BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            RICHARD CHARLES WOLTHUIS,     :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 981321
 
            SHINE BROTHERS CORP.,         :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            CNA INS. CO.,                 :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Richard 
 
            Charles Wolthuis, claimant, against Shine Brothers Corpora
 
            tion, employer, hereinafter referred to as Shine, and CNA 
 
            Insurance Company, insurance carrier, defendants, for 
 
            workers' compensation benefits as a result of an alleged 
 
            injury on May 20, 1989.  On March 19, 1993, a hearing was 
 
            held on claimant's petition and the matter was considered 
 
            fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a hearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the hearing report, the parties have stip
 
            ulated that an employee-employer relationship existed 
 
            between claimant and Shine at the time of the alleged 
 
            injury.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                   I.  Whether claimant received an injury arising out 
 
            of and in the course of employment; 
 
            
 
                  II.  Whether claimant gave timely notice of injury;
 
            
 
                 III.  The extent of claimant's entitlement to disabil
 
            ity benefits; and
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                   
 
                 IV.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 Claimant worked for Shine for approximately 10 years.  
 
            At the time of his claimed injury, claimant was a foreman of 
 
            the steel/iron yard.  Claimant supervised three workers.  
 
            Claimant was a working foreman, assisting his helpers which 
 
            included operation of yard equipment.
 
            
 
                 Claimant testified that he received his work injury 
 
            when he was jostled about in the cab of a tracked backhoe 
 
            crane used to load, unload and cut-up heavy items of scrap.  
 
            On the date of the alleged injury, May 20, 1989, claimant 
 
            was sorting and lifting crushed combines using a Kamatsu 
 
            excavator fitted on the end of the boom with a Mosley metal 
 
            shear instead of a bucket. This shear was hydraulically 
 
            operated to not only pick up and drop scrap but to cut scrap 
 
            to workable size chunks.  Claimant stated that he picked up 
 
            a crushed combine on one occasion with the boom and the 
 
            excavator tipped lifting the back track off the ground.  
 
            When he lowered the boom, claimant said that the Mosley 
 
            sheared through and released the combine causing the excava
 
            tor to fall backwards throwing claimant forward about the 
 
            cab.  Both claimant and defendants agree that this combine 
 
            would weigh no more than 3000 pounds.  Claimant states that 
 
            he suffered right leg pain and, after a break, began to 
 
            experience numbness in the fingers in the right hand and leg 
 
            and eventually entirely on the right side including his 
 
            face.
 
            
 
                 Claimant stated to insurance adjusters and at hearing 
 
            that he talked about the incident with two of his employees 
 
            in the yard during break.  He stated that he asked Shine's 
 
            office manager for a doctor appointment with the company 
 
            doctor that day but was told that arrangements could not be 
 
            made until the following Monday.  Claimant did go to the 
 
            office of the company doctor, J. E. Kelly, M.D., on May 22, 
 
            1989, a Monday, but was treated by a young physician intern
 
            ing in the office, David Robinson, D.O.  Dr. Robinson diag
 
            nosed high blood pressure and dental problems and began 
 
            treating claimant for these problems.  In June, claimant's 
 
            care was transferred to Dr. Kelly when Dr. Robinson left to 
 
            complete his residency.  Dr. Kelly continued to treat 
 
            claimant over the next several months for high blood pres
 
            sure but continued to note right sided complaints of pain 
 
            and numbness.
 
            
 
                 Claimant went to a chiropractor, Vernon Tieszen, D.C., 
 
            in July, 1989 complaining of right side problems and 
 
            received approximately 15 treatments upon a diagnosis of 
 

 
            
 
            Page   3
 
            
 
            
 
                  
 
                   
 
            subluxation at various levels in the cervical, thoracic and 
 
            lower spine.  It was noted by Dr. Tieszen in his September 
 
            11, 1990 report that he advised claimant at that time that 
 
            his continual work could continue to aggravate his condi
 
            tion.  When treatment failed to alleviate claimant's prob
 
            lems, Dr. Tieszen recommended that claimant go to the Mayo 
 
            Clinic for evaluation. 
 
            
 
                 In November, Dr. Kelly referred claimant for neurologi
 
            cal evaluation to Keith McLarnon, M.D.  The only impression 
 
            reached by Dr. McLarnon after this evaluation was possible 
 
            carpal tunnel syndrome and he recommended further testing.
 
            
 
                 In December 1989, Dr. Kelly made an appointment for 
 
            claimant at the Mayo clinic and claimant was evaluated by 
 
            the Clinic in January 1990.  Physicians at this Clinic and 
 
            specifically a neurologist, Richard J. Caselli, M.D., diag
 
            nosed that claimant suffers from cervical syringomyelia, a 
 
            condition in which a cavity develops in the center of the 
 
            spinal cord that fills with fluid placing pressure on the 
 
            nerve pathways.  There was considerable dispute among the 
 
            physicians in this case as to the cause of this condition 
 
            and whether claimant's incident on May 20, 1989 could have 
 
            caused or aggravated this condition.  In any event, severe 
 
            work restrictions were placed upon claimant by Dr. Caselli 
 
            consisting of no lifting over 25 pounds and no work which 
 
            would aggravate the neck. These restrictions prevented a 
 
            return to work at Shine.  Claimant remains unemployed to 
 
            date.  Physicians also disagree in this case as to the 
 
            necessity of Caselli's restrictions.
 
            
 
                 After careful review of the evidence, a work injury 
 
            could not be found.  Initially, claimant's story was totally 
 
            believable.  However, according to Toby Shine, claimant's 
 
            boss, there is a real question whether or not the incident 
 
            as described by claimant could happen.  According to the 
 
            manufacturer, that particular crane should be able to lift 
 
            up to 4,800 pounds without tipping and the combine weighed 
 
            less than that.  Also, the automatic overload valve on the 
 
            hydraulic system would by-pass if a safe weight were 
 
            exceeded.
 
            
 
                 Also there is inconsistency in claimant' story.  He 
 
            stated that he told his fellow workers at Shine of the 
 
            incident.  Yet, no one remembered the incident.  In order to 
 
            find for claimant, all of these workers would have to be 
 
            found as not credible.  Furthermore, there is no mention of 
 
            a history of onset after a work injury in the medical 
 
            records of Dr. Kelly or claimant's chiropractor until the 
 
            evaluation by Dr. McLarnon in November 1989, almost six 
 
            months after the alleged incident.
 
            
 
                 Consequently, this evidence, viewed as a whole, leaves 
 
            the undersigned trier-of-fact in a quandary as to who to 
 
            believe.  There was nothing in the demeanor of any of the 
 
            witnesses at hearing that suggest either credibility or the 
 
            lack thereof.  As set forth in the Conclusion of Law 
 

 
            
 
            Page   4
 
            
 
            
 
                 
 
                  
 
            section, in such situations claimant must lose because 
 
            claimant has the burden of persuasion.  As the undersigned 
 
            is unconvinced, claimant cannot prevail.
 
            
 
                 In light of an inability to find a work injury, further 
 
            findings are unnecessary.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant received an injury arising out 
 
            of and in the course of employment.  The words "out of" 
 
            refer to the cause or source of the injury.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury.  See generally, Cedar Rapids Community Sch. 
 
            v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. 
 
            Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An employer 
 
            takes an employee subject to any active or dormant health 
 
            impairments. A work connected injury which more than 
 
            slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 
 
            106 N.W.2d 591 (1961), and cases cited therein.
 
            
 
                 In the case sub judice, the defendants presented enough 
 
            evidence to prevent the trier-of-fact from being convinced 
 
            that the incident happened as alleged.
 
            
 
                 As claimant did not prevail, costs are assessed against 
 
            him.
 
            
 
                           
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
              
 
              
 
                                       ORDER
 
            
 
                 1.  Claimant's petition is dismissed with prejudice and 
 
            he shall take nothing from this proceeding.
 
            
 
                 2.  Claimant shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Patrick M. Carr
 
            Attorney at Law
 
            201 East Fifth Street
 
            Spencer, Iowa  51301
 
            
 
            Mr. Michael P. Jacobs
 
            Attorney at Law
 
            300 Toy National Bank Building
 
            Sioux City, Iowa  51101
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  5-1l00
 
                                                  Filed May 11, 1993
 
                                                  LARRY P. WALSHIRE
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            RICHARD CHARLES WOLTHUIS,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 981321
 
            SHINE BROTHERS CORP.,    
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            CNA INS. CO.,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
                 
 
            5-1100  -  Non-precedential
 
            
 
            Claimant did not prevail.  Deputy unconvinced that the 
 
            incident allegedly causing the injury actually happened.  
 
            Claimant failed to meet his burden of persuasion.
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            MARGIE SCHAEFER-MOORE,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                   File No. 981327
 
            IOWA BANKERS INSURANCE &   
 
            SERVICES, INC.,       
 
                                                     A P P E A L
 
                 Employer,   
 
                                                   D E C I S I O N
 
            and         
 
                        
 
            FIDELITY AND DEPOSIT COMPANY    
 
            OF MARYLAND,     
 
                        
 
                 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 December 16, 1992 is affirmed and is adopted as the 
 
            final agency action in this case with the following 
 
            additional analysis:
 
            
 
            Defendants requested a setoff of any award to claimant for a 
 
            judgment against claimant in district court.  The judgment 
 
            was for an unrelated matter.  Defendants' request for setoff 
 
            was untimely filed.  In addition, there is no statutory 
 
            authority for the setoff requested by defendants.  A setoff 
 
            is denied.
 
            
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of October, 1993.
 
            
 
            
 
                                        ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Joseph A. Happe
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            418 6th Ave., Ste 500
 
            Des Moines, Iowa 50309-2421
 
            
 
            Mr. David D. Drake
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th St., Ste 500
 
            West Des Moines, Iowa 50266
 
            
 
            
 
 
            
 
            
 
            
 
            
 
                                      5-1100, 5-1400, 1800, 3400
 
                                      Filed October 28, 1993
 
                                      Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            
 
            MARGIE SCHAEFER-MOORE,     
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                 File No. 981327
 
            IOWA BANKERS INSURANCE &   
 
            SERVICES, INC.,       
 
                                                   A P P E A L
 
                 Employer,   
 
                                                 D E C I S I O N
 
            and         
 
                        
 
            FIDELITY AND DEPOSIT COMPANY    
 
            OF MARYLAND,     
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            5-1100, 5-1400
 
            
 
                 Claimant met her burden of proof that she had sustained 
 
            a work injury which arose out of and in the course of her 
 
            employment.  She sustained injuries to her neck, shoulder 
 
            and upper extremity.
 
            
 
            1800
 
            
 
                 Claimant was held to have sustained a 25 percent 
 
            permanent partial disability.  She was a highly qualified 
 
            insurance salesperson who was required to travel extensively 
 
            to call upon customers.  After her work injury, claimant was 
 
            able to return to work but she wore a cervical collar 
 
            whenever she traveled by car or else whenever she endured 
 
            excruciating pain.
 
            
 
                 Several months after the work injury, claimant was 
 
            terminated over her contract for compensation.  The 
 
            termination was unrelated to her work injury.  
 
            
 
                 After her termination, claimant sought conservative 
 
            treatment for her injury including osteopathic manipulative 
 
            therapy.  She also sought treatment from an orthopedic 
 
            specialist.  Eventually the orthopedist released claimant to 
 
            return to work but with restrictions.  She was precluded 
 
            from lifting weights greater than 30 pounds and from 
 

 
            
 
            Page   2
 
            
 
            
 
            engaging in repetitive extensions of her neck.
 
            
 
                 Claimant is 54 years old.  She was not terminated 
 
            because of her physical condition or because her permanent 
 
            restrictions precluded her from performing her assigned 
 
            duties.
 
            
 
                 She has had to curtail her driving because of her 
 
            condition.  She is incapable of driving as much now as she 
 
            did at the time of the work injury.  The nature of her 
 
            business depends upon making customer calls throughout the 
 
            state.  Since she is unable to travel as much, her 
 
            opportunities are lessened.  She has incurred a loss of 
 
            earning capacity, as well as a loss of earnings.
 
            
 
                 Claimant, however is not precluded from working in the 
 
            insurance industry.  She is highly qualified.  She has every 
 
            certification in her field.  She is licensed in Iowa and 
 
            other states.  She is highly educated.  Her experience is 
 
            vast.  She has had supervisory experience which is a 
 
            transferable skill.  She has many assets to offer a 
 
            prospective employer.  She is also capable of operating her 
 
            own business.  She has made some attempts to form her own 
 
            business where she can set her own hours, and establish her 
 
            own territories.
 
            
 
            3400
 
            
 
                 Defendants were not allowed a setoff against claimant's 
 
            workers' compensation benefits for a jury verdict 
 
            defendant-employer obtained for an unrelated matter in the 
 
            Iowa District Court.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARGIE SCHAEFER-MOORE,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 981327
 
            IOWA BANKERS INSURANCE &      :
 
             SERVICES, INC.,              :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            FIDELITY AND DEPOSIT COMPANY, :
 
             OF MARYLAND                  : 
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Margie Schaeffer-Moore, against her former 
 
            employer, Iowa Bankers Insurance & Services, Inc., and its 
 
            insurance carrier, Fidelity and Deposit Co. of Maryland, 
 
            defendants.  The case was heard on October 19, 1992, in Des 
 
            Moines, Iowa at the office of the Industrial Commissioner.  
 
            The record consists of the testimony of claimant.  The 
 
            record also consists of joint exhibits 1-8.
 
            
 
                 Additionally, at the commencement of the hearing, 
 
            defendants filed a motion for leave to amend its answer.  In 
 
            its motion, defendants requested that it be allowed to 
 
            include the following as part of its answer:
 
            
 
                   COMES NOW the Employer and Insurer, and for 
 
                 their further affirmative defense, add the 
 
                 following paragraph to their Amended Answer:
 
            
 
                   7.  The Defendants hereby assert a set off 
 
                 against any award herein to the extent of any 
 
                 obligation/verdict imposed on Claimant in the case 
 
                 now pending in the Iowa District Court for Polk 
 
                 County, Iowa indexed at "CE 035-20413" and 
 
                 captioned, "Iowa Bankers Insurance and Services, 
 
                 Inc. vs Margie V. Schaefer."
 
            
 
                   WHEREFORE, Defendants pray that the Petition be 
 
                 dismissed at Claimant's cost and that if an award 
 
                 is entered herein, that the Defendants be allowed 
 
                 to set off that award with any verdict obtained 
 
                 against the Claimant in the above referenced Iowa 
 
                 District Court action.
 
            
 
                   The Defendants Employer and Insurer further 
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 request leave to submit evidence of the amount of 
 
                 the set off in a separate hearing after the 
 
                 Division of Industrial Services enters an 
 
                 Arbitration Decision.
 
            
 
                 Claimant vehemently resisted the proposed amendment and 
 
            any setoff of a future award in a civil action before the 
 
            Iowa District Court.
 
            
 
                 The hearing deputy did not rule on the motion.  A 
 
            ruling on the motion to amend was reserved until such time 
 
            as the decision was filed.
 
            
 
                              STATEMENT OF THE ISSUE
 
            
 
                 The issues to be determined are:
 
            
 
                 1)  Whether claimant sustained an injury which arose 
 
            out of and in the course of his employment;
 
            
 
                 2)  Whether there is a causal relationship between the 
 
            alleged injury and any temporary or permanent disability;
 
            
 
                 3)  Whether claimant is entitled to any healing period 
 
            or permanent partial disability benefits;
 
            
 
                 4)  Whether claimant is entitled to any medical 
 
            benefits pursuant to section 85.27; and
 
            
 
                 5)  Whether defendants are entitled to a setoff against 
 
            any weekly benefits for an action in the Iowa District 
 
            Court.
 
            
 
                                 findings of fact
 
            
 
                 Claimant is 54 years old.  She has a high school 
 
            diploma as well as a bachelor of arts degree in zoology from 
 
            Colorado College.  In addition, claimant graduated with the 
 
            honor of "Phi Beta Kappa."  She married and moved to Iowa.  
 
            She obtained her Iowa teaching certificate and for one year 
 
            she taught high school in Ames, Iowa.  However, an archaic 
 
            work rule existed at the time, and Ames teachers were not 
 
            permitted to teach in the public school setting if they were 
 
            pregnant.  Since claimant was pregnant with her first child, 
 
            she was forced to terminate her employment.
 
            
 
                 From 1961 until 1972 claimant was employed full time as 
 
            a homemaker and mother.  She reentered the work arena in 
 
            1972 when she worked in the food catering business with a 
 
            friend.  Claimant left the catering business in 1975 and 
 
            entered the insurance industry.
 
            
 
                 In May of 1975, claimant commenced employment with 
 
            Lincoln McGoldrick and Associates as a salesperson.  She was 
 
            hired to sell life and health insurance, as well as sell 
 
            annuities.  Because she was so successful, she became the 
 
            brokerage manager for the agency.  Her duties and 
 
            responsibilities grew.  She made appointments, and calls 
 
            primarily in the hospital setting.  She branched out into 
 
            the estate planning market which was quite lucrative.  She 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            received many awards and incentive trips.
 
            
 
                 In May of 1980, claimant left her employment in order 
 
            to improve her career opportunities.  On June 16, 1980, she 
 
            commenced her employment with defendant-employer as the 
 
            manager of the Life Insurance Department.  She was assigned 
 
            the task of marketing group life, or health insurance and 
 
            annuity programs through payroll deductions for all banks in 
 
            Iowa.  Her duties intensified over time.  She designed sales 
 
            materials, trained assistants, and developed over $39 
 
            million in licensed annuity products for bankers.
 
            
 
                 Claimant's duties required extensive traveling 
 
            throughout Iowa.  She called on bank presidents, directors, 
 
            and human resource personnel.  Her hours were long.  Often, 
 
            she was required to attend evening meetings or to perform 
 
            paperwork duties in her motel room during evening hours.  
 
            Claimant was also responsible for conducting continuing 
 
            education seminars throughout the year.  Her work was 
 
            challenging, to say the least.  Because of the nature of her 
 
            duties, claimant was frequently required to transport, carry 
 
            and lift, briefcases, suitcases, projectors, and other 
 
            equipment.
 
            
 
                 Claimant testified that on the afternoon of April 25, 
 
            1990, she drove to a motel in Waverly, Iowa.  She related 
 
            that when she lifted her suitcase from the car, she felt a 
 
            sharp pain at the base of her neck, and at her shoulder near 
 
            her collar.  She checked into her motel and ate dinner, but 
 
            she still felt the pain in her shoulder so she drove home 
 
            that evening.  On the next day, claimant had her spouse 
 
            drive her to her appointments in southern Iowa.  Claimant 
 
            continued to experience pain until she reached the point 
 
            where she felt compelled to seek medical treatment.
 
            
 
                 On April 27, 1990, claimant sought medical attention 
 
            from her family physician, David Musgrave, D.O.  He 
 
            performed osteopathic manipulation and he prescribed Tylenol 
 
            number 3.
 
            
 
                 Claimant returned to work the next week after the work 
 
            injury.  She continued performing her regular duties.  
 
            However, she wore a soft collar around her neck, especially 
 
            when she traveled in a car.  Claimant testified that 
 
            traveling aggravated her condition, and that her pain 
 
            increased whenever she traveled by automobile or by 
 
            airplane.
 
            
 
                 Claimant worked until September 6, 1990, the date she 
 
            was terminated.  Her termination was unrelated to her 
 
            workers' compensation claim.  Rather, the termination 
 
            centered around a dispute over a contract for compensation.  
 
            At the time of her termination claimant was earning $51,270 
 
            per year.  Following her termination, defendant-employer 
 
            sued claimant in the Iowa District Court for money damages.  
 
            The lawsuit was unrelated to the workers' compensation 
 
            claim.  A jury trial was held and the verdict was in favor 
 
            of defendant and against claimant.  
 
            
 
                 Subsequent to her termination from defendant-employer, 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            claimant entered the hospital for an unrelated surgery due 
 
            to an intestinal blockage.  She was released to return to 
 
            work in January of 1991.  Claimant then began exploring the 
 
            possibilities for self-employment in the insurance industry.  
 
            She engaged in duties involving traveling, typing, mailing, 
 
            and telephoning.  She then also began experiencing 
 
            difficulties with her neck, shoulders and upper extremities.  
 
            
 
                 Claimant was referred to an orthopedic specialist, 
 
            Robert Hayne, M.D. in February of 1991.  In his report of 
 
            September 10, 1992, Dr. Hayne opined:
 
            
 
                 ...
 
            
 
                 Neurological examination on February 28th showed 
 
                 the cranial nerves to be normal.  The blood 
 
                 pressure was 145/80.  The neck was only mildly 
 
                 restricted in range of passive motion.  The deep 
 
                 reflexes are 0-1+ throughout with, however some 
 
                 weakness of extension of the right forearm.  
 
                 Recent x-rays of the cervical spine reveal 
 
                 narrowing at the 5th cervical interspace with an 
 
                 MRI made recently showing evidence of a herniated 
 
                 disc at the 5th and 6th cervical interspaces.
 
            
 
                 A cervical myelogram was made at Methodist 
 
                 Hospital on 3/14/91.  Deformity was demonstrated 
 
                 bilaterally in the opaque column opposite the C6-7 
 
                 interspace.  The changes were slightly greater on 
 
                 the right.  There was also deformity noted in the 
 
                 lateral aspect of the opaque column at the C5-6 
 
                 level.
 
            
 
                 The fifth cervical interspace was not particularly 
 
                 remarkable on the myelographic study.
 
            
 
                 The patient was seen for follow-up examination on 
 
                 5/15/91.  At that time, she was much improved.  
 
                 She was still wearing a soft collar.
 
            
 
                 Neurological examination on that date showed the 
 
                 biceps reflex and the triceps reflex to be 
 
                 diminished on the left as compared to the right.  
 
                 She was to return to work on June 1, 1991, with a 
 
                 30-pound weight lifting limit.
 
            
 
                 She was seen, on the last occasion, on 6/1/92.  
 
                 she stated that pain was persisting over the 
 
                 lateral aspect of the right upper extremity and 
 
                 the side of the neck on the right side.  There was 
 
                 some tingling of the radial two fingers of the 
 
                 right hand.
 
            
 
                 Neurological examination on that date showed some 
 
                 weakness of extension of the right forearm.  It 
 
                 was felt advisable for her to continue on 
 
                 symptomatic measures with the patient being 
 
                 cautioned to avoid excessive lifting and also 
 
                 activity entailing extension of the neck.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 The final diagnosis is spondylosis at the 5th and 
 
                 6th cervical interspaces with some herniation of 
 
                 the 6th cervical intervertebral disc on the right 
 
                 side.  This involvement of the cervical spine 
 
                 appears to be related to the lifting incident back 
 
                 in April, 1990.  In view of the recent 
 
                 improvement, I felt that no specific treatment was 
 
                 indicated.  Her permanent disability at the time 
 
                 of my examination appeared to be approximately 
 
                 twelve percent of total.  If she were to require 
 
                 surgical treatment, the permanent disability 
 
                 could, in all probability, be reduced to seven or 
 
                 eight percent of total.
 
            
 
                 It is recommended that with or without surgical 
 
                 treatment, she should restrict her lifting to 
 
                 weights not over 30 pounds and should avoid 
 
                 repetitious extension of her neck.  At this time, 
 
                 Mrs. Schaefer-Moore can continue on symptomatic 
 
                 conservative measures.  If her symptoms should 
 
                 increase sufficiently in severity she may be a 
 
                 candidate then for diskectomy and interbody fusion 
 
                 at the 5th and 6th cervical interspaces.
 
            
 
                 Claimant did not desire to have any cervical surgery.  
 
            She indicated she wanted to follow a conservative mode of 
 
            treatment.
 
            
 
                 At the time of the hearing, claimant was still engaged 
 
            in self-employment as an insurance salesperson.  Her hours 
 
            were part-time and she had earned little money.  In 1991, 
 
            she earned $2,899 net income while she had earned $6,000 
 
            gross income for 1992.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The first issue to address is whether claimant has 
 
            sustained an injury which arose out of and in the course of 
 
            her employment.  The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 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).
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 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).
 
            
 
                 The claimant has met her requisite burden of proof that 
 
            she has sustained a work injury on April 25, 1990.  Claimant 
 
            is credible.  Her rendition of the work injury is 
 
            believable.  While it is acknowledged that Claimant has 
 
            sustained a prior work injury to her neck and shoulders, in 
 
            1987, she has sustained no permanent disability as a result 
 
            of the 1987 injury.  There is no other explanation posed for 
 
            the cause of her present condition other than the work 
 
            injury in question.  
 
            
 
                 Likewise, claimant has established the requisite causal 
 
            connection.  All medical experts relate claimant's condition 
 
            to the work injury on April 25, 1990.  Their expert opinions 
 
            are unrefuted.  No physician relates claimant's condition to 
 
            anything other than to the work injury.  Claimant's 
 
            condition is related to her work injury.
 
            
 
                 The next issue addresses the nature and extent of 
 
            claimant's condition.  
 
            
 
                 Dr. Hayne opined claimant has a permanent functional 
 
            impairment between 7 and 12 percent.  His opinion is 
 
            unrefuted.  He has placed permanent restrictions on 
 
            claimant's activities.  She is precluded from lifting 
 
            weights greater than 30 pounds, and from engaging in 
 
            repetitive extensions of her neck.  Generally, these are 
 
            severe permanent restriction.  
 
            
 
                 Claimant has an industrial disability.  She is 54 years 
 
            old.  However, because claimant has usually been employed in 
 
            sedentary positions, her restrictions are not as severe as 
 
            they would be for a person engaged in heavier type labor 
 
            positions.  Claimant has not been terminated because of her 
 
            physical condition or because her permanent restrictions 
 
            have precluded her from her employment with defendant.  She 
 
            has been terminated for other reasons.  Prior to the date of 
 
            her termination, claimant was able to perform her job 
 
            duties, although she performed them wearing a cervical 
 
            collar, or else she performed them while she was in 
 
            excruciating pain.  There is no question in this deputy's 
 
            mind that Claimant has had to curtail her driving because of 
 
            her work injury.  She is incapable of driving as much now as 
 
            she did in 1990.  The nature of her business depends upon 
 
            making personal customer calls throughout the state.  Since 
 
            she is unable to travel as much, her business is curtailed 
 
            to some degree.  Consequently, she has incurred a loss of 
 
            earning capacity, as well as a loss of actual earnings.  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Claimant, however, is not precluded from working in the 
 
            insurance industry.  She is highly qualified.  She has every 
 
            certification in her field.  She is licensed in Iowa, and 
 
            other states.  She is highly educated.  Her experience is 
 
            vast.  She has had supervisory experience which is 
 
            transferable.  She has many assets to offer a prospective 
 
            employer.  She is also capable of operating her own 
 
            business.  She has made some attempts to form her own 
 
            business where she can set her own hours and territories.
 
            
 
                 Therefore, after reviewing the evidence, after 
 
            listening to the testimony and after observing claimant, it 
 
            is the determination of this deputy that claimant has a 25 
 
            percent permanent partial disability.  She is entitled to 
 
            125 weeks of benefits at the stipulated rate of $565.03 per 
 
            week and commencing on June 1, 1991.
 
            
 
                 Likewise, claimant is entitled to some healing period 
 
            benefits.
 
            
 
                 Section 85.34(1) provides that healing period benefits 
 
            are payable to an injured worker who has suffered permanent 
 
            partial disability until (1) the worker has returned to 
 
            work; (2) the worker is medically capable of returning to 
 
            substantially similar employment; or (3) the worker has 
 
            achieved maximum medical recovery.  The healing period can 
 
            be considered the period during which there is a reasonable 
 
            expectation of improvement of the disabling condition.  See 
 
            Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 
 
            Ct. App. 1981).  Healing period benefits can be interrupted 
 
            or intermittent.  Teel v. McCord, 394 N.W.2d 405 (Iowa 
 
            1986).
 
            
 
                 In the case at hand, claimant is requesting benefits 
 
            from January 19, 1991 through May 31, 1991.  During this 
 
            time frame, Claimant was experiencing difficulties with her 
 
            neck, shoulder, and upper extremity.  She sought treatment 
 
            from Dr. Hayne, an orthopedic specialist.  He released 
 
            claimant to return to work on June 1, 1991.  Claimant is 
 
            entitled to 19 weeks of healing period benefits for the 
 
            aforementioned period.
 
            
 
                 Claimant is also requesting medical benefits pursuant 
 
            to section 85.27.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 It is the determination of this deputy industrial 
 
            commissioner that claimant is entitled to the following 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            medical benefits:
 
            
 
                 Central Iowa Radiology           $288.00
 
                 2-14-91
 
            
 
                 Dr. David Musgrave                900.00
 
                 4-27-90 to 10-29-91
 
            
 
                 Iowa Methodist Medical Center     731,77
 
                 3-14-91 
 
            
 
                 Robert Hayne, M.D.                320.50
 
                 2-28-91 to 6-1-92
 
            
 
                 Radiology, P.C.                   185.00
 
                 3-14-91
 
            
 
                 Des Moines General Hospital       802.00
 
                 2-14-91
 
            
 
                 Hammer Medical Supply              47.32
 
                 6-5-90
 
            
 
                 Prescription Expense           $   59.24
 
                                        TOTAL   $3,333.83
 
            
 
                 The final issue to address is whether defendants are 
 
            entitled to a setoff of workers' compensation benefits 
 
            against the jury award in an unrelated civil action in the 
 
            Iowa District Court.  As mentioned previously, defendants 
 
            filed its motion.
 
            
 
                 Section 627.13 of the Iowa Code provides that:
 
nefits from January 19, 1991 
 
            through May 31, 1991 at the stipulated rate of five hundred 
 
            sixty-five and 03/100 dollars ($565.03) per week.
 
            
 
                 Defendants are also liable for three thousand three 
 
            hundred thirty-three and 83/100 dollars ($3,333.83) in 
 
            reasonable and necessary medical expenses pursuant to 
 
            section 85.27 of the Iowa Code.
 
            
 
                 Accrued benefits are to be paid in a lump sum together 
 
            with statutory interest at the rate of ten percent (10%) per 
 
            year pursuant to section 85.30, Iowa Code, as amended.
 
            
 
                 Defendants shall receive credit for any workers' 
 
            compensation benefits previously paid.
 
            
 
                 Costs are taxed to defendants pursuant to rule 343 IAC 
 
            4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this division and pursuant to rule 342 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MICHELLE A. MCGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. David D. Drake
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th St., Suite 500
 
            West Des Moines, IA  50265
 
            
 
            Mr. Joseph A. Happe
 
            Attorney at Law
 
            418 6th Ave.
 
            500 Liberty Building
 
            Des Moines, IA  50309-2421
 
            
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51100, 51400, 1800, 3400
 
                                          Filed December 16, 1992
 
                                          Michelle A. McGovern
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARGIE SCHAEFER-MOORE,        :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 981327
 
            IOWA BANKERS INSURANCE &      :
 
             SERVICES, INC.,              :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            FIDELITY AND DEPOSIT COMPANY, :
 
             OF MARYLAND                  : 
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51100, 51400
 
            
 
                 Claimant met her burden of proof that she had sustained 
 
            a work injury which arose out of and in the course of her 
 
            employment.  She sustained injuries to her neck, shoulder 
 
            and upper extremity.
 
            
 
            1800
 
            
 
                 Claimant was held to have sustained a 25 percent 
 
            permanent partial disability.  She was a highly qualified 
 
            insurance salesperson who was required to travel extensively 
 
            to call upon customers.  After her work injury, claimant was 
 
            able to return to work but she wore a cervical collar 
 
            whenever she traveled by car or else whenever she endured 
 
            excruciating pain.
 
            
 
                 Several months after the work injury, claimant was 
 
            terminated over her contract for compensation.  The 
 
            termination was unrelated to her work injury.  
 
            
 
                 After her termination, claimant sought conservative 
 
            treatment for her injury including osteopathic manipulative 
 
            therapy.  She also sought treatment from an orthopedic 
 
            specialist.  Eventually the orthopedist released claimant to 
 
            return to work but with restrictions.  She was precluded 
 
            from lifting weights greater than 30 pounds and from 
 
            engaging in repetitive extensions of her neck.
 
            
 
                 Claimant is 54 years old.  She was not terminated 
 
            because of her physical condition or because her permanent 
 
            restrictions precluded her from performing her assigned 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            duties.
 
            
 
                 She has had to curtail her driving because of her 
 
            condition.  She is incapable of driving as much now as she 
 
            did at the time of the work injury.  The nature of her 
 
            business depends upon making customer calls throughout the 
 
            state.  Since she is unable to travel as much, her 
 
            opportunities are lessened.  She has incurred a loss of 
 
            earning capacity, as well as a loss of earnings.
 
            
 
                 Claimant, however is not precluded from working in the 
 
            insurance industry.  She is highly qualified.  She has every 
 
            certification in her field.  She is licensed in Iowa and 
 
            other states.  She is highly educated.  Her experience is 
 
            vast.  She has had supervisory experience which is a 
 
            transferable skill.  She has many assets to offer a 
 
            prospective employer.  She is also capable of operating her 
 
            own business.  She has made some attempts to form her own 
 
            business where she can set her own hours, and establish her 
 
            own territories.
 
            
 
            3400
 
            
 
                 Defendants were not allowed a setoff against claimant's 
 
            workers' compensation benefits for a jury verdict 
 
            defendant-employer obtained for an unrelated matter in the 
 
            Iowa District Court.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BONNIE JO GLAWE,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 981347
 
            HAROLD ROWLEY RECYCLING       :
 
            CENTER,                       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This case came on for hearing on July 22, 1992, at 
 
            Storm Lake, 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 February 19, 1991.  The record in the 
 
            proceedings consist of the testimony of the claimant and 
 
            John Green; and, joint exhibits 1 through 33.
 
            
 
                                      ISSUES
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant incurred an injury on February 19, 
 
            1991, which arose out of and in the course of her 
 
            employment;
 
            
 
                 2.  Whether there is a causal connection as to any 
 
            temporary or permanent disability as a result of an alleged 
 
            February 19, 1991 work injury;
 
            
 
                 3.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits;
 
            
 
                 4.  When any benefits would in fact begin;
 
            
 
                 5.  The rate at which any benefits, if liability is 
 
            found, would be; and,
 
            
 
                 6.  Claimant's entitlement to 85.27 medical benefits.  
 
            The issues being causal connection, authorization and 
 
            reasonable and necessary treatment.  It was agreed that 
 
            liability was denied.
 
            
 
                                 FINDINGS OF FACT
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all the evidence, finds that:
 
            
 
                 Claimant is approximately 30 years old and completed 
 
            the tenth grade, quitting high school in the eleventh grade 
 
            at age 16 in 1976.  She obtained her GED around 1987 or 
 
            1988.  Claimant had additional education of seven months as 
 
            a medical secretary and was certified in CPR and received a 
 
            nurse's aide certificate and went to school to be an LPN for 
 
            one semester.  She related her work history as that 
 
            involving detasseling, consumer supply, seasonal work, 
 
            fabric care, working in a hotel, working in a clinic, 
 
            working in a nursing home, and then beginning work with 
 
            defendant employer in December 1990.  Claimant said she took 
 
            a pre-employment physical and x-rays were taken (Joint 
 
            Exhibits 5 and 6).  Claimant indicated there was no problems 
 
            concerning her physical and she was hired beginning December 
 
            17, 1990, as general labor at $5 per hour.  She eventually 
 
            changed her position and receivied $5.50 per hour.
 
            
 
                 Claimant related her duties at the plant as involving 
 
            line inspection, picking off plastic or cardboard, cleaning 
 
            windows, clearing ditches, picking up tin which blew off 
 
            truck.  She indicated that about two hours per day they had 
 
            plant cleanup.
 
            
 
                 Claimant described her motions as she worked picking 
 
            certain required things out of the junk that had been piled 
 
            at the beginning of the conveyor belt on a table that is 
 
            able to be controlled as far as speed.
 
            
 
                 Claimant said she first noticed her problem around 
 
            February 19 to 24, 1991, and reported it to her supervisor.
 
            
 
                 Claimant referred to various medical services rendered 
 
            and particularly was referred to joint exhibit 7 in which 
 
            the doctor at Buena Vista Clinic did not think claimant had 
 
            evidence of carpal tunnel at that time on April 9, 1991.  
 
            Claimant then was referred to joint exhibit 8 (May 3, 1991) 
 
            in which the doctor at that time indicated in his notes that 
 
            claimant had a mild early bilateral carpal tunnel syndrome.
 
            
 
                 On April 23, 1991, claimant indicated she was not able 
 
            to work.  This is also reflected in joint exhibit 4, page 2, 
 
            in which claimant also indicated she had lost her job.
 
            
 
                 On cross-examination, claimant acknowledged that she 
 
            had consulted an attorney on April 1, 1991.  She indicated 
 
            that when she was hired she was on a 90 day probationary 
 
            period and that her boss wanted to extend that for 30 days.  
 
            The claimant wasn't sure why it was necessary or the reason 
 
            therefor.  Claimant indicated the main reason at that time 
 
            for seeing an attorney was whether she needed to sign 
 
            another 30 day probationary period document as she had 
 
            already worked 120 days.  She indicated that while at the 
 
            attorney's and discussing this overall matter, it was 
 
            suggested that under the circumstances it would be wise also 
 
            for her to send a report of injury concerning her intent to 
 
            file a workers' compensation claim.  Claimant sent notice of 
 
            injury to the defendant employer by certified mail on April 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            6 and it was signed by the employer on April 9, 1991.  
 
            Claimant indicated the only reaction she got was being 
 
            terminated the following day, April 10, 1991.  Claimant 
 
            indicated that after she went to the doctor on April 2, 
 
            1991, as to her alleged workers' compensation injury, it was 
 
            on April 3 that she was approached regarding signing an 
 
            additional 30 day probationary slip because defendant 
 
            employer wanted to reserve the right to further observe her.  
 
            Claimant indicated that the week prior to this she was 
 
            informed she was an excellent worker and that they didn't 
 
            want to get rid of her but they also didn't want to be 
 
            liable for injuries (Jt. Ex. 33, pp. 46-49).  Claimant 
 
            acknowledged that she has never held a job for more than 120 
 
            days except possibly one job that lasted as long as five to 
 
            six months.  Claimant also indicated that she has not been 
 
            employed since April 10, 1991, nor applied for any jobs up 
 
            to the date of her deposition on July 17, 1992 (Jt. Ex. 33, 
 
            p. 52).
 
            
 
                 Claimant also indicated that it was not her intent to 
 
            go back to work in December 1990, but when the opportunity 
 
            came up to become employed, she decided to go ahead and 
 
            apply with defendant employer.
 
            
 
                 Claimant acknowledged that it wasn't until April 23, 
 
            1991, after she had left her employment that she consulted 
 
            her family physician, Patricia J. Harrison, M.D. with 
 
            complaints of difficulties with her hands and arms.  She 
 
            indicated that the company doctor, Scott Wulfkhuhler, was 
 
            unable to diagnose her condition at the time even though he 
 
            thought her symptoms were suspicious.  She indicated he did 
 
            not have the ability to perform the type of testing 
 
            necessary (Jt. Ex. 33, p. 54).
 
            
 
                 Claimant testified at the hearing as to her various 
 
            medical services, contacts with doctors and what she 
 
            understood they told her or were doing for her.  There were 
 
            about three occasions in which claimant disagreed with what 
 
            the doctor had put down in writing.  The undersigned 
 
            believes there is no reason to set out claimant's positions 
 
            or understanding concerning this medical as the medical 
 
            records will be reviewed and the necessary items will be set 
 
            out herein.  Claimant contends that her healing period began 
 
            April 23, 1991 up through February 10, 1992.  It appears 
 
            they are basing this on joint exhibit 11, page 1, which on 
 
            February 10, 1992, the doctor said he was going to release 
 
            her to work.  There are other notations on this date by the 
 
            doctor which claimant testified that she disagreed with the 
 
            doctor's notes.  The undersigned believes the disagreement 
 
            had to do with the area of her anatomy where the doctor 
 
            indicated on that date that the claimant was not having any 
 
            trouble with the numbness and tingling as she had before and 
 
            that her hands are actually feeling fairly normal.
 
            
 
                 On page 1 of joint exhibit 11, the doctor indicated on 
 
            December 30, 1991, that claimant had reached maximum 
 
            healing.
 
            
 
                 Defendants contend that if there is liability, 
 
            claimant's healing period at most began July 29, 1991, which 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            was the date claimant had her first carpal tunnel surgery 
 
            involving the right hand and claimant then reached maximum 
 
            healing through October 31, 1991.  Defendants draw that 
 
            conclusion from joint exhibit 12, page 2, in which the same 
 
            doctor as referred to above opined on October 31, 1991, that 
 
            claimant appeared to have good results from her carpal 
 
            tunnel release and that the impairment rating as to 
 
            claimant's carpal tunnel release would be zero but that due 
 
            to her persistent problem with her shoulder discomfort that 
 
            he felt to be secondary to an overuse syndrome, he opined 
 
            claimant had a 6 percent permanent impairment of the right 
 
            upper extremity and 4 percent of the left upper extremity 
 
            based on loss of motion of the shoulders.
 
            
 
                 John Green, who had worked with defendant employer as 
 
            plant manager and who has for the last five months been 
 
            working for the Sioux City Waste Department, testified that 
 
            he was familiar with claimant and that he was at defendant 
 
            employer when claimant began work.  He described claimant's 
 
            assignments and indicated he had talked to claimant and 
 
            others about missing a lot of Styrofoam in the junk by 
 
            allowing it to pass on through instead of being taken off 
 
            the conveyor.  He mentioned other occasions and other items 
 
            that were not retrieved by the claimant and others as 
 
            required.  Mr. Green indicated he was not satisfied with 
 
            claimant's performance and that he had talked with claimant 
 
            concerning this as well as others including the foreman 
 
            having talked to claimant.  Mr. Green indicated he was not 
 
            satisfied with the claimant's performance and had talked to 
 
            her more about her performance than the others.  He had 
 
            reservations as to claimant's ability to work at the tip 
 
            table position.  Mr. Green indicated that the reason for the 
 
            30 day probation periods is because of switching from one 
 
            particular job to another.  He indicated claimant's 
 
            additional 30 days was to begin March 7, 1991.
 
            
 
                 Mr. Green insisted that claimant was taken off the job 
 
            or terminated based on job performance and not her physical 
 
            complaints.
 
            
 
                 He indicated that when claimant declined to sign the 
 
            extra 30 day probation, he had already asked the commission 
 
            to evaluate claimant and the fact that she was not doing her 
 
            job correctly.
 
            
 
                 Mr. Green agreed that he did recommend claimant's 
 
            employment be terminated based on her job performance and 
 
            not on any physical condition.  Mr. Green emphasized that he 
 
            was getting complaints from another employee as to claimant 
 
            not doing her job.
 
            
 
                 Joint exhibit 5, page 1, shows a December 15, 1990 
 
            physical claimant was given and it showed nothing unusual.  
 
            Claimant's medical records over the years prior to that time 
 
            basically show nothing unusual and claimant was not 
 
            suffering any physical problems prior to beginning work for 
 
            defendant employer that would prevent her from doing the 
 
            kind of jobs required of defendant employer.
 
            
 
                 Joint exhibit 10, page 1, is the Sioux Valley Memorial 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Hospital records dated June 19, 1991, and indicated an 
 
            impression that claimant had a bilateral diffused overuse 
 
            syndrome of the upper extremities, especially flexor 
 
            tendinitis and some carpal tunnel syndrome symptoms.
 
            
 
                 The claimant has picked February 19, 1991, as to her 
 
            alleged injury date.  The undersigned is not certain from 
 
            the medical records and the nature of her condition how she 
 
            arrived at that date.  On joint exhibit 13, page 1, a July 
 
            18, 1991 letter of Dr. Rick Wilkerson, he indicates that 
 
            claimant had a bilateral carpal tunnel syndrome right worse 
 
            than on the left and indicated she can continued 
 
            conservative treatment until she was no able to tolerate the 
 
            symptoms.  Claimant indicated to him that she would like to 
 
            have something done soon because of the effect her condition 
 
            was having on her and the pain involved.  The doctor then 
 
            scheduled her for a right carpal tunnel for July 29, 1991 
 
            (Jt. Ex. 14, p. 1).  On September 9, 1991, she had a left 
 
            carpal tunnel surgery (Jt. Ex. 13, p. 2).  The undersigned 
 
            believes that as to an injury date, the actual injury date 
 
            if liability is found would be July 29, 1991 instead of the 
 
            February date.
 
            
 
                 The parties further agree that if liability is found, 
 
            the injury would be a bilateral simultaneous upper extremity 
 
            injury under 85.34(2)(s), even though there has been 
 
            indications in the record as to neck or shoulder injuries.  
 
            It is obvious from the records and the parties' stipulation 
 
            that whatever injuries there would be they would involve 
 
            claimant's upper extremity.  It would also be obvious from 
 
            the record, even though we have two carpal tunnel surgeries 
 
            involved which usually involves a wrist which is considered 
 
            part of the hand, that because of the overall medical 
 
            condition, complaints and areas of complaints concerning 
 
            claimant, when the parties refer to the upper extremity they 
 
            are referring to claimant's arms and are not using the 
 
            general terminology of extremity to refer to the particular 
 
            two hands.  If it were otherwise, the undersigned would 
 
            believe the parties would stipulate that if there was 
 
            liability found, it would be a bilateral carpal tunnel 
 
            and/or a bilateral injury to the hands.
 
            
 
                 Joint exhibit 15, page 4, is a letter drafted by 
 
            defendants' attorney posing some questions to the doctor to 
 
            nail down certain issues that were in dispute.  The 
 
            undersigned believes that this is a well drafted letter and 
 
            represents the particular issues involved and that the 
 
            doctor answered them in accordance with not only his medical 
 
            opinion but they are substantiated also by other evidence in 
 
            this record.  Dr. Wilkerson is also the surgeon who 
 
            performed claimant's bilateral carpal tunnel surgeries, left 
 
            and right upper extremities.
 
            
 
                 Defendants contend that claimant's injury did not arise 
 
            out of and in the course of claimant's employment.  The 
 
            undersigned mentioned earlier that if in fact there is an 
 
            injury, it would appear it would not be February 19, 1991, 
 
            under McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
            (Iowa 1985), but would be when claimant, because of injury, 
 
            first missed work.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 This agency has held that the deputy is not bound in 
 
            cases of this nature to the alleged injury date if another 
 
            date is more applicable.  Deheer v. Clarklift of Des Moines, 
 
            File No. 804325 (May 12, 1989); McCoy v. Donaldson Company, 
 
            Inc., File Nos. 805200 and 752670 (April 28 1989); Shank v. 
 
            Mercy Hospital Medical Center, File No. 719627 (August 28, 
 
            1989).
 
            
 
                 Claimant had a pre-employment physical.  There is no 
 
            evidence in the record that claimant was suffering from an 
 
            injury or cumulative upper extremity injury prior to 
 
            beginning employment in December of 1990 with defendant 
 
            employer.  Claimant has had a very meager work history prior 
 
            to beginning work for defendant employer and in fact for a 
 
            period of approximately from 1979 to 1989 she was not 
 
            employed at all for any practical purposes and claimant's 
 
            work history has indicated she has not worked prior to 
 
            working for defendant employer more than 120 days for anyone 
 
            except one which may have been a five to six month stint.  
 
            The undersigned finds that claimant did incur an injury 
 
            which arose out of and in the course of her employment and 
 
            this work injury occurred on July 29, 1991, which is the 
 
            date claimant had her right carpal tunnel surgery and missed 
 
            or would have missed work because of that surgery.
 
            
 
                 The defendants additionally contend that because of the 
 
            approximate two months claimant was working for defendant 
 
            that she could not in that period of time incur a cumulative 
 
            injury in that two month period of time and considering the 
 
            nature of her work.  There is some merit in defendants' 
 
            contention and yet based on claimant's history and her 
 
            physical condition, which condition the employer takes 
 
            claimant as she is, there is no other known cause in the 
 
            record why claimant would develop this type of cumulative 
 
            injury.  The nature of work at defendant employer is such 
 
            that it is evident that claimant would have to be doing 
 
            repetitive work pulling certain types of trash or recyclable 
 
            material out of trash and this required reaching, throwing, 
 
            etc., and operating at a rather fast pace.
 
            
 
                 The parties stipulated that if liability is found it 
 
            would be a simultaneous bilateral upper extremity injury 
 
            under 85.34(2)(s).  Claimant had two carpal tunnel injuries.  
 
            Claimant is also complaining of additional upper extremity 
 
            injuries or medical problems.  There is nothing specifically 
 
            in the record in which a doctor uses the word causal 
 
            connection.  Yet, taking the record as a whole and the facts 
 
            obviously show that the medical condition resulting in the 
 
            surgeries was the result of claimant's work injury, 
 
            particularly after the undersigned has found that these 
 
            injuries arose out of and in the course of claimant's 
 
            employment.  The undersigned therefore finds that claimant 
 
            incurred a work injury on July 29, 1991, which caused 
 
            claimant to incur a bilateral simultaneous upper extremity 
 
            injury.  The surgeon, Dr. Wilkerson opined that claimant had 
 
            a 6 percent and 4 percent impairment of the right and left 
 
            upper extremity, respectively (Jt. Ex. 12, page 2).  
 
            Applying 85.34(2)(s) and converting the 6 percent right 
 
            upper extremity which equals 4 percent body as a whole, and 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            the 4 percent left upper extremity impairment which equals 2 
 
            percent body as a whole and converting them under the charts 
 
            of the AMA Guides to the Evaluation of Permanent Impairment, 
 
            results in claimant incurring a 6 percent body as a whole 
 
            injury which equals 30 weeks (500 x 6%).
 
            
 
                 The parties are disputing the extent of healing period 
 
            if liability is found.
 
            
 
                 Claimant contends the healing period begins April 23, 
 
            1991, which is the date that Dr. Harrison indicated pursuant 
 
            to questions asked by claimant or a comment made by 
 
            claimant, that she was not able to work, and that said 
 
            healing period ended February 10, 1992, which is the date 
 
            claimant contends Dr. Wilkerson released her to return to 
 
            work.  Defendants contend that if liability is found, 
 
            claimant's healing period would begin July 29, 1991, the 
 
            date of her first carpal tunnel surgery and would end 
 
            October 31, 1991, which is the date Dr. Wilkerson, the 
 
            surgeon, specifically on more than one occasion indicated 
 
            was the date that claimant reached maximum healing period 
 
            (Jt. Ex. 15, p. 4).  Claimant obviously has not carefully 
 
            read 85.34(1) healing period and has chosen to pick one of 
 
            the alternatives which would best suit the claimant's 
 
            position.  Said section provides that whichever of the three 
 
            alternative first occur, is the one that applies.  In this 
 
            case at bar, the claimant reached maximum healing period on 
 
            October 31, 1991 and the undersigned so finds.  As to the 
 
            beginning date, the evidence shows that claimant was 
 
            terminated around April 10, 1991.  The undersigned does not 
 
            find that the termination was due substantially because of 
 
            claimant's physical condition or the fact that she was 
 
            claiming a workers' compensation injury.  The undersigned 
 
            believes claimant could have continued working and that the 
 
            April 23, 1991 date was the date that was more or less a 
 
            suggested or resulted from claimant's subjective complaints 
 
            and not any diagnosis by the doctor.  The undersigned 
 
            therefore finds that claimant's July 29, 1991 work injury 
 
            caused her to incur 13.429 weeks of healing period.  
 
            Therefore, any permanent partial disability benefits would 
 
            begin on November 1, 1991.
 
            
 
                 The parties are disputing the rate for which benefits 
 
            would be paid.  They agree that claimant is single with two 
 
            dependent children and, therefore, would be allowed three 
 
            exemptions.  The claimant contends that the rate should be 
 
            $106.14 and defendants contend it should be $97.53.  It is 
 
            undisputed that there were only eight weeks of wages paid to 
 
            claimant prior to the date alleged in the petition of 
 
            February 19, 1991, and, therefore, to arrive at the 13 weeks 
 
            claimant was taking five weeks after the date of alleged 
 
            injury (February 19, 1991).  Defendants contend that you 
 
            would take the eight weeks before the date of injury and 
 
            divide that by eight and arrive at the gross wages and then 
 
            arrive at the rate.  The defendants' position would be 
 
            correct if it were not for the fact that the undersigned has 
 
            found that the date of injury is July 29, 1991 instead of 
 
            February 19, 1991, and, therefore, the 13 weeks arrived by 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            the claimant would be correct since claimant did work after 
 
            the original alleged February 19, 1991 injury date.  The 
 
            problem with accepting claimant's rate which would be 
 
            $106.14 is that the undersigned has now chosen a July 29, 
 
            1991 date.  There is nothing in the record indicating the 13 
 
            weeks before that date what the claimant was making or the 
 
            hours worked and as shown by exhibit 2, the hours were 
 
            irregular.  The hourly rate was $5 as shown thereon but the 
 
            undersigned understands that claimant was eventually raised 
 
            to $5.50.  The parties seem to stipulate or indicate that 
 
            depending on what the undersigned found based on a February 
 
            19, 1991 date, that either claimant's rate or defendants' 
 
            rate would be used.  Since the claimant has not shown any 
 
            other rate criteria as to the 13 weeks before July 29, 1991, 
 
            the undersigned will use the criteria set out in joint 
 
            exhibit 2 except that instead of using the rate book 
 
            effective July 1, 1990 through June 30, 1991, which would be 
 
            proper if there is a February 19, 1991 injury, which would 
 
            amount to $106.14,  The undersigned must use the rate book 
 
            for rates effective July 1, 1991 through June 30, 1992, 
 
            which would amount to a rate of $106.56 per week.  The rate 
 
            of $106.56 is the one the undersigned finds applies in this 
 
            case herein.
 
            
 
                 The claimant contends that the defendants should pay 
 
            the substantial medical bills that are set out in the 
 
            itemization summary attached to the prehearing report, the 
 
            actual bills being represented by exhibits in the evidence.  
 
            The defendants contend that Dr. Frank J. Allender's 
 
            chiropractic bill in the amount of $1,441 is not reasonable 
 
            nor was it necessary in claimant's treatment.  The 
 
            undersigned notices on joint exhibit 31, pages 1 through 3 
 
            that the chiropractic bills began on February 27, 1992 and 
 
            went through May 28, 1992.  There is no evidence of the 
 
            necessity or reasonableness of these bills.  Claimant did 
 
            have a weight problem.  The claimant has failed to show 
 
            causal connection between these bills and her work injury 
 
            and any medical condition caused thereby.  Therefore, these 
 
            bills will be denied.  With that denial, the mileage charges 
 
            for items 32 through 66 on exhibit 21, page 2-4, in the 
 
            amount of $665 is also denied.
 
            
 
                 Claimant is also asking for certain medication drug 
 
            bills be paid by defendants and the medication represented 
 
            on exhibit 30, pages 1 and 2, are objected to by the 
 
            defendants even if liability otherwise is found herein.  
 
            Joint exhibit 30, page 1, indicates the drug bills are for 
 
            Imodium, Cephalexin and Anusol HC.      The undersigned 
 
            understands Imodium is basically for diarrhea.  Cephalexin 
 
            is an antibiotic and Anusol HC is a suppository with 
 
            hydrocortisone.  There is no evidence that the bills shown 
 
            on exhibit 30, page 1, are for any treatment of any injury 
 
            that the undersigned has found defendants responsible for 
 
            involving the July 29, 1991 work injury.  As to page 2 of 
 
            joint exhibit 30, claimant requests reimbursement for the 
 
            cost of Xanax pills in the total amount of $34.10 and $50.12 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            for the other three drugs above.  The undersigned 
 
            undersigned understands that Xanax is for anxiety symptoms 
 
            or tension and there is no evidence in this case that those 
 
            problems are connected with claimant's simultaneous 
 
            bilateral upper extremity injury of July 29, 1991.  The mere 
 
            fact that defendants deny liability does not mean that the 
 
            claimant can go and obtain unnecessary or unreasonable 
 
            medical treatment.  The undersigned finds that all of the 
 
            rest of the medical bills, pharmacy bills, or mileage 
 
            incurred therewith are to be paid by the defendants and that 
 
            they are causally connected to claimant's July 29, 1991 
 
            simultaneous bilateral upper extremity work injury.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that she received an injury on July 29, 
 
            1991, which arose out of and in the course of her 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
            (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of July 29, 
 
            1991, is causally related to the disability on which she now 
 
            bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 It is not necessary that claimant prove his disability 
 
            results from a sudden unexpected traumatic event.  It is 
 
            sufficient to show that a disability developed gradually or 
 
            progressively from work activity over a period of time.  
 
            McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 
 
            1985).  The McKeever court also held that the date of injury 
 
            in a gradual injury case is the time when pain prevents the 
 
            employee from continuing to work.  In McKeever the injury 
 
            date coincides with the time claimant was finally compelled 
 
            to give up his job.  This date was then utilized in 
 
            determining rate and the timeliness of the claimant's claim 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            under Iowa Code section 85.26 and notice under Iowa Code 
 
            section 85.23.
 
            
 
                 Iowa Code section 85.34(2)(2) provides, in part:  "The 
 
            loss of both arms, or both hands, or both feet, or both 
 
            legs, or both eyes, or any two thereof, caused by a single 
 
            accident, shall equal five hundred weeks and shall be 
 
            compensated as such."
 
            
 
                 Workers' compensation benefits for permanent partial 
 
            disability of two members caused by a single accident is a 
 
            scheduled benefit under Iowa Code section 85.34(2)(s) and 
 
            that the degree of impairment caused by a partial loss must 
 
            be computed on the basis of functional, rather than 
 
            industrial disability.  Simbro v. DeLong's Sportswear, 332 
 
            N.W.2d 886 (1983).
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with nonexpert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966).  Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co., 217 N.W.2d 531, 536 (Iowa 1974).  To establish 
 
            compensability, the injury need only be a significant 
 
            factor, not be the only factor causing the claimed 
 
            disability.  Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 
 
            348, 354 (Iowa 1980).
 
            
 
                 This agency has held that the deputy is not bound in 
 
            cases of this nature to the alleged injury date if another 
 
            date is more applicable.  The parties are obviously 
 
            considering the same medical condition and cumulative-type 
 
            injury. Deheer v. Clarklift of Des Moines, File No. 804325 
 
            (May 12, 1989); McCoy v. Donaldson Company, Inc., File Nos. 
 
            805200 and 752670 (April 28 1989); Shank v. Mercy Hospital 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Medical Center, File No. 719627 (August 28, 1989).
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant incurred a simultaneous bilateral upper 
 
            extremity injury on July 29, 1991, which caused claimant to 
 
            incur right and left carpal tunnel surgeries on July 29, 
 
            1991 and September 9, 1991, respectively.
 
            
 
                 Claimant's bilateral simultaneous upper extremity work 
 
            injury cause claimant to incur under 85.34(2)(s) 30 weeks of 
 
            permanent partial disability benefits and that said benefits 
 
            are payable at a rate of $106.56.
 
            
 
                 Claimant incurred a healing period as a result of her 
 
            bilateral simultaneous upper extremity work injury of July 
 
            29, 1991, beginning July 29, 1991 through October 31, 1991, 
 
            involving 13.429 weeks at the rate of $106.56.
 
            
 
                 Claimant incurred certain medical and drug bills that 
 
            defendants shall pay.  Defendants are not responsible for 
 
            the chiropractor bill of $1,441 represented by joint exhibit 
 
            31, pages 1-3.  Defendants are not responsible for the 
 
            pharmacy bills represented by joint exhibit 30, pages 1 and 
 
            2.  Defendants are likewise responsible for the medical 
 
            mileage incurred as a result of those bills that have been 
 
            ordered paid.  The mileage charges for items 32 through 66 
 
            on joint exhibit 21, pages 2 through 4, in the amount of 665 
 
            miles are denied as they are concerning the chiropractor 
 
            bill.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of one hundred six and 56/100 dollars 
 
            ($106.56) for the period beginning July 29, 1991 through 
 
            October 31, 1991, involving thirteen point four two nine 
 
            (13.429) weeks.
 
            
 
                 That defendants shall pay unto claimant thirty (30) 
 
            weeks of permanent partial disability benefits at the rate 
 
            of one hundred six and 56/100 dollars ($106.56), beginning 
 
            November 1, 1991.
 
            
 
                 That defendants shall pay the medical and drug bills 
 
            represented by joint exhibits 22 through 39 and 29.  If any 
 
            of those bills have been paid by any other company or 
 
            government agency, including Title XIX, and Title XIX 
 
            expects reimbursement, then defendants shall hold the 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            claimant harmless from any liability thereon and take care 
 
            of any subrogation or reimbursement.  Defendants are not 
 
            responsible for the chiropractor bill represented by joint 
 
            exhibit 31 nor the drug bills represented by joint exhibit 
 
            30, pages 1 and 2.  Defendants are responsible for 
 
            claimant's mileage incurred with the medical except than 
 
            those represented by the mileage involving the chiropractor 
 
            bill which are items 32 through 66 on joint exhibit 21, 
 
            pages 2 through 4, which involves 665 miles.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  Defendants have not 
 
            previously paid any weekly benefits.
 
            
 
                 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 a first report of injury.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of August, 1992.
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            Copies to:
 
            
 
            Mr. William D. Cook
 
            Attorney at Law
 
            209 W Willow St
 
            Cherokee IA 51012-0209
 
            
 
            Mr Cecil L Goettsch
 
            Attorney at Law
 
            801 Grand Ave  Ste 3700
 
            Des Moines IA 50309-2727
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1100; 5-1108; 5-1808
 
                                              5-1802; 5-1803; 5-2503
 
                                              Filed August 31, 1992
 
                                              Bernard J. O'Malley
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BONNIE JO GLAWE,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 981347
 
            HAROLD ROWLEY RECYCLING       :
 
            CENTER,                       :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            WAUSAU INSURANCE COMPANY,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1100; 5-1108; 5-1808; 5-1802; 5-1803
 
            Found claimant incurred a simultaneous bilateral upper 
 
            extremity injury on July 29, 1991, that arose out of and in 
 
            the course of claimant's employment, which injury caused 
 
            claimant to incur right and left carpal tunnel surgeries on 
 
            July 29, 1991 and September 9, 1991, respectively.  Claimant 
 
            awarded healing period and permanent partial disability 
 
            benefits.
 
            
 
            5-2503
 
            Claimant was allowed certain drug and medical bills and was 
 
            denied certain medical, drug and mileage bills.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            MARY DITTMER,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 981354
 
            PIRELLI-ARMSTRONG TIRE CORP., :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            ALLIANZ INSURANCE CO.,        :
 
            c/o GAB BUSINESS SERVICES,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                               STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Mary 
 
            Dittmer, claimant, against Pirelli-Armstrong Tire Corp., 
 
            employer, hereinafter referred to as Armstrong, and Allianz, 
 
            insurance carrier, defendants, for workers' compensation 
 
            benefits as a result of an alleged injury on May 21, 1989.  
 
            On September 2, 1993, a hearing was held on claimant's 
 
            petition and the matter was considered fully submitted at 
 
            the close of this hearing.
 
            
 
                 The parties have submitted a hearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the hearing report, the parties have 
 
            stipulated that an employee-employer relationship existed 
 
            between claimant and Armstrong at the time of the alleged 
 
            injury.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for 
 
            determination in this proceeding:
 
            
 
                   I. Whether claimant received an injury arising out of 
 
            and in the course of employment; 
 
            
 
                  II. The extent of claimant's entitlement to disability 
 
            benefits; and,
 
            
 
                 III. The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 Claimant, age 39, worked for Armstrong only a few weeks 
 
            before the alleged injury.  Claimant worked as a tire 
 
            builder.  Although there was some heavy lifting on occasion, 
 
            claimant only expressed problems with pushing equipment 
 
            around in her area due to several holes in the concrete 
 
            floor.
 
            
 
                 On or about May 21, 1989, claimant injured her low back 
 
            while pushing a piece of equipment.  Claimant sought and 
 
            received medical attention from the plant physician who 
 
            diagnosed muscle strain and prescribed an anti-inflammatory 
 
            medication.  Claimant was to return a few days later but did 
 
            not do so.
 
            
 
                 Claimant testified that she continued to have low back 
 
            pain and did not have chronic pain in the lower back before 
 
            the May 21, 1989 incident.  However, she did not seek 
 
            treatment after May 21, 1989 until September 1989.  At that 
 
            time she did not report any history of an incident of pain 
 
            at Armstrong.  The first mention of the pushing incident did 
 
            not occur until January 1990 to a physical therapist.  
 
            Defendants argue that this shows the lack of a work injury.  
 
            However, the company records are clear in demonstrating a 
 
            work injury.  The fighting issue is whether the May 1989  
 
            injury was a causative factor in the low back condition 
 
            requiring extensive treatment beginning in September 1989.
 
            
 
                 Claimant left her employment at Armstrong in June 1989 
 
            after a dispute with her supervisor over her attitude.  
 
            Armstrong officials testified that although she was still in 
 
            probation at the time she left, they were planning on 
 
            retaining her as a permanent employee.  Claimant never 
 
            complained to them about any back pain before she left but 
 
            had complained about pushing equipment over the plant floor 
 
            to the lead foreman.
 
            
 
                 Since September 1992, claimant has had extensive 
 
            examinations and tests to determine the cause of her chronic 
 
            low back pain.  To date, no objective abnormalities have 
 
            been found except for a mild degenerative disk disease and 
 
            physicians currently offer no further treatment or surgical 
 
            option.  One physician noted that since she has had 
 
            continuous problems for about two years, she will likely 
 
            continue to have problems in the future.  Claimant was in a 
 
            motor vehicle accident in which she rolled her van in 
 
            January 1990 which aggravated her low back.  In February 
 
            1991, she fell from a horse fracturing her wrist.
 
            
 
                 Claimant had chronic neck and upper back pain since a 
 
            whiplash injury from a motor vehicle accident in 1984.  
 
            Although one medical report reveals at least one complaint 
 
            of lower back tenderness after this accident, there does not 
 
            appear to be any significant treatment for low back pain 
 
            until September 1990.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
                 Although claimant demonstrated a work injury on May 21, 
 
            1989, she failed to show a causal connection of this injury 
 
            to her low back condition and her medical treatment 
 
            beginning in September 1989.  The time lapse was too great 
 
            between the May injury and September 1989 treatment.  More 
 
            importantly, there was no medical expert opinion causally 
 
            relating any of claimant's low back problems to any injury 
 
            in May 1989.  The only opinion in the record was from a 
 
            Daniel McQuire, M.D., which was not favorable to claimant's 
 
            case.  Although claimant may not have worked since her 
 
            employment at Armstrong, she apparently does lead an active 
 
            life as evidenced by her horseback riding accident in 1991.
 
            
 
                 The only medical bills submitted for reimbursement all 
 
            were incurred by claimant beginning in September 1990.  For 
 
            the reasons given above, they are not found to be causally 
 
            related to the May 1989 injury.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that claimant received an injury arising out 
 
            of and in the course of employment.  The words "out of" 
 
            refer to the cause or source of the injury.  The words "in 
 
            the course of" refer to the time and place and circumstances 
 
            of the injury.  See generally, Cedar Rapids Community Sch. 
 
            v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. 
 
            Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).  An employer 
 
            takes an employee subject to any active or dormant health 
 
            impairments. A work connected injury which more than 
 
            slightly aggravates the condition is considered to be a 
 
            personal injury.  Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 
 
            106 N.W.2d 591 (1961), and cases cited therein.
 
            
 
                 A disability may be either temporary or permanent.  In 
 
            the case of a claim for temporary disability, the claimant 
 
            must establish that the work injury was a cause of absence 
 
            from work and lost earnings during a period of recovery from 
 
            the injury.  Generally, a claim of permanent disability 
 
            invokes an initial determination of whether the work injury 
 
            was a cause of permanent physical impairment or permanent 
 
            limitation in work activity.  However, in some instances, 
 
            such as a job transfer caused by a work injury, permanent 
 
            disability benefits can be awarded without a showing of a 
 
            causal connection to a physical change of condition. 
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert medical opinion.  Bradshaw v. Iowa 
 
            Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  
 
            The opinion of experts need not be couched in definite, 
 
            positive or unequivocal language and the expert opinion may 
 
            be accepted or rejected, in whole or in part, by the trier 
 
            of fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974). The weight to be given to such an opinion is for the 
 
            finder of fact to determine from the completeness of the 
 
            premise given the expert or other surrounding circumstances.  
 
            Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 

 
            
 
            Page   4
 
            
 
            
 
            (1965).
 
            
 
                 Furthermore, if the available expert testimony is 
 
            insufficient alone to support a finding of causal 
 
            connection, such testimony may be coupled with non-expert 
 
            testimony to show causation and be sufficient to sustain an 
 
            award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 
 
            N.W.2d 911, 915 (1966). Such evidence does not, however, 
 
            compel an award as a matter of law.  Anderson v. Oscar Mayer 
 
            & Co. 217 N.W.2d 531, 536 (1974)
 
            
 
                 In the case sub judice, claimant was able to show a 
 
            work injury but failed to show its causal connection to the 
 
            condition upon which the claim was based.
 
            
 
                                       ORDER
 
            
 
                 1.  Claimant's petition is dismissed with prejudice.
 
            
 
                 2.  Claimant shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
            
 
                 Signed and filed this ____ day of December, 1993.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David D. Drake
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th Street  STE 500
 
            West Des Moines, Iowa  50265
 
            
 
            Ms. Patricia J. Martin
 
            Attorney at Law
 
            100 Court Avenue  STE 600
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed December 13, 1993
 
                                            LARRY P. WALSHIRE
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            MARY DITTMER,  
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 981354
 
            PIRELLI-ARMSTRONG TIRE CORP., 
 
                                              A R B I T R A T I O N
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            ALLIANZ INSURANCE CO.,   
 
            c/o GAB BUSINESS SERVICES,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.