether defendants are entitled to assert, over the 
 
            objection of claimant, the affirmative defense that claimant 
 
            is not entitled to additional temporary disability benefits 
 
            after June 6, 1991 for the reason that employment was 
 
            available by employer that claimant was able to perform 
 
            pursuant to Iowa Code section 85.33(2) and (3) and therefore 
 
            claimant is barred from receiving additional temporary 
 
            disability benefits after June 6, 1991 (Tran. pp. 5, 13-15).  
 
            
 
                                 FINDINGS OF FACT
 
            
 
            entitlement to additional temporary disability benefits
 
            It is determined that claimant is entitled to additional 
 
            temporary disability healing period benefits for the period 
 
            from June 6, 1991 through July 1, 1992.  
 
            Claimant sustained a permanent disability in this case.  The 
 
            treating plastic and reconstructive surgeon, Thomas S. 
 
            Parks, M.D., as well as an independent evaluating physician 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            for claimant, David T. Berg, D.O., who is a doctor of 
 
            occupational medicine, both determined that claimant 
 
            sustained permanent impairment.  
 
            If an employee suffers permanent disability then the type of 
 
            temporary disability benefits are characterized as healing 
 
            period benefits.  Iowa Code section 85.34(1).  
 
            An employee is entitled to healing period benefits from the 
 
            date of the injury until the employee (1) has returned to 
 
            work, (2) has obtained maximum medical improvement or (3) it 
 
            is determined that claimant is not medically capable of 
 
            returning to substantially similar employment, whichever 
 
            occurs first.  Iowa Code section 85.34(1).  
 
            In this case none of the three foregoing conditions had been 
 
            met until Michael J. Makowsky, M.D., an occupational 
 
            medicine doctor, who provided the post surgical care to 
 
            claimant, determined that claimant had reached maximum 
 
            medical improvement on July 1, 1992 (Tran. p. 60).  He also 
 
            assessed an impairment rating at that time.
 
            Prior to that time, on January 20, 1992, Dr. Makowsky wrote, 
 
            "I have elected not to do a rating on her at this time.  I 
 
            feel she will slowly improve over time.  I plan to see her 
 
            back in about six months.  Therefore, I have determined she 
 
            has not reached maximum medical healing." (Ex. 2, p. 10).
 
            True to his word, Dr. Makowsky on July 1, 1992, wrote, "I 
 
            saw Ms. Mitchell in my office on July 1, 1992.  At that 
 
            time, I evaluated her for an impairment rating.  I have 
 
            determined she has reached maximum medical healing effective 
 
            today." (Ex. A, p. 1).
 
            Claimant was released to light duty work on May 23, 1991, 
 
            however, nothing in the statute provides that a release to 
 
            return to light duty with work restrictions constitutes a 
 
            termination of healing period.  
 
            On May 23, 1991, after the second and left carpel tunnel 
 
            surgery, Dr. Parks wrote, "... I wanted to get her using her 
 
            hand somewhat.  She said she understood.  I released her to 
 
            light duty, less than five pounds, no vibration and no 
 
            knife." (Ex. B, p. 11; Ex. 1, p. 2).  Dr. Parks explained 
 
            later that she was also restricted from repetitious motion 
 
            on that release to return to work on May 28, 1991 (Ex. B, p. 
 
            8; Ex. 1, p. 2).
 
            A release to return to work light duty with significant 
 
            restrictions cannot be equated to a return to work as that 
 
            term is used in the statute or a return to substantially 
 
            similar employment as those words are used in the statute.  
 
            Iowa Code section 85.34(1).
 
            It is clear from Dr. Parks' notes dated June 13, 1991, July 
 
            8, 1991, July 29, 1991, August 15, 1991, November 25, 1991 
 
            and December 20, 1991, that claimant had not attained 
 
            maximum medical improvement (Ex. B, pp. 1-16; Tran. pp. 
 
            56-58).  On December 30, 1991, Dr. Parks stated that his job 
 
            as a surgeon was done.  He referred claimant to Dr. Makowsky 
 
            for rehabilitation and after care with the possibility of 
 
            seeing a neurologist, a psychologist, and the eventual 
 
            determination of an impairment rating by Dr. Makowsky (Ex. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            B, p. 1).  
 
            On June 13, 1991, July 8, 1991, July 29, 1991, August 15, 
 
            1991, September 16, 1991 and November 25, 1991, Dr. Parks 
 
            was still trying to improve claimant's condition of 
 
            numbness, tingling, weakness and discomfort in both hands 
 
            and wrists by physical therapy and consultation with a 
 
            neurologist (Ex. B, pp. 2, 4-10, 15 & 16; Ex. C, pp. 1 & 2; 
 
            Ex. D, Ex. E, pp. 1 & 2; Ex. F, pp. 1-5).
 
            Dr. Makowsky saw claimant on August 21, 1991, September 4, 
 
            1991, September 18, 1991, October 10, 1991, October 25, 
 
            1991, November 12, 1991, November 14, 1991, January 13, 
 
            1992, January 20, 1992 and on July 1, 1992 (Ex. 2, pp. 
 
            1-11).  Dr. Makowsky prescribed physical therapy, work 
 
            hardening and additional EMG/NCV tests.  It is clear from 
 
            Dr. Makowsky's notes that claimant had not achieved maximum 
 
            medical improvement in his opinion until he made that 
 
            determination on July 1, 1992 (Ex. 2, p. 11; Ex. A, p.1).  
 
            Dr. Makowsky prescribed extensive physical rehabilitation 
 
            and work hardening from several sources from July of 1991 
 
            through January 1992 (Tran. p. 61; Ex. 3, pp. 1-18; Ex. C, 
 
            p.2; Ex. 4, pp. 1-3; Ex. D, p. 2; Ex. 5, pp. 1-3; Ex. 6; Ex. 
 
            7, pp. 1 & 2).
 
            Although employer did not pay weekly workers' compensation 
 
            benefits for this period of treatment by Dr. Makowsky, 
 
            nevertheless, employer did pay for all of this medical 
 
            treatment during this period of time (Tran. p. 19).
 
            On August 8, 1991, Ronald S. Simms, M.D., a neurologist, 
 
            recommended occupational therapy and anti-inflammatory drug 
 
            treatment and a repeat EMG/NCV in six months (Ex. F, p. 5).  
 
            Employer's medical records show that claimant did return to 
 
            work light duty on May 28, 1991 for right-handed work only, 
 
            no lifting over five pounds, no knife work and no vibration 
 
            work (Ex. 9, p. 11; Tran. p. 37).  Employer's medical 
 
            records show that claimant complained on June 5, 1991 of 
 
            soreness in her right wrist that began on May 31, 1991 to 
 
            June 1, 1991.  The report also shows that claimant felt that 
 
            supervisors were asking her to handle pieces of meat on the 
 
            pick lean job that weighed over five pounds (Ex. 9, p. 12).  
 
            The report shows that claimant was returned to the pick lean 
 
            job and that if the restrictions were not being met she was 
 
            to report them to the supervisor or the nurse (Ex. 9, p. 
 
            12).  
 
            The job description for the pick lean job is as follows.
 
            
 
            JOB DESCRIPTION
 
            The light duty worker is responsible for removing pieces of 
 
            fat with lean from the conveyor belt on the loin line.  This 
 
            worker stands at the conveyor belt, removing pieces of fat 
 
            with lean from the conveyor belt as it passes the 
 
            workstation.  The pieces of fat with lean weigh a maximum of 
 
            4.5 pounds.  The Light Duty employee works at his/her own 
 
            pace.  This job can be performed with one or both hands.  No 
 
            walking, climbing, or carrying is required for this job (Ex. 
 
            11, p. 1).
 
            Claimant's counsel contended that claimant quit her job with 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            employer because employer did not provide work that she was 
 
            able to perform.  Counsel contended that she was asked to 
 
            perform work that made her hands and arms become worse and 
 
            that this is the reason she gave to employer for leaving 
 
            this employment when she quit (Tran. pp. 19 & 21).
 
            Claimant herself testified that she reported that the reason 
 
            that she quit was because her hands were swollen, tingling 
 
            and hurt because of the work that the supervisors had asked 
 
            her to perform (Tran. pp. 73 & 74).  Claimant acknowledged 
 
            that she was not fired (Tran. p. 66).  
 
            Claimant related that she did perform the pick lean job 
 
            after each of her two surgeries (Tran. pp. 33-37).  Claimant 
 
            further related that most of the time she worked full-time, 
 
            eight hours per day while performing light duty work (Tran. 
 
            p. 36, 70 & 71).
 
            Claimant appears to contend that the restrictions after each 
 
            surgery were the same but that is not borne out by the 
 
            medical evidence of record in this case (Tran. pp. 36, 37 & 
 
            42; Ex. B, pp. 11 & 12).
 
            After the first surgery claimant was released to one-handed 
 
            light duty.  No weight restrictions were given (Ex. B, p. 
 
            12).  However, the job description of the pick lean job is 
 
            limited to weights of 4.5 pounds.  Claimant testified that a 
 
            supervisor took her off this job and instructed her to sort 
 
            loins which were a lot heavier.  She said the loins weighed 
 
            eight to ten pounds heavier.  Claimant asserted that she was 
 
            required to do this on approximately two occasions prior to 
 
            the surgery on the other hand (Tran. pp. 27-41).  After the 
 
            second surgery the restrictions specified light duty, less 
 
            than five pounds, no vibration, no knife and no repetitious 
 
            work (Ex. B, p. 11; Ex. B, p. 8).  Thus, claimant was not 
 
            asked to violate any restrictions after the first surgery.
 
            Claimant granted that the pick lean job fit her restrictions 
 
            after the second surgery except for the fact that it tended 
 
            to be repetitious (Tran. p. 37).  She maintained that after 
 
            the second and left surgery when she returned to the pick 
 
            lean job that it caused swelling and tingling in the right 
 
            hand which she was suppose to be able to use (Tran. p. 43).  
 
            Claimant also alleged that one day a supervisor required her 
 
            to perform the butcher boy saw job using a band saw to saw 
 
            edges off of the back bone of the hog.  She said this job 
 
            requires two hands but that she did it one-handed.  She said 
 
            that these were large bones and weighed more than pick lean 
 
            meat.  Claimant maintained that performing the butcher boy 
 
            saw job caused her right hand to swell and tingle (Tran. pp. 
 
            43-46).  Claimant averred that she asked two of her 
 
            supervisors if they had checked with the nurse and that she 
 
            was told that the nurse had okayed these other jobs that she 
 
            was asked to perform (Tran. pp. 47, 69, 71 & 72).  Claimant 
 
            further testified that at one point the nurse gave her the 
 
            impression that the supervisors had not obtained approval of 
 
            the nurse for claimant to perform jobs other than the pick 
 
            lean job (Tran. p. 74). 
 
            Claimant said that on another occasion a supervisor told her 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            to rewrap a box of loins on the cryovac machine.  She 
 
            contended that these loins weighed more than five pounds and 
 
            "It caused the same problem with the hands hurting and 
 
            swelling and tingling." (Tran. p. 48).  Claimant alleged 
 
            that on another occasion she was assigned to make boxes 
 
            which required the use of both hands and that it was 
 
            repetitive work (Tran. p. 49).  She told that on another 
 
            occasion she was instructed to grab back ribs out of a sink 
 
            and put them in a box and some of them weighed more than 
 
            five pounds.  She maintained that she did this for several 
 
            days and that it caused swelling (Tran. pp. 49-51).  
 
            Claimant asserted that on another occasion she was required 
 
            to take hams out of a vat and run them through a metal 
 
            detector and this also caused a lot of swelling (Tran. p. 
 
            51).  
 
            Claimant summarized her post surgery jobs after the second 
 
            surgery as follows, "I was assigned to pick lean.  I ran 
 
            some butcher boy saw.  I made boxes.  I sorted loins and did 
 
            back ribs." (Tran. p. 68).
 
            Claimant explained why she quit working in the following 
 
            language.
 
               Q.  All right.  Why did you leave IBP?
 
               A.  Mainly because I kept getting put on these jobs and 
 
            was told that it was okayed by the nurses' station.  Come to 
 
            find out it wasn't okayed.  When they didn't have anyone 
 
            else to put on these jobs, they put me on them.
 
               Q.  You feel that these jobs made your condition, your 
 
            injuries worse?
 
               A.  Oh, yes, it did.
 
               Q.  And you voiced those concerns to IBP; is that 
 
            correct?
 
               A.  To one of my supervisors in particular.
 
               Q.  Who was that?
 
               A.  Francis carpenter.
 
               Q.  What was Mr. Carpenter's response to all these 
 
            concerns that you voiced?
 
               A.  I didn't really get all that much response.
 
               Q.  When you voiced these concerns, did anyone at IBP 
 
            ever offer you a job that was less demanding physically?
 
               A.  Well, I was always put back on pick lean, but there 
 
            was always some supervisor like Mark or Francis or Rich that 
 
            would come and get me when they needed someone to do 
 
            something they didn't have anyone else for.
 
               Q.  And those other jobs were the ones that caused 
 
            problems?
 
               A.  Yes.  It wasn't the pick lean that caused the 
 
            problems.  It was these other ones (Tran. pp. 53 & 54).
 
            Claimant testified that she cannot perform heavy lifting 
 
            anymore and that it is not uncommon for her to drop things 
 
            very easily (Tran. pp. 65 & 66).
 
            Claimant reaffirmed that when she returned to work light 
 
            duty that she was working as many hours as the other 
 
            employees, which was about eight hours and possibly some 
 
            overtime (Tran. pp. 70 & 71).  Claimant further stated that 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            since leaving employer she has not been contacted by them to 
 
            come back to work (Tran. pp. 72 & 73).
 
            Sandra Larson, medical case manager, testified that she was 
 
            the nurse manager from July of 1991 to April of 1992, which 
 
            is within the time period which is in dispute in this case.  
 
            Larson testified that she was the nurse at the time of 
 
            claimant's injury.  She testified that the company medical 
 
            records did not show the jobs that claimant contends that 
 
            she was asked to perform other than the pick clean job.  
 
            Larson said she first learned about these jobs at the 
 
            hearing (Tran. pp. 75 & 78).
 
            Larson mentioned that the medical record on the day that 
 
            claimant quit on June 5, 1991 shows only that claimant was 
 
            concerned whether or not "... the job pick lean was meeting 
 
            her restrictions, and her main concern was the 5-pound 
 
            weight limit.  She felt that there were bigger pieces of 
 
            meat than that." (Tran. pp. 78 & 79).
 
            Larson reaffirmed that there were no quotas on the pick lean 
 
            job.  She said that anything that claimant missed went on to 
 
            become a different type of end product (Tran. p. 79).
 
            Larson testified that she was familiar with other light duty 
 
            jobs which were available to claimant such as the cooker 
 
            temp monitor which is an observation job watching gauges and 
 
            which required no use of either hand.  Another light duty 
 
            job that Larson was aware of was called knife room helper 
 
            which involves handing out knives and folding gloves (Tran. 
 
            pp. 79-81).  However, Larson admitted that the records do 
 
            not show that any of these job were offered to claimant 
 
            (Tran. p. 81).  
 
            Larson verified that the pick lean job did not violate 
 
            claimant's restrictions because it was under the 5-pound 
 
            weight limit and it involved no knives, no vibration and no 
 
            repetitive motion (Tran. p. 81).
 
            Larson admitted that employer would have had full knowledge 
 
            of the continued treatment of claimant by Dr. parks and Dr. 
 
            Makowsky after she left the employment of employer on June 
 
            6, 1991 (Tran. pp. 84 & 85).
 
            The reasons why claimant is entitled to the additional 
 
            healing period benefits requested in this case are as 
 
            follows.  
 
            First, after claimant was taken off work for the surgeries 
 
            she was being actively treated by company authorized 
 
            physicians, Dr. Parks and Dr. Makowsky, who stated in their 
 
            medical records that they were endeavoring to improve 
 
            claimant's physical condition and to bring her to a point of 
 
            maximum medical improvement after June 6, 1991.  Armstrong 
 
            Tire & Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60, 65 
 
            (1981); Keifer v. Iowa Public Service Company, file no. 
 
            830461 (Arb. Decn., June 27, 1991) Keifer is a final 
 
            decision.  Keener v. Harrett Corporation, file number 969789 
 
            (Arb. Decn., Feb. 9, 1994).  Thus, she had not attained 
 
            maximum medical improvement.
 
            Second, the assessment of a permanent impairment rating, 
 
            which has been determined to be an indicator of maximum 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            medical healing, had not been made.  No physician in this 
 
            case had assessed a permanent impairment rating until July 
 
            1, 1992.  Thomas v. William Knudson & Sons, Inc., 349 N.W.2d 
 
            124, 126 (Ia. Ct. App. 1984); Lowe v. Iowa State 
 
            Penitentiary, file number 776977 (App. Decn., December 16, 
 
            1988); Schutt v. Riverside Book and Bible, file number 
 
            666100 (Review-Reopening Decn., January 22, 1990).
 
            Third, a release to return to light work is not equated to 
 
            "returned to work" as those words are used in the statute 
 
            nor is it in this case equated to "employment substantially 
 
            similar" as  those words are used in the statute.  Iowa Code 
 
            section 85.34(1).  Dr. Makowsky, the authorized treating 
 
            physician, said in January of 1992, that claimant had not 
 
            attained maximum medical improvement.  Furthermore, he said 
 
            he wanted to see her back again in six months (Ex. 2, p. 
 
            10).  Six months later on July 1, 1992, Dr. Makowsky 
 
            declared that claimant had attained maximum medical 
 
            improvement (Ex. 1, p. 1).  Therefore, the event that 
 
            occurred first pursuant to Iowa Code section 85.34(1) is the 
 
            determination of maximum medical improvement by Dr. Makowsky 
 
            on July 1, 1992 and that is when healing period in this case 
 
            should terminate (Ex. 1, p. 1).  As it happened, he also 
 
            assessed an impairment rating on this date.
 
            Fourth, there is no duty on the part of a permanently 
 
            injured employee to return to light duty work or work within 
 
            her restrictions.  Nor is there any obligation on the part 
 
            of an injured employee to seek out the employer and attempt 
 
            to return to light duty work or work with restrictions.  If 
 
            either the employer or insurance carrier wish to mitigate 
 
            the amount of workers' compensation benefits which they 
 
            rightfully owe to an injured employee for the full statutory 
 
            period of temporary disability healing period recovery, then 
 
            the burden is on defendants to obtain a release to return to 
 
            work light duty or with restrictions and then seek out the 
 
            employee and make an offer of light duty work or work within 
 
            the doctor's restrictions.  Morris v. Mike Brooks, Inc., 
 
            file number 891286, filed July 12, 1991 and affirmed by the 
 
            industrial commissioner in a short form affirmance on August 
 
            27, 1992.  This holding also is compatible with Iowa Code 
 
            section 85.33(2)(3)(4) with respect to temporary partial 
 
            disability.  This statement of the law is further supported 
 
            by Helmle v. Beatrice Cheese, Inc., file no 918749 (Arb. 
 
            Decn., November 27, 1991); Ellsworth v. Krause Gentle Oil 
 
            Company, file number 989938 (Arb. Decn., August 10, 1993). 
 
            Appealed to Industrial Commissioner, settled September 10, 
 
            1993.
 
            In this case claimant testified that she was required by her 
 
            supervisors to perform work which exceeded her restrictions.  
 
            The testimony of claimant is not controverted, contradicted, 
 
            rebutted or refuted by any other direct evidence.  Neither 
 
            party subpoenaed the supervisors to find out what their 
 
            testimony would be on this point.  Since the burden of 
 
            seeking out the employee and providing work that claimant 
 
            can perform is upon the employer, then the burden of proving 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            that the employee was provided work that she could perform 
 
            is also upon the employer.  Defendants did not prove that 
 
            claimant was provided work that she could perform within her 
 
            restrictions all of the time.  
 
            Fifth, a permanently injured employee is not obligated to 
 
            accept light duty work even when it is offered.  The 
 
            industrial commissioner has determined that temporary 
 
            disability healing period is not terminated even when the 
 
            employer offers light duty work to the employee which the 
 
            employee declines.  Webb v. Lovejoy Construction Co., II 
 
            Iowa Industrial Commissioner Report 430, 441 (Appeal Decn. 
 
            1981).  
 
            With respect to Iowa Code section 85.34(1) the employee is 
 
            privileged to remain off work until one of the three 
 
            conditions of that statute is met.  This was the 
 
            determination in Webb.  There is nothing in Iowa Code 
 
            section 85.34(1) or any case law decision that this deputy 
 
            is aware of that incorporates the provisions of Iowa Code 
 
            section 85.33(2)(3) or (4) into Iowa Code section 85.34(1).  
 
            Whether claimant can remain off work with respect to Iowa 
 
            Code section 85.33(2)(3)(4) will be considered in the next 
 
            section.
 
            Sixth, although (1) the date of a release to return to work, 
 
            (2) the date of an impairment rating, (3) the date a doctor 
 
            states maximum healing has occurred and (4) the date a 
 
            doctor says healing has ended have all been used at 
 
            different times to determine the termination of healing 
 
            period, nevertheless, the determination of the termination 
 
            of healing period for any particular case requires a 
 
            practical application of the facts of each case and the 
 
            existing law.  Sloan v. National Oats, file 900250 (App. 
 
            Decn., July 30, 1991); Lawyer and Higgs, Iowa Workers' 
 
            Compensation--Law and Practice, (2d ed.) section 13-3, pages 
 
            120 and 121; Collins v. K mart, file number 921081 (Arb. 
 
            Decn., March 11, 1993). 
 
            Wherefore, based upon the facts summarized above and the 
 
            legal authorities cited above it is determined that claimant 
 
            is entitled to additional temporary healing period 
 
            disability benefits for the period from June 6, 1991 the 
 
            date she left work because she was unable to perform it 
 
            through July 1, 1992 the date the treating physician 
 
            determined that she attained maximum medical healing and 
 
            also assessed a permanent impairment rating.  
 
            affirmative defense-iowa code section 85.33(2)(3)
 
            "work consistent with the employee's disability"
 
            First, it is determined that defendant is not entitled to 
 
            assert this defense in this case (Tran. p. 5, 14 & 15).
 
            Defendants first mention of this defense referring to Iowa 
 
            Code section 85.33 was at the time of the hearing.  
 
            Claimant's counsel said that he was not prejudiced insofar 
 
            as he would have performed more discovery, however, he 
 
            objected to this defense being raised for the first time at 
 
            the time of hearing (Tran. p. 14). 
 
            The prehearing conference report signed by both parties on 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            January 6, 1993, approximately eight months prior to this 
 
            hearing, did not specify that defendant was asserting this 
 
            or any other affirmative defense.  Defendant did not amend 
 
            the answer at any time prior to hearing.  
 
            The hearing assignment order at paragraph 9, Hearing Issues, 
 
            states "Unless otherwise agreed in writing, the issues to be 
 
            heard are those identified in the prehearing conference 
 
            report."  There is no such agreement in writing and 
 
            claimant's counsel objected to a determination of this issue 
 
            when it was proposed by defendant at the beginning of the 
 
            hearing.  
 
            Furthermore, asserting a new and different statutory defense 
 
            for the first time at the time of hearing is not consistent 
 
            with the Iowa Rules of Civil Procedure, the Iowa 
 
            Administrative Procedure Act, or the rules of the Industrial 
 
            Commissioner which are designed to enable counsel to be 
 
            prepared for hearing.  Both parties should be apprised of 
 
            the issues to be decided in the case in advance of the 
 
            hearing so that both parties can be prepared to meet the 
 
            issues at the time of the hearing.  
 
            Second, assuming for purposes of argument that this defense 
 
            was not barred from determination, then defendants 
 
            introduced no evidence to show that Iowa Code section 
 
            85.33(2)(3)(4) were applicable because defendants did not 
 
            show that claimant was ever offered or paid any temporary 
 
            partial disability benefits.  The undisputed evidence of 
 
            record is the testimony of claimant that she was working 
 
            full-time eight hours per day or more right along with other 
 
            employees.  The evidence establishes that she was a 
 
            full-time employee.  Defendants did not establish that 
 
            claimant was temporarily, partially disabled or that 
 
            claimant was ever compensated with temporary partial 
 
            disability benefits.  Iowa Code section 85.33(3) and (2).  
 
            There is no evidence that claimant was ever paid 66 2/3 
 
            percent of the difference between her earnings at the time 
 
            of the injury and her earnings during a period of temporary 
 
            partial disability.  Iowa Code section 85.33(4).  
 
            Third, moreover, further assuming that defendants were 
 
            entitled to assert this defense, then defendants have not 
 
            demonstrated that claimant was offered "other work 
 
            consistent with the employee's disability."  Iowa Code 
 
            section 85.33(2).  Claimant testified that the work which 
 
            she was required to perform exceeded her restrictions 
 
            several times on the jobs that she was asked to perform and 
 
            claimant's testimony was not controverted, contradicted, or 
 
            rebutted or refutted.  
 
            Wherefore, it is determined that if this affirmative defense 
 
            was entitled to determination in this decision that 
 
            defendants have failed to sustain the burden of proof by a 
 
            preponderance of the evidence that claimant was temporarily 
 
            partially disabled, or was paid temporary partial disability 
 
            benefits.  The burden of proof is upon the proponent of an 
 
            issue.  Norland v. Iowa Department of Job Service, 412 
 
            N.W.2d 409, 410 (Iowa 1987); Wonder Life v. Liddy, 207 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            N.W.2d 27 (Iowa 1973).
 
            The party who would suffer a loss if an issue were not 
 
            established has the burden of proving that issue.  Iowa 
 
            Rules of Appellant Procedure, Rule 14 f(5); Williams v. 
 
            Quaker Oats Co., file number 1013375, (Arb. Decn., January 
 
            13, 1994).  
 
            The supreme court has determined that the burden of proof of 
 
            affirmative defenses is upon defendants.  Everts v. 
 
            Jorgensen, 227, Iowa 818, 289 N.W. 11, (Iowa 1939).  
 
            The industrial commissioner follows this precedent and has 
 
            also determined that the burden of proof of affirmative 
 
            defenses is upon the employer.  Schaapveld v. University of 
 
            Iowa, file number 814525, Appeal Decn., August 15, 1989.
 
            Therefore, if this issue had been entitled to determination 
 
            in this decision it would have been determined that 
 
            defendants failed to sustain the burden of proof on this 
 
            issue.
 
            Furthermore, there is nothing in Iowa Code section 85.33 
 
            that indicates that it has any application to healing period 
 
            benefits which are authorized in Iowa Code section 85.34(1).  
 
            Nor is this deputy aware of any case law connecting or 
 
            relating the requirements of Iowa Code section 85.33(2), (3) 
 
            or (4) to Iowa Code section 85.34(1), with respect to the 
 
            words of section 85.33(3) to the effect that "If the 
 
            employee refuses to accept the suitable work the employee 
 
            shall not be compensated with temporary partial, temporary 
 
            total, or healing period benefits during the period of the 
 
            refusal."
 
            Iowa Code section 85.33 is a section of the code that is 
 
            entitled Temporary Total and Temporary Partial Disability.  
 
            Its application therefore must be limited to that scope 
 
            i.e., temporary disability.  It should not be judicially 
 
            extended to healing period benefits which are an entirely 
 
            different section of the code that cover temporary 
 
            disability benefits when permanent disability is involved.
 
            entitlement to permanent disability
 
            It is determined that claimant has sustained a 6 percent 
 
            permanent impairment to the body as a whole caused by a 
 
            single accident pursuant to Iowa Code section 85.34(2)(s) 
 
            because this is an injury to both arms and that claimant is 
 
            entitled to 30 weeks of permanent partial disability 
 
            benefits.
 
            Dr. Parks did not give an impairment rating but rather 
 
            delegated the task to Dr. Makowsky (Ex. 1, p. 3).
 
            Dr. Makowsky rendered the following permanent impairment 
 
            rating and permanent restriction.
 
               Based upon the American Medical Association's, "Guides to 
 
            the Evaluation of Permanent Impairment", third edition 
 
            revised, Ms. Mitchell has sustained a 3%  impairment of the 
 
            right hand and wrist and a 3% impairment of the left hand 
 
            and wrist secondary to residual symptoms from her bilateral 
 
            carpal tunnel surgery.  I recommend that she have the 
 
            following permanent restriction:
 
               1.  Avoid repetitive use of both hands and wrists (Ex. A, 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            p. 1).
 
            Converting and combining, 3 percent of the hand is 
 
            equivalent to 3 percent to the upper extremity and 3 percent 
 
            of the upper extremity converts to 2 percent of the whole 
 
            person.  When 2 percent of the whole person is combined for 
 
            each arm it amounts to 4 percent of the whole person using 
 
            the AMA Guides, third edition revised, which was used by Dr. 
 
            Makowsky, Table 2 on page 16, Table 3 on page 16, and the 
 
            Combined Values Chart on page 254.
 
            Dr. Berg performed an independent medical evaluation on 
 
            February 3, 1993, based upon the third edition of the AMA 
 
            Guides, and gave the following assessment.
 
               In conclusion, I believe that Ms. Mitchell has sustained 
 
            a 7% impairment to the right upper extremity and a 3% 
 
            impairment to the left upper extremity based on loss of 
 
            strength and residual carpal tunnel symptoms.  Referring to 
 
            the above-mentioned guidelines, on Page 20, Table 3, a 7% 
 
            impairment to the upper extremity is equal to a 4% 
 
            impairment to the whole person.  A 3% impairment of the 
 
            upper extremity is equal to a 2% impairment of the whole 
 
            person.  Using the Combined Values Chart on Page 246, this 
 
            results in a 5% impairment to the whole person (Ex. G, p. 
 
            5).
 
            From the evidence submitted it appears to the deputy that 
 
            Dr. Berg gave claimant the most detailed examination and 
 
            personalized evaluation of her residual problems as well as 
 
            the best explanation of how he arrived at his rating.  Dr. 
 
            Berg's rating also comports best with the intractable nature 
 
            of claimant's bilateral carpal tunnel injury, the long 
 
            period of treatment, the months of physical therapy and work 
 
            hardening and the remaining result which is somewhat short 
 
            of a complete recovery.  Dr. Berg's evaluation also comports 
 
            best with claimant's own description of her problems, in 
 
            particular so far as her right arm is worse than the left.  
 
            There is one problem with Dr. Berg's evaluation.  It may be 
 
            a typographical error, nevertheless, it needs to be 
 
            corrected.  Using the Guides to the Evaluation of Permanent 
 
            Impairment,  3rd edition, as Dr. Berg did, when 4 percent of 
 
            the whole person is combined with 2 percent of the whole 
 
            person on the Combined Values Chart on page 246 the result 
 
            is a 6 percent impairment of the whole person rather than a 
 
            5 percent impairment.  Therefore, it is determined that 
 
            claimant has sustained a 6 percent impairment of the whole 
 
            person in this case.
 
            Dr. Berg also imposed permanent restrictions against 
 
            repetitive grasping, grasping with her hands, and repetitive 
 
            flexion and extension of her wrists (Ex. G, p. 5).
 
            Wherefore, it is determined that claimant has sustained a 6 
 
            percent permanent impairment to the body as a whole as a 
 
            result of her bilateral carpel tunnel injury to both arms 
 
            caused by a single accident pursuant to Iowa Code section 
 
            85.34(2)(s) and that claimant is entitled to 30 weeks of 
 
            permanent partial disability benefits.
 
            conclusions of law
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            Wherefore, based upon the foregoing and following principles 
 
            of law, these conclusions of law are made:
 
            That claimant has sustained the burden of proof by a 
 
            preponderance of the evidence that she is entitled to 
 
            additional healing period benefits for the period from June 
 
            6, 1991 through July 1, 1992.  Bodish v. Fischer, Inc., 257 
 
            Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 
 
            236 Iowa 296 18 N.W.2d 607 (1945); Iowa Code section 
 
            85.34(1).
 
            That defendant did not sustain the burden of proof by a 
 
            preponderance of the evidence that they are entitled to 
 
            assert the defense of Iowa Code section 85.33 (2) and (3) 
 
            for the first time at the time of hearing based upon (1) the 
 
            agreement of the parties in the prehearing conference 
 
            report, (2) the directive of the industrial commissioner in 
 
            the hearing assignment order, and the (3) general principles 
 
            of preparing the case for hearing found in Iowa Rules of 
 
            Civil Procedure, the Iowa Administrative Procedure Act and 
 
            the Rules of the Industrial Commissioner.  
 
            That claimant has sustained the burden of proof by a 
 
            preponderance of the evidence that she has sustained a 6 
 
            percent permanent impairment to the whole person based upon 
 
            this bilateral carpal tunnel injury to both arms pursuant to 
 
            Iowa Code section 85.34(2)(s).  
 
            
 
                                      ORDER
 
            
 
            THEREFORE, IT IS ORDERED:
 
            That defendant pay to claimant fifty-six (56) weeks of 
 
            temporary disability healing period benefits for the period 
 
            from June 6, 1991 through July 1, 1992 at the stipulated 
 
            rate of one hundred eighty-seven and 69/100 dollars 
 
            ($187.69) per week in the total amount of ten thousand five 
 
            hundred ten and 64/100 dollars ($10,510.64) commencing on 
 
            June 6, 1991.  
 
            That defendant pay to claimant thirty (30) weeks of 
 
            permanent partial disability benefits based upon a six 
 
            percent (6%) permanent impairment to the whole body at the 
 
            stipulated rate of one hundred eighty-seven and 69/100 
 
            dollars ($187.69) per week in the total amount of five 
 
            thousand six hundred thirty and 70/100 dollars ($5,630.70) 
 
            commencing on July 2, 1992.
 
            That defendant is entitled to a credit for twenty (20) weeks 
 
            of permanent partial disability benefits paid to claimant 
 
            prior to hearing at the rate of one hundred seventy-six and 
 
            37/100 dollars ($176.37) in the total amount of three 
 
            thousand five hundred twenty-seven and 40/100 dollars 
 
            ($3,527.40) as stipulated to by the parties.
 
            That all of these benefits are to be paid in a lump sum.
 
            That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            That the costs of this action, including the cost of the 
 
            attendance of the court reporter at hearing and the cost of 
 
            the  transcript, are charged to defendants pursuant to rule 
 
            343 IAC 4.33 and Iowa Code section 86.19(1) and 86.40.  
 
            That defendant file claim activity reports as requested by 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1994.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Robert E. McKinney
 
            Attorney at Law
 
            480 Sixth Street
 
            PO Box 209
 
            Waukee, IA  50263
 
            
 
            Mr. John Comer
 
            Attorney at Law
 
            PO Box 515
 
            Dakota City, NE  68731
 
            
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                   1401, 1402.40, 1802, 2901, 2902,             
 
                                   1802
 
                                   Filed March 31, 1994
 
                                   Walter R. McManus
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            VICKI MITCHELL,     
 
                      
 
                 Claimant, 
 
                                               File No. 980259 
 
            vs.       
 
                                             A R B I T R A T I O N
 
            IBP, INC.,     
 
                                                D E C I S I O N
 
                 Employer, 
 
                 Self-Insured   
 
                 Defendant.     
 
                      
 
            ___________________________________________________________
 
            1401, 1402.40, 1802
 
            
 
                 Defendant admitted injury and paid claimant for two 
 
            short periods of temporary disability, once following a 
 
            right carpel tunnel surgery and again following a left 
 
            carpel tunnel surgery.  Claimant was released to return to 
 
            work light duty with restrictions of five pounds, no knife 
 
            work, no vibration, no repetitive work.
 
            
 
                 After a few days claimant quit her job contending (1) 
 
            it caused swelling, pain, numbness and tingling and (2) the 
 
            supervisors asked her to perform work in violation of her 
 
            restrictions.  Claimant's testimony was credible; it was not 
 
            controverted; and it was accepted as true.  
 
            
 
                 Employer's nurse testified that they had other even 
 
            lighter duty jobs but she could not testify that any of them 
 
            were ever offered to claimant.
 
            
 
                 Claimant was awarded additional temporary disability 
 
            benefits for the period requested by claimant.  This was a 
 
            little over a year because after surgery the treating 
 
            physician, who was  authorized by defendant, determined that 
 
            claimant had not reached maximum medical improvement.  Both 
 
            the surgeon, and the after care physician, stated that they 
 
            were trying to improve claimant's condition with 
 
            medications, physical therapy and work-hardening during this 
 
            period of time.
 
            
 
                 With respect to section 85.34(1) the employee is 
 
            privileged to remain off work until one of the three 
 
            conditions in the statute is met.
 
            
 
                 It was determined that healing period continues while 
 
            the physicians are endeavoring to achieve medical 
 
            improvement and claimant is showing some improvement.  
 
            Cites.
 
            
 
                 It was determined that a permanently injured employee 
 
            has no duty to seek out employer and arrange for light duty 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            work.  If an employer wishes to mitigate the statutory 
 
            period of healing to which an injured employee is entitled, 
 
            then the burden is on employer to provide light duty work 
 
            and persuade the employee to accept it.  Cites.
 
            
 
                 It was determined that a release to return to light 
 
            duty work with restrictions by a physician cannot be equated 
 
            to a return to work or a return to substantially similar 
 
            employment as those words are used in section 85.34(1), even 
 
            though the employer provides work within those restrictions.
 
            
 
                 It was determined that healing period terminated when 
 
            claimant attained maximum medical improvement and a 
 
            permanent impairment rating was assessed.  Cites.
 
            
 
                 Several other factors that have been used to terminate 
 
            healing period were cited but it was determined that the 
 
            termination of healing period requires a practical 
 
            application of the facts of each case and the existing law.  
 
            Cites.
 
            
 
                 There is no language in section 85.34(1) that 
 
            incorporates any of the provisions of section 85.33(2) or 
 
            (3) permitting an employer to terminate healing period 
 
            benefits.
 
            
 
            2901, 2902, 1802
 
            
 
                 It was determined that employer could not assert for 
 
            the first time at the time of hearing that Iowa Code 
 
            sections 85.33(2) and (3) were a defense for the termination 
 
            of healing period benefits because of the employees refusal 
 
            to accept suitable work.  This defense was not asserted in 
 
            the answer to the petition.  It was not asserted in the 
 
            prehearing conference report.  It is inconsistent of the 
 
            intent and purpose of the Iowa Rules of Civil Procedure, the 
 
            Iowa Administrative Procedure Act and the Rules of the 
 
            Industrial Commissioner, which allow parties to adequately 
 
            prepare for a hearing, to raise a new issue for the first 
 
            time at the time of hearing.
 
            
 
                 As dicta, however, and to address all of the possible 
 
            issues in the case the following determinations were made.
 
            
 
                 With respect to Iowa Code sections 85.33(2) and (3) it 
 
            was determined that defendant introduced no evidence that 
 
            claimant was ever offered or was paid any temporary partial 
 
            disability benefits.  There was no evidence she was ever 
 
            paid sixty-six and two-thirds of the difference between 
 
            regular and temporary pay. On the contrary, the evidence 
 
            established that claimant was a full-time employee during 
 
            her short return to work.  
 
            
 
                 It was determined that employer did not offer claimant 
 
            "other work consistent with the employee's disability." as 
 
            those words are used in Iowa Code sections 85.33(2) and (3) 
 
            because some of the work offered exceeded her restrictions.
 
            
 
                 Furthermore, it was determined that section 85.33 is a 
 
            temporary total and temporary partial disability statute for 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            injuries that are temporary in nature.  This section should 
 
            not be extended to section 85.34(1) which is healing period 
 
            benefits for injuries which are permanent in nature.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
BILLIE JOE WETHERELL,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                      File No. 980265
 
HOPKINS CONTRACTING, INC.,   
 
                                   A R B I T R A T I O N
 
     Employer, 
 
                                      D E C I S I O N
 
and       
 
          
 
CNA INSURANCE COMPANY,  
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
                     STATEMENT OF THE CASE
 
 
 
This is a proceeding in arbitration brought by Billie Joe Wetherell as 
 
a result of alleged injuries to his shoulder and cervical spine which 
 
occurred on February 1, 1991.  The defendants denied liability and 
 
multiple issues are presented for determination.
 
 
 
This case was heard and fully submitted at Sioux City, Iowa on March 6, 
 
1995.  The record in the proceeding consists of claimant exhibits A 
 
through O, defendants exhibits A through F and testimony from Billy Joe 
 
Wetherell, Linda Hopkins, Steve Hopkins and Gary Moberg.  Claimant was 
 
represented by Kay E. Dull, Attorney at Law.  Defendants were 
 
represented by Michael P. Jacobs, Attorney at Law.
 
 
 
                             ISSUES
 
 
 
The issues presented for determination are as follows:
 
 
 
1.  Whether claimant sustained an injury on February 1, 1991, which 
 
arose out of and in the course of employment;
 
 
 
2.  Whether the injury is a cause of permanent disability the nature 
 
and extent thereof; 
 
 
 
3.  Whether claimant is entitled to Iowa Code section 85.27 medical 
 
benefits their authorization, fairness and reasonableness and causal 
 
connection to the work injury; and
 
 
 
4.  Whether defendants are entitled to credits against any award for 
 
payment of weekly benefits and the number of weeks for which a credit 
 
is to be had.
 
 
 
                        FINDINGS OF FACT
 
 
 
Having heard the testimony of the witnesses and having considered all 
 
of the evidence in the record, the deputy industrial commissioner 
 
finds:
 
 
 
Claimant, Billie Joe Wetherell began work for the employer as a laborer 
 
on April 6, 1989.  In early December of 1990 claimant was working in 
 
South Sioux City, Nebraska, when he slipped and fell into a ditch.  
 
Claimant did not immediately seek medical treatment as a result of the 
 
slip and fall nor did he complain of pain in his cervical spine or 
 
shoulder immediately after that incident.  Later in early 1991 claimant 
 
was working at Moville, Iowa, installing the water heater which weighed 
 
approximately 165 pounds.  Claimant provided a medical history that the 
 
work performed while installing a water heater resulted in pain in his 
 
cervical spine and shoulder.  Claimant also gave a history that the 
 

 
 
 
 
 
 
 
 
 
water heater weighed 800 pounds when in fact it weighed approximately 
 
165 pounds.
 
 
 
Claimant testified at hearing that on or about February 1, 1991, he had 
 
in fact slipped and fell in a ditch while performing work for the 
 
employer in South Sioux City, Nebraska.  Claimant also testified that 
 
on or about the same day he then went to Moville to install the water 
 
heater and thereby aggravated the injury.  Based upon a review of the 
 
evidence it appears that claimant was in error with respect to the day 
 
that he fell in South Sioux City, Nebraska and with respect to the day 
 
that he assisted in the water heater installation at Moville, Iowa.
 
 
 
Claimant first sought medical treatment for the cervical spine and 
 
shoulder complaints on February 12, 1991 (Defendant Exhibit A).  
 
Claimant reported that he had right shoulder pain since the prior week. 
 
 
 
 He also reported that he had picked up a child several days prior to 
 
onset and that was the only significant event which had occurred.
 
On March 8, 1991, claimant gave a medical history that he had no 
 
specific injury or pressure and that the pain had begun one month 
 
earlier (Def. Ex. B).  
 
 
 
On April 15, 1991, a medical history was taken which indicated that 
 
claimant fell backwards into a ditch in late December of 1990 with some 
 
pain in the cervical spine which had resolved.  The medical history 
 
also indicates that claimant was straining in early February with a 
 
gradual onset of right arm and right shoulder pain (Claimant Exhibit 
 
H).
 
 
 
It is found that medical records created close in time to the alleged 
 
incident must be given greater weight.  Those records were made at a 
 
time when the events were still fresh in the mind of all parties 
 
involved.  Furthermore, the documentation was created when litigation 
 
had not yet commenced and there was no financial motivation on the part 
 
of the doctors or claimant.  Therefore, the older medical records will 
 
be given greater consideration where a conflict exists in medical 
 
histories given. 
 
 
 
              REASONING AND CONCLUSIONS OF LAW
 
 
 
The first issue is whether claimant sustained an injury on February 1, 
 
1991, which arose out of and in the course of employment with the 
 
employer.
 
 
 
A personal injury contemplated by the workers' compensation law means 
 
an injury, the impairment of health or a disease resulting from an 
 
injury which comes about, not through the natural building up and 
 
tearing down of the human body, but because of trauma.  The injury must 
 
be something which acts extraneously to the natural processes of nature 
 
and thereby impairs the health, interrupts or otherwise destroys or 
 
damages a part or all of the body.  Although many injuries have a 
 
traumatic onset, there is no requirement for a special incident or an 
 
unusual occurrence.  Injuries which result from cumulative trauma are 
 
compensable.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
(1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v. 
 
Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934).  An 
 
occupational disease covered by chapter 85A is specifically excluded 
 
from the definition of personal injury.  Iowa Code section 85.61(5); 
 
Iowa Code section 85A.8.
 
 
 
The claimant has the burden of proving by a preponderance of the 
 
evidence that the alleged injury actually occurred and that it arose 
 
out of and in the course of employment.  McDowell v. Town of 
 
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 
 
261 Iowa 352, 154 N.W.2d 128 (1967).  The words "arising out of" refer 
 
to the cause or source of the injury.  The words "in the course of" 
 
refer to the time, place and circumstances of the injury.  Sheerin v. 
 
Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 
 
N.W.2d 283 (Iowa 1971).
 
 
 
It is held that claimant has failed to establish by a preponderance of 
 
the evidence that he sustained an injury on or about February 1, 1991, 
 
which arose out of and in the course of employment with the employer.  
 
Claimant has the burden of establishing credible evidence to support a 
 
work-related injury.  In this situation multiple inconsistencies 
 

 
 
 
 
 
 
 
 
 
existed within the record.  First, it was clear that claimant could not 
 
have experienced an injury on February 1, or within several weeks of 
 
February 1, 1991 in South Sioux, Nebraska.  The medical records 
 
document a slip and fall in December of 1990 as opposed to February of 
 
1991.  Furthermore, it is clear that claimant was not lifting an 800 
 
pound water heater.  Instead, claimant had the opportunity to install a 
 
water heater which weighed about 165 pounds.  Such inconsistencies 
 
cause less weight to be given claimant's testimony.  Finally, the 
 
medical records created early in claimant's medical treatment indicate 
 
an onset not connected to any traumatic event.  It was not until after 
 
claimant had treated for two months that he related the onset of 
 
symptoms to work-related events.  Such inconsistencies severely detract 
 
from the weight given evidence supporting a work-related injury.  
 
 
 
Therefore, it must be concluded that claimant has failed to bring forth 
 
sufficient credible evidence to establish by a preponderance of the 
 
evidence that he sustained an injury on or about February 1, 1991, 
 
which arose out of and in the course of employment with Hopkins 
 
Contracting, Inc.
 
 
 
Since this issue is dispositive of the entire case further discussion 
 
is not warranted.
 
 
 
                                ORDER
 
 
 
IT IS, THEREFORE, ORDERED:
 
 
 
Claimant shall take nothing from file number 980265.
 
 
 
It is further ordered that claimant's petition in file number 980265 is 
 
hereby dismissed. 
 
 
 
It is further ordered that each party shall bear their own costs 
 
incurred with the prosecution of this action.
 
 
 
Signed and filed this ____ day of March, 1995.
 
                              ______________________________
 
                              MARLON D. MORMANN
 
                              DEPUTY INDUSTRIAL COMMISSIONER    
 
 
 
Copies to:
 
Ms. Kay E. Dull
 
Attorney at Law
 
509 Ninth Street
 
PO Box 3107
 
Sioux City, IA  51102
 
 
 
Mr. Michael P. Jacobs
 
Attorney at Law
 
300 Toy National Bank Bldg.
 
Sioux City, IA  51101
 
 
 
 
 
 
 
 
 
 
     
 
                                 5-1402.30
 
                                 Filed March 10, 1995
 
                                 Marlon D. Mormann
 
 
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
____________________________________________________________
 
BILLIE JOE WETHERELL,   
 
          
 
     Claimant, 
 
          
 
vs.       
 
                                    File No. 980265
 
HOPKINS CONTRACTING, INC.,   
 
                                A R B I T R A T I O N
 
     Employer, 
 
                                    D E C I S I O N
 
and       
 
          
 
CNA INSURANCE COMPANY,  
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
___________________________________________________________
 
5-1402.30
 
Claimant failed to establish by a preponderance of the evidence that he 
 
sustained an injury on February 1, 1991, arising out of and in the 
 
course of employment.  Inconsistent medical histories along with 
 
inconsistent statements made by claimant detracted from the weight 
 
given claimant's testimony as to a work injury.  It was held that 
 
claimant failed to establish by a preponderance of the evidence a work 
 
injury due to the numerous inconsistencies.