Page   1
                     before the iowa industrial commissioner
            VICKI WILLIAMS,               :
                 Claimant,                :
            vs.                           :
                                          :      File No. 981380
            IOWA 80 TRUCK STOP,           :
                                          :     A R B I T R A T I O N
                 Employer,                :
                                          :       D E C I S I O N
            and                           :
                 Insurance Carrier,       :
                 Defendants.              :
                              statement of the case
                 This case came on for hearing on November 17, 1992, at 
            Davenport, 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 March 10, 1991.  The record in the proceeding 
            consists of the testimony of the claimant, Jim Morris and 
            Delia Meier; joint exhibits A through M and P through Y; 
            and, claimant's exhibits N and O.
                 The issues for resolution are:
                 1.  Whether an injury arose out of and in the course of 
            claimant's employment on March 10, 1991;
                 2.  Whether there is any causal connection between 
            claimant's alleged disability and the March 10, 1991 alleged 
                 3.  The nature and extent of claimant's permanent 
            disability and entitlement to disability benefits;
                 4.  Claimant's entitlement to 85.27 medical benefits.  
            The issue is causal connection and authorization;
                 5.  Whether claimant is entitled to 86.13(4) penalty 
            benefits; and,
                 6.  Payment of costs.
                                 FINDINGS OF FACT
                 The undersigned deputy, having heard the testimony and 
            considered all the evidence, finds that:
            Page   2
                 Claimant is 38 years old.  She couldn't recall when she 
            began working for defendant employer but indicated it was 
            over one year before her alleged March 10, 1991 injury.
                 Claimant mentioned only one prior employment which was 
            approximately six or seven months before she began working 
            with defendant employer.
                 Claimant testified she was injured on March 10, 1991, 
            when she turned to reach for a package of cigarettes for a 
            customer while working as a cashier for defendant employer.  
            March 10 was a Sunday and claimant was not to work March 11 
            as that was not a scheduled workday for her.  Claimant, at 
            that time, was working three days a week, Friday through 
            Sunday, for a total of 24 hours per week.  Claimant said her 
            pain started on the Tuesday after her alleged Sunday injury 
            and she had coldness and numbness in her hand and pain in 
            her shoulder.  Claimant said she went to her doctor, David 
            Nebbeling, D.O.  She said he treated her until November 
            1991, at which time he indicated he could no longer do 
            anything for her.
                 Claimant never returned to the defendant employer truck 
            stop and testified her immediate supervisor, Jim Morris, 
            told her in June or July 1991 that her job was not 
                 Claimant has not been paid any benefits.  She contends 
            she still has pain in her right arm which becomes numb and 
            cold and it hurts if it is cold outside.  She said her neck 
            feels the same way.
                 Claimant was asked several questions on 
            cross-examination and her answers were different than what 
            she indicated in her deposition taken in 1992.  Her 
            explanation as to apparent contradictions as to when she 
            first felt pain was that she distinguished pain from 
            discomfort.  She said when defendants' attorney asked her 
            about pain she didn't think that meant discomfort also.  
            Claimant attempted to further explain any contradictions 
            when she testified in her deposition she didn't experience 
            pain until two days later or when she earlier testified she 
            didn't notice anything with her neck and shoulder.  Claimant 
            thought defendants' attorney was only referring to pain and 
            not discomfort.  Claimant believes symptoms did not include 
            discomfort, only pain.  The undersigned finds claimant's 
            explanation unbelievable and not at all credible.  There is 
            no reason to further dwell in this area.  Claimant was 
            effectively impeached on several occasions.
                 Claimant asserted she has done nothing to find work 
            since June 1991 to the present.
                 Jim Morris works for defendant employer as a store 
            manager and was claimant's immediate supervisor on March 10, 
            1991.  He indicated claimant did not tell him she was 
            injured at work.  He indicated he heard of claimant's 
            allegation from Delia Meier and that he was first aware of 
            claimant's claim of injury when he saw her walk up the steps 
            at the Palmer Chiropractic Clinic around March 27, 1991.  
            Page   3
            Mr. Morris related that claimant called him between March 
            11th and the 15th that she would not be working her next 
            weekend three day shift (March 15, 16 and 17, 1991) because 
            her kids were sick.  Claimant never mentioned any work 
            injury to him.
                 Mr. Morris completely refuted claimant's claim she 
            called him in June of 1991 regarding a return to work.  He 
            emphasized he heard from no one that claimant was released 
            to return to work.
                 Mr. Morris said he received a notification from the Job 
            Service about an unemployment hearing (Joint Exhibit W) in 
            the fall of 1991 and he went to the hearing.  He said he 
            does not have a job for claimant and he has not called 
            claimant to return to work.  He indicated he did have a 
            cashier opening two weeks ago.
                 Delia Meier, a senior vice president of defendant 
            employer, knows claimant.  She first heard from claimant 
            March 27, 1991, when claimant called her and said she hurt 
            her neck and would be off work.  When she asked claimant 
            about her claimed injury, she said claimant replied that she 
            was thinking how it might have happened and could only think 
            it happened when she was reaching for cigarettes at 
            defendant employer's truck stop location.
                 Ms. Meier said neither she nor defendant employer was 
            ever notified when claimant was to return to work or able to 
            return to work.  She indicated she never called a doctor or 
            claimant to find out either.
                 Ms. Meier said she received a call from claimant in 
            November of 1991 and claimant asked her to stop Mr. Morris 
            from fighting her unemployment claim.  Ms. Meier said at no 
            time did claimant indicate that she wanted to return to 
            work.  Ms. Meier did not call a doctor regarding a 
                 Byron W. Rovine, M.D., a neurologist, testified through 
            his deposition taken on May 20, 1992.  The doctor testified 
            he saw claimant for the first time on April 3, 1991, and 
            again on April 12, 1991, at which time he referred her back 
            to the Work Well Center which was the center which referred 
            her to him in the first place.  He indicated that he noticed 
            marked tenderness and muscle spasms in claimant's right 
            scapular space.  The left biceps reflex was plus 2 and the 
            right biceps reflex was plus 1 and was less active than the 
            left.  The triceps reflex was plus 1 bilaterally.  The 
            doctor went on to explain what else his examination measures 
            revealed and indicated that he felt there was ample 
            objective evidence of a sixth cervical nerve radiculopathy 
            (Joint Exhibit A, pages 7 and 8).  He further indicated that 
            the myelogram he gave claimant was negative which indicated 
            to him that he was dealing with something other than a disc 
            problem and that claimant's symptoms were consistent with a 
            sick nerve root irritation of some sort due to trauma.  The 
            doctor indicated that in cases of severe trauma he might see 
            a picture of radiculopathy immediately or very early on but 
            that more typically it develops over a period of days or 
            Page   4
            weeks and that it is not likely there will be any symptoms 
            whatsoever between the trauma and the commencement of 
                 The doctor further indicated that he didn't believe a 
            patient could be totally asymptomatic following an injury 
            sufficient to result later on in the development of 
            radiculopathy but he also indicated that the amount of pain, 
            discomfort or other symptomatology very frequently may be 
            relatively minor for quite some time following the 
            strain-type injury, certainly mild enough to permit the 
            patient to go on working (Jt. Ex. A, pp. 9 and 10).
                  Dr. Rovine's notes reflect that due to claimant's 
            complaints he thought there was possible cervical 
            radiculopathy or possible cervical disc herniation but he 
            had a myelogram done and this showed no evidence of disc 
            herniation.  Also, the diagnostic studies completely failed 
            to demonstrate any compression or impingement upon the 
            clinically involved nerve root and surgery was not 
            indicated.  His notes on April 12, 1991, indicate that the 
            patient may be suffering from traumatic radiculopathy and he 
            recommended additional conservative treatment.  His 
            examination had shown some clinical evidence of 
            radiculopathy (Jt. Ex. A-18 and A-19).
                 On July 16, 1991, Dr. Rovine wrote a letter indicating 
            that his assumption was that the injury to the nerve root 
            was due to direct trauma from the strain-type movement of 
            her neck that initiated the problem.  He went on to indicate 
            that manipulation of the neck of an individual suffering 
            from either a disc extrusion or traumatic injury to her 
            nerve root would be well calculated to aggravate the 
            problem.  He made it clear that chiropractic treatment would 
            be contra-indicated and would have definite potential for 
            aggravating the patient's condition.  Two days later in a 
            letter to the defense attorney, he again indicated that 
            claimant's condition could have been aggravated by the care 
            she received at Palmer Clinic but would not be influenced by 
            the specific cause of her condition (Jt. Ex. A-21 and A-22).  
            The radiology report of April 12, 1991, leaves the 
            impression of "[e]quivocal findings at C5-6 on the right 
            which may represent a cut-off of the nerve root on the right 
            at C5-6 level.  The remainder of the cervical myelogram is 
            normal." (Jt. Ex. C-13.)
                 David A. Orme, D.C., testified through his deposition 
            on May 12, 1992 (Jt. Ex. F).  He testified he first saw 
            claimant on June 12, 1991, pursuant to a referral by Dr. 
            Nebbeling.  The doctor indicated that he saw her only the 
            one time for the evaluation and treatment.
                 The doctor described in detail the nature of his 
            examination, the use of equipment and the EMG.  He talked 
            about how sensitive the equipment he used is even to the 
            extent that sometimes he worries more about it showing 
            something else that would be excessive.  He testified that 
            the findings on the EMG showed nothing (Jt. Ex. F-15).
                 The doctor testified as to the range of motion tests 
            Page   5
            one, two and three which involved muscle positioning, 
            forward flexion, bending, etc., and all of these were double 
            zero all the way across the board.  He indicated no spasms 
            or nerve root interference.  The doctor then indicated that 
            "[t]he significant thing of this, this whole test was one of 
            the clearest EMGs I've ever seen, quite frankly.  I do a lot 
            of these, and there was no indication in this entire test 
            whatsoever of any excessive electrical activity or muscle 
            spasm." (Jt. Ex. F-20)
                 The doctor then testified as to some orthopedic and 
            neurologic examinations involving checking reflexes, etc., 
            and in all of these instances the claimant claimed that she 
            hurt.  The doctor emphasized that claimant's complaints were 
            all subjective within the control of patient and were not 
            objective findings (Jt. Ex. F-23).
                 The doctor then referred to his June 12, 1991, notes 
            and indicated that claimant told him she had been hurting 
            constantly for three months with pain in the back and 
            something about a rash on her arm.  The doctor then did a 
            quick biochemical test to see if there was a chemical reason 
            for her pain and found a positive for Candida albicans 
            histamine.  He indicated this is an abnormal growth of 
            bacteria in the abdomen and is usually caused by antibiotics 
            or other drug use or excessive sugar, etc.  The doctor 
            indicated that histamine is a natural response released from 
            the mass cells which can go overboard in cases of an 
            allergic or hypersensitive reaction.  This can cause 
            inflammation and pain in the body (Jt. Ex. F-25).  The 
            doctor indicated that he had some recommendations as to what 
            could be done subsequently but that he did not get a chance 
            to discuss his findings with the claimant thoroughly and she 
            was very uncooperative and indicated that she had already 
            done this before and that she didn't want to go through it 
            again and wanted to get out of there in a hurry.  The doctor 
            indicated he scheduled an appointment for her but she never 
            showed up so he never did have a chance to go over the 
            findings with her (Jt. Ex. F-26).  The doctor then referred 
            to his records and read the following:  "My initial thoughts 
            were that this patient was malingering, i.e., negative EMG, 
            and her overreaction to even light contact.  Also it was 
            observed that even though during the exam the patient had 
            difficulty with light palpation and movement, when her 
            friend asked her a question, she turned her head with no 
            obvious difficulty.  I'm not convinced that she's not 
            playing this up some."  (Jt. Ex. F-31 and F-32).  The doctor 
            further indicated that there was inconsistencies in the 
            objective findings versus the subjective complaints.  He 
            indicated he saw nothing that claimant couldn't perform. 
            (Jt. Ex. F-32).  On cross-examination by claimant's 
            attorney, she was asked whether she disagreed with Dr. 
            Rovine's diagnosis.  Dr. Orme indicated that he didn't see 
            any diagnosis and that he felt Dr. Rovine's records 
            indicated he couldn't find anything wrong with claimant and 
            sent her back to the work place.  He did acknowledge that 
            Dr. Rovine indicated the claimant's examination has shown 
            some clinical evidence of radiculopathy but that the 
            diagnostic studies had completely failed to demonstrate any 
            compression or impingement upon the clinically involved 
            Page   6
            nerve root (Jt. Ex. F-34).
                 David P. Nebbeling, D.O., testified through his 
            deposition on April 29, 1992.  He had a complete copy of 
            office records from September 1990 to December 1991, the 
            dates in which he treated claimant for whatever she came in 
            for.  He referred to a September 27, 1990 visit in which 
            claimant came in for a sore throat and cough.  He also 
            examined her thoracic spine and found tenderness along the 
            thoracic vertebrae 1 through 4.  She was also tender at the 
            first joint of her neck.  The diagnosis at that time was 
            bronchitis and symptomatic dysfunction (Jt. Ex. H-10).  He 
            then referred to an October 4, 1990 visit.  At that time his 
            findings included tenderness of her ribs in the thoracic 
            vertebrae 1 through 4 and he gave her an osteopathic 
            manipulation.  His records on October 9, 1990, showed 
            positive findings at C-3 and thoracic vertebrae 1 through 4.  
            He gave her an osteopathic manipulation again and found 
            somatic dysfunction (Jt. Ex. H-13).
                 In his examination of October 17, 1990, he found 
            restriction in claimant's right and left side of C-1 through 
            7 and tenderness both in her right and left trapezius 
            muscles.  He also found palpable findings in both right and 
            left side of T1 through 4 and that there was dysfunction on 
            the lateral side of her ribs, both the right and left side 
            of her rib cage.  The doctor gave her osteopathic 
            manipulation and referred her to Dr. Mahadavia, who is a 
            pulmonologist (Jt. Ex. H-15).
                 The doctor testified that on January 19, 1991 claimant 
            came in and said she had trouble sleeping, felt depressed 
            and fatigued and had recurrent thoughts of suicide.  She had 
            an increase in smoking, eating and weight.  She also 
            indicated she had a teenage child that she was concerned 
            about who was using drugs at the time.  His assessment was 
            that claimant had depression and started her on Prozac to 
            treat it.
                 On February 20, 1991, claimant reported to the doctor 
            that she was having trouble sleeping.  At that time, he 
            found a palpable findings of the cervical vertebrae 1, 2 and 
            3 and her right first rib was elevated as were the rest of 
            the ribs.
                 On February 28, 1991, when the doctor saw her, he found 
            that claimant was restricted in the cervical vertebrae 1, 2 
            and 3 on the right.  Her right rib was elevated and she was 
            restricted on the thoracic vertebrae 1 through 4 on the 
            right side.
                 Claimant then visited him on March 15, 1991, at which 
            time she mentioned she had a problem in her right trapezius 
            and in the area between her neck and shoulder.  She had 
            problems with the muscles between her neck and shoulder (Jt. 
            Ex. H-19).  On his examination on this date, he found there 
            was a great increase of the lordosis of the cervical spine.  
            He also noted increased kyphosis of the thoracic spine or 
            the area below the neck (Jt. Ex. H-20).  Her assessment at 
            that time was somatic dysfunction and he applied osteopathic 
            Page   7
            manipulation (Jt. Ex. H-23).  The doctor continued to 
            testify as to his treatment, examination and claimant's 
            complaints.  His assessment appeared to continue to be 
            somatic dysfunction of the cervical thoracic spine and right 
            extremity and depression.  He then assessed the claimant 
            with the possibilities of a cervical motion study, EMG and 
            mild therapy with Dr. Orme.  This visit appeared to be 
            around May 5, 1991.
                 The doctor indicated that on her visit on July 11, 
            1991, she was complaining of tingling in her right hand and 
            fingers and the right side of her back (Jt. Ex. H-40).  The 
            doctor continued to testify as to claimant's complaints and 
            on August 7, 1991, he still had claimant's assessment as 
            somatic dysfunction with muscle spasm.  He offered her 
            Prozac again for her depression (Jt. Ex. H-48).  On October 
            9, his assessment was depression (Jt. Ex. H-53).
                 Dr. Nebbeling then referred to his June 19, 1991 report 
            identified as deposition exhibit 3, which is also exhibit H-
            80 and H-81, in which he diagnosed the claimant's condition, 
            although not a complete one as an inflammation of the right 
            bronchial plexus and multiple somatic dysfunction due to the 
            sudden movement at work on March 10, 1991.  He based this on 
            this history given to him by claimant (Jt. Ex. H-58).  He 
            also issued restrictions June 19, 1991 and then again on 
            November 19, 1991 (Jt. Ex. H-80, H-83 and H-86).
                 Exhibit N-1 is an April 6, 1992 letter from Barry L. 
            Fischer, M.D., who examined claimant at her attorney's 
            request on March 30, 1992.  He opined that claimant had a 
            permanent partial functional impairment of a whole person of 
            5 percent as a result of injuries sustained on March 10, 
            1991.  The undersigned notes that in this four-page report 
            the history of the claimant is very deficient as to her true 
            medical history including her pre-March 10, 1991 medical 
                 Claimant claims she incurred an injury on March 10, 
            1991, while working at defendant employer, when she turned 
            to get cigarettes for a customer.  It is not unusual that 
            one can incur back problems through little body movements, 
            even sneezing.
                 The medical records reflect that claimant was having 
            considerable problems prior to March 10, 1991, and these 
            included a period of time within a month of her alleged 
            injury.  Claimant had pain and problems in her cervical and 
            thoracic area, had general somatic dysfunction prior to 
            March 10, 1991.  The medical records seem to indicate that 
            this continued on into the present.  It is obvious to the 
            undersigned that in those cases in which the doctor either 
            refers to or seems to state a causal connection, the medical 
            history given to the doctor was void of or very deficient as 
            to claimant's medical history prior to the March 10, 1991.  
            It is obvious that claimant had personal problems with 
            herself and the family prior to March 10, 1991, and that 
            these problems at one time or another continued on after 
            that date and that claimant has been in a depressed 
            situation prior to and after March 10, 1991.
            Page   8
                 The undersigned finds that claimant's credibility in 
            many instances to be suspicious and, in fact, not credible.  
            The undersigned believes the store manager, Mr. Morris, and 
            the defendant employer's senior vice president, Delia Meier, 
            as to their understanding of, or lack of knowledge of the 
            circumstances surrounding claimant's alleged injury, any 
            complaint of injury, and whether certain conversations 
                 The undersigned finds it unbelievable as to the 
            claimant's explanation of the difference in discomfort and 
            pain and her logic as to what she understood when asked the 
            question whether she had discomfort or pain.
                 A question might arise as to whether events on March 
            10, 1991 may have substantially or materially aggravated or 
            lighted up a preexisting condition.  The undersigned 
            believes the greater weight of evidence shows that there was 
            not a substantial aggravation or lighting up of claimant's 
            preexisting medical condition.  The undersigned finds that 
            basically there was a continuation of claimant's pre-March 
            10, 1991 medical complaints or condition and that her 
            physical condition was such that any type of body movements 
            or natural movement or daily living, whether at work or at 
            home, could aggravate or cause problems due to her somatic 
            dysfunction and cervical thoracic problems for which she had 
            been treated over a period of time before March 10, 1991, 
            including such treatment within a month of March 10, 1991.  
            The undersigned therefore further finds that there is no 
            causal connection between claimant's alleged disability and 
            any alleged March 10, 1991 work injury.  With these two 
            issue being resolved, the undersigned finds it is 
            unnecessary to continue on with any further elaboration or 
            disposal of any remaining issues as they now become moot in 
            light of the above findings.  The undersigned therefore 
            finds that claimant takes nothing from these proceedings.
            Page   9
            conclusions of law
                 Claimant has the burden of proving by a preponderance 
            of the evidence that she received an injury on March 10, 
            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 March 10, 
            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, 261 Iowa 352, 154 
            N.W.2d 128.
                 While a claimant is not entitled to compensation for 
            the results of a preexisting injury or disease, the mere 
            existence at the time of a subsequent injury is not a 
            defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 
            908, 76 N.W.2d 756, 760-61 (1956).  If the claimant had a 
            preexisting condition or disability that is aggravated, 
            accelerated, worsened or lighted up so that it results in 
            disability, claimant is entitled to recover.  Nicks v. 
            Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 
                 When an aggravation occurs in the performance of an 
            employer's work and a causal connection is established, 
            claimant may recover to the extent of the impairment. 
            Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 
            N.W.2d 591, 595 (1960).
                 The Iowa Supreme Court cites, apparently with approval, 
            the C.J.S. statement that the aggravation should be material 
            if it is to be compensable.  Yeager v. Firestone Tire & 
            Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. 
            Workmen's Compensation sec. 555(17)a.
            Page  10
            It is further concluded that:
                 Claimant did not incur an injury which arose out of and 
            in the course of her employment on March 10, 1991.
                 Claimant's alleged disability was not caused by any 
            work injury that arose out of and in the course of her 
            employment on March 10, 1991.
                 Claimant's alleged March 10, 1991 injury did not 
            materially aggravate, light up or heighten any preexisting 
            condition that claimant may have had.
                 Claimant's preexisting medical condition is the cause 
            of and was a continuing condition that has resulted in 
            claimant's current medical or disability condition.
                 Any medical report that may have causally connected 
            claimant's medical condition and disability to a March 10, 
            1991 alleged work injury was based on an incomplete or 
            totally deficient pre-March 10, 1991 medical history of the 
                 Claimant did not carry her burden of proof as to the 
            issues herein.
                 Claimant was not a credible witness.
                 THEREFORE, it is ordered:
                 That claimant takes nothing from these proceedings.
                 That claimant is to pay the cost of this action.
                 Signed and filed this ____ day of December, 1992.
                                          BERNARD J. O'MALLEY
                                          DEPUTY INDUSTRIAL COMMISSIONER
            Copies to:
            Mr Peter M Soble
            Attorney at Law
            505 Plaza Office Bldg
            Rock Island IL 61201
            Ms Linda E Frischmeyer
            Attorney at Law
            200 Plaza Office Bldg
            P O Box 3250
            Rock Island IL 61204-3250
                                          5-1100; 5-1402.30; 5-1108
                                          Filed December 3, 1992
                                          Bernard J. O'Malley
                     before the iowa industrial commissioner
            VICKI WILLIAMS,               :
                 Claimant,                :
            vs.                           :
                                          :      File No. 981380
            IOWA 80 TRUCK STOP,           :
                                          :     A R B I T R A T I O N
                 Employer,                :
                                          :       D E C I S I O N
            and                           :
                 Insurance Carrier,       :
                 Defendants.              :
            Found claimant did not incur an injury which arose out of 
            and in the course of her employment.
            Found no causal connection as to claimant's alleged 
            disability and alleged work injury.
            Found preexisting condition was not materially or 
            substantially aggravated or lighted up by any alleged work 
            Claimant took nothing.
         JACQUELINE FERNANDEZ,         :
              Claimant,                :       File No. 981387
         vs.                           :         A P P E A L
         2800 CORPORATION, d/b/a       :       D E C I S I O N
         BOTTOMS UP LOUNGE,            :
              Employer,                :
              Defendant.               :
              The record, including the transcript of the hearing before 
         the deputy and all exhibits admitted into the record, has been 
         reviewed de novo on appeal.  The decision of the deputy filed May 
         29, 1992 is affirmed and is adopted as the final agency action in 
         this case, with the following additional analysis:
                In order to establish entitlement to workers' compensation 
         benefits, a claimant must show that the injury arose out of and 
         was in the course of the employment.  In the instant case, 
         claimant's ingestion of alcohol was clearly a part of her work.  
         The employer not only condoned the consumption of alcohol, but 
         encouraged and even required it by setting a quota of drinks each 
         dancer was to have had bought for her by customers.
              The fact that claimant could have ordered non-alcoholic 
         drinks is irrelevant.  To consider claimant's conduct in ordering 
         alcoholic drinks instead of non-alcoholic drinks would inject 
         into the analysis an element of contributory negligence by the 
         claimant.  Contributory negligence is an aspect of tort law and 
         has no application to workers' compensation.
              Claimant's consumption of alcohol during her work hours was 
         akin to ingestion of a toxic substance or fumes in an industrial 
         setting.  Claimant's alcohol consumption clearly arose out of her 
              However, claimant must show that the injury arose out of the 
         employment.  If claimant can show that her injury is caused by 
         her consumption of alcohol, and claimant has shown that her 
         consumption of alcohol arose out of her employment, she will have 
         shown that her injury also arose out of her employment.
              If claimant had been operating the vehicle in which she was 
         injured, the causal connection between her consumption of alcohol 
         and her injuries would be clearer, as the alcohol in her system 
         would likely be the cause of the accident.  Here, however, 
         claimant was not operating the vehicle, but rather was a 
         passenger in the vehicle.  It is true that the driver of the 
         Page   2
         vehicle was also an employee and was also intoxicated.  But a 
         question remains whether claimant's own intoxication contributed 
         to her injuries.  It was the intoxication of the driver that led 
         to the accident.  It is arguable that claimant would have 
         suffered the same injuries whether she was intoxicated or not, 
         simply due to her presence in the vehicle.  It is also arguable, 
         however, that claimant's impaired judgment from her intoxication 
         was at least in part responsible for her decision to enter the 
         vehicle with the apparent knowledge that the driver would be 
         operating under the influence of alcohol.  Claimant clearly knew 
         that April was intoxicated, as the bartender had asked both of 
         them to leave because of their intoxicated state. 
              Claimant's presence in the vehicle in an intoxicated state 
         and the resulting accident and injuries to claimant arose out of 
         her employment.
              Claimant must also show that her injuries occurred while in 
         the course of her employment.  Normally, under the "going and 
         coming" rule, an employee is not in the course of her employment 
         after leaving the work site and while traveling home.  Clearly, 
         claimant's work duties had ended and she had left the employer's 
         premises.  The employer no longer had control over her 
         activities.  Claimant was not like a traveling salesperson, who 
         has no fixed place of business, but rather had a fixed site where 
         she performed her work during specified hours.  At the time of 
         the accident that caused claimant's injuries, she had clearly 
         left her place of employment and ended her work duties.
              Nevertheless, one aspect of claimant's work followed her 
         beyond the door of the bar.  The alcohol the employer encouraged 
         her to ingest was still in her system, and continued to affect 
         her.  Professor Larson has recognized an exception to the normal 
         intoxication defense where an employer encourages the employee to 
         ingest alcohol and the ingestion results in injury.  Professor 
         Larson cites cases where the intoxication defense was held not to 
         apply where the employee was injured under circumstances that 
         would otherwise clearly be outside the course of employment.  In 
         McCarty v. Workmen's Comp. (App. Bd., 12 Cal. 3d 677, 117 Cal. 
         Rptr. 65, 527 P. 2d 617 (1974), quoted by Professor Larson in 
         section 34.36, p. 6-131, an employee that had consumed alcohol at 
         a company Christmas party was injured while driving home from the 
         party.  The intoxication defense was denied because the employer
         Page   3
         had encouraged the consumption.  Clearly, an employee on their 
         way home from a Christmas party would not normally be in the 
         course of their employment, but it was impliedly held that the 
         alcohol consumption at a Christmas party that was in the course 
         of employment extended the employment during the trip home when 
         the alcohol was still affecting the employee.  Also see 
         Flavorland Indus., Inc., v. Schumacker, 32 Wash. App. 428, 647 
         P. 2d 1062 (1982), where the Washington court held that an 
         employee encouraged to drink at social outings with potential 
         buyers was in the course of his employment when he was injured 
         driving home from one such meeting.  The court reasoned that 
         while intoxication is normally an abandonment of the employment, 
         where the intoxication is encouraged by the employer no 
         abandonment occurs.
              In Tate v. Industrial Acc. Comm'n, 120 Cal. App. 2d 657, 261 
         P.2d 759 (1953), it was held that an employer who encourages an 
         employee to drink was held liable for the employee's injuries on 
         his way home, with the statement that "to send an intoxicated 
         employee onto a busy highway in a company car is not furnishing 
         him with a safe place to work."
              In a case closely on point, Larson quotes Panagos v. 
         Industrial Commission, 171 Ill. App. 3d 12, 120 Ill. Dec. 836, 
         524 N.E.2d 1018 (1988), involving a belly dancer who was 
         encouraged by the employer to drink and socialize with customers 
         between dancing sessions.  The claimant was injured on her way 
         home after work, and compensation was awarded as an exception to 
         the going and coming rule.
              In addition, Larson recognizes a "zone of employment danger" 
         or "spilled-over danger" exception to the normal going and coming 
         rule.  Where off-premises conditions are still risks of the 
         employment and cause an injury to a worker on his way to or from 
         work, those injuries should be compensable.  Larson, sec. 15.31, 
         pp. 4-92 to 4-100.
         In Iowa, we are guided by the principle that the workers' 
         compensation statutes are to be construed liberally in favor of 
         the employee, and all doubts are to be resolved in favor of the 
         employee.  Teel v. McCord, 394 N.W.2d 405, 406-407 (Iowa 1986).  
         Iowa Code 86.61(7) states:
              The words "personal injury arising out of and in the 
              course of the employment" shall include injuries to 
              employees whose services are being performed on, in, or 
              about the premises which are occupied, used, or 
              controlled by the employer, and also injuries to those 
              who are engaged elsewhere in places where their 
              employer's business requires their presence and 
              subjects them to dangers incident to the business....
              The employer argues that claimant's blood alcohol level of 
         .149 was a "low blood level."  On the contrary, claimant was 
         substantially beyond the level at which a person is considered 
         under Iowa law to be too intoxicated to operate a motor vehicle.  
         Page   4
         The employer also attempts to attribute claimant's condition to 
         various illegal drugs she consumed in the 24 hour period prior to 
         the accident.  The record does not show how much of these drugs 
         were still in her system at the time of the accident.  The record 
         only shows the amount of alcohol in her system.  In addition, it 
         is undisputed in the record that claimant's consumption of other 
         alcohol and drugs was several hours before her accident and 
         before her work shift began.  It would be improper to speculate 
         as to what effect these drugs would have on her at 2:51 a.m. the 
         next morning without expert medical evidence on that question.  
              It is not speculation to note that the record shows that 
         during her work shift immediately prior to the accident, claimant 
         consumed several alcoholic beverages bought for her by customers 
         pursuant to the employer's usual practice.  It is also undisputed 
         that claimant was intoxicated when she left work, as evidenced 
         both by the fact that the bartender asked claimant and April to 
         leave because they were drunk, and by the blood alcohol level.  
         The employer suggests that claimant may have consumed more 
         alcohol in the approximately 50 minutes between leaving work and 
         the accident, but there is no evidence to support this and in 
         fact such a suggestion is contradicted by claimant's testimony 
         that only one stop was made and only non-alcoholic items 
              Employer also suggests that April may have consumed alcohol 
         off the premises during a short period of time when she was 
         absent from the bar after completing her work, and then returning 
         in a change of clothing.  Again, this calls for speculation, and 
         in addition it is not necessary in this case that claimant show 
         that April's intoxication arose out of her employment.  It is 
         sufficient that claimant has shown that her own intoxication grew 
         out of the employment, and that that intoxication affected her 
         judgment to such an extent that she placed herself into a motor 
         vehicle with an intoxicated driver and suffered extensive 
         injuries as a result.
              In this case, not only is the intoxication defense not 
         available to the employer, but the employer has also extended the 
         normal course of employment beyond the normal working hours and 
         normal location.
         Page   5
         Defendant shall pay the costs of the appeal, including the 
         preparation of the hearing transcript.
              Signed and filed this ____ day of July, 1993.
                                                BYRON K. ORTON
                                           INDUSTRIAL COMMISSIONER
         Copies To:
         Mr. Sheldon M. Gallner
         Attorney at Law
         803 3rd Avenue
         P O Box 1588
         Council Bluffs, Iowa  51502
         Mr. Bill Bracker
         Attorney at Law
         501 South Main Street
         Suite 203, Kiel Building
         Council Bluffs, Iowa  51503
                                          1101; 1601
                                          Filed July 29, 1993
                                          BYRON K. ORTON 
            JACQUELINE FERNANDEZ,         :
                 Claimant,                :       File No. 981387
            vs.                           :         A P P E A L
            2800 CORPORATION, d/b/a       :       D E C I S I O N
            BOTTOMS UP LOUNGE,            :
                 Employer,                :
                 Defendant.               :
            1101 & 1601- Intoxication.
                 Held:  Intoxication of a "gogo dancer" which lead to 
            her injuries in an auto accident was found to arise out of 
            and in the course of her employment and is excluded as a 
            defense under Iowa Code section 85.16.  The dancers were 
            required to hustle at least two drinks per hour from 
            customers.  Claimant became intoxicated, left the bar with 
            another dancer who was also intoxicated, and was injured in 
            a car accident.  Claimant was a passenger in the car.
                 Held that the intoxication defense was not available to 
            an employer who encouraged the consumption of alcohol and 
            the alcohol then led to the injury.  Also held that claimant 
            was in the course of her employment even though normally, 
            under the going and coming rule, she would not have been.  
            Larson cited for proposition that the course of employment 
            is, under some circumstances, extended under a "zone of 
            employment danger" beyond the normal work premises.  Here, 
            the intoxication of claimant extended the zone of employment 
            danger beyond the bar premises.  Claimant's intoxication 
            impaired her judgment to the extent she entered a vehicle 
            about to be operated by an intoxicated driver, and as a  
            result was injured.  
            Page   1
                      before the iowa industrial commissioner
            JACQUELINE FERNANDEZ,         :
                 Claimant,                :
            vs.                           :
                                          :      File No. 981387
            2800 CORPORATION, d/b/a       :
            BOTTOMS UP LOUNGE,            :
                                          :    A R B I T R A T I O N
                 Employer,                :
                 Defendant.               :       D E C I S I O N
                              STATEMENT OF THE CASE
                 This is a proceeding in arbitration brought by 
            Jacqueline Fernandez, claimant, against 2800 Corporation 
            d/b/a Bottoms Up Lounge, employer, hereinafter referred to 
            as the Lounge, defendant, for workers' compensation benefits 
            as a result of an alleged injury on September 3, 1989.  On 
            April 10, 1992, 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 pre-hearing report of con
            tested issues and stipulations which was approved and ac
            cepted 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 pre-hearing report, the parties have 
            stipulated to the following matters:
                 1. If defendant is liable for the alleged injury, 
            claimant is entitled to temporary total or healing period 
            benefits from September 3, 1989 through December 4, 1991.
                 2.  If the injury is found to have caused permanent 
            disability, the type of disability is scheduled as an injury 
            of both feet and for disfigurement in the amount of 150 
                 3.  If permanent disability benefits are awarded, they 
            shall begin as of December 5, 1991.
                 4.  At the time of injury, claimant's gross rate of 
            weekly compensation was $600.  She was single and entitled 
            to four exemptions. Therefore, claimant's weekly rate of 
            compensation is $363.41 according to the industrial commis
            sioner's published rate booklet for fiscal year 1990. 
                 5.  It was stipulated that the providers of the re
            quested medical expenses would testify as to their reason
            ableness and defendant is not offering contrary evidence.  
            The medical bills submitted by claimant at the hearing are 
            Page   2
            causally connected to the medical condition upon which the 
            claim herein is based but that the issue of their causal 
            connection to any work injury remains an issue to be decided 
                 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 or is the claim barred by 
            claimant's intoxication under Iowa Code section 85.16
                 II.  The extent of claimant's entitlement to disability 
                 III.  The extent of claimant's entitlement to medical 
                                 FINDINGS OF FACT
                 Having heard the testimony and considered all of the 
            evidence, the deputy industrial commissioner finds as 
                 A credibility finding is necessary to this decision as 
            defendant placed claimant's credibility at issue during 
            cross-examination as to the nature and extent of the injury 
            and disability.  From her demeanor while testifying, 
            claimant is found credible.
                 This claim arises from a single car auto accident which 
            occurred between 2:00 to 3:00 a.m. on the morning of 
            September 3, 1989.  The driver, a fellow employee of 
            claimant called "April" was killed in this accident.  
            Claimant was a passenger in her car.
                 At the time of this accident, claimant and April were 
            employed by the Lounge as dancers.  Their duties consisted 
            of rotating with other female dancers each night and 
            socializing with male customers when not dancing.  An 
            important job requirement was to motivate customers to buy 
            them drinks.  Each dancer had a quota of two drinks per 
            hour.  Although dancers were not required to drink alcoholic 
            beverages as non-alcoholic drinks were available, usually 
            dancers consumed in excess of six to eight alcoholic drinks 
            during their nightly duty hours from 8:00 p.m. to 2:00 a.m.  
            This consumption of alcohol by dancers was condoned if not 
            encouraged by Lounge management.  According to the oldest 
            dancer at the Lounge, dancers who drink excessively are not 
            sent home unless they get "out of hand." Other dancers tes
            tified that some dancers in the past have been punished or 
            terminated for excessive drinking.
                 Before the incident of September 3, 1989, claimant and 
            her co-dancers at the Lounge had a propensity to party heavy 
            on weekends using both alcohol and drugs. The Friday night 
            before the accident, claimant and her friends injected crank 
            or methamphetamine most of the night after drinking at work.  
            Page   3
            During the day on Saturday, September 2, 1989, claimant and 
            another dancer traveled around eastern Nebraska looking for 
            a bike race consuming part of a 12 pack of beer.  Claimant 
            testified that since she was a heavy drinker, consuming a 12 
            pack of beer would not affect her.
                 Claimant reported for work late on Saturday night, 
            September 2, 1989.  Claimant admitted that she drank heavily 
            on that night as she was quarreling with April.  She and her 
            friend had borrowed April's car earlier that day to go to 
            the bike races without asking her permission.  Claimant 
            stated that she and April became drunk and argued.  Claimant 
            denies using drugs other than alcohol that day or that 
            evening.  There is no evidence to the contrary.
                 Claimant testified that she became very drunk at work 
            on the evening of September 2, 1989.  She stated that she 
            does not deny talking about going to a party after work but 
            she cannot remember due to her intoxication.  Claimant 
            stated that the manager then told both her and April at 
            closing time that they were drunk and ordered them both to 
            leave the Lounge.  Claimant stated that she could barely 
            walk and entered April's vehicle thinking she was going to 
            take her home.  Claimant lives across the street from the 
            Lounge at Bart's motel.  However, she stated that April told 
            her after they left that she was going to her home.  The two 
            then stopped at a convenience store where claimant purchased 
            a Coke and April purchased a pickle.  Claimant stated that 
            she entered the car and took a sip of pop and the next thing 
            she knew she awoke in the hospital.  According to the Omaha 
            police report, April's car suddenly veered off the roadway 
            striking a utility pole, smashing head-on into a rock re
            taining wall.  April subsequently died from injuries she 
            sustained in the accident.
                 Claimant suffered multiple injuries including a 
            cerebral concussion, a right and left calcaneus fracture and 
            a right lateral tibial plateau fracture.  She also had 
            facial fractures and lacerations with significant loss of 
            teeth.  Although now healed, these injuries have extensively 
            disfigured her face, greatly impairing her ability to work 
            as a dancer.  She also has suffered a 10 percent permanent 
            partial impairment to both of her feet.  The views of Oscar 
            Jardon, M.D., who treated claimant after the accident are 
            uncontroverted on this matter.
                 It is found that claimant's intoxication on the evening 
            of September 2, 1989 and the morning of September 3, 1989 
            arose out of and in the course of her employment as a dancer 
            at the Lounge.  Although intoxication was not encouraged and 
            dancers could drink non-alcoholic beverages,  excessive 
            drinking of alcoholic beverages with customers was condoned 
            if not encouraged.  The minimum drink quota per hour clearly 
            contributes to this excessive drinking.  Employers such as 
            the Lounge herein should expect that the consumption of 
            numerous alcoholic beverages, which they meticulously kept 
            track of, and the amounts consumed by claimant and April 
            that evening would probably result in their intoxication.
                 It is further found that claimant's intoxication was a 
            Page   4
            substantial cause of her injuries, her resulting foot im
            pairment and facial disfigurement.  There was little dispute 
            that claimant was drunk and the Lounge manager admitted this 
            knowledge when he ordered her and April to leave the Lounge 
            that morning shortly before the accident.  All witnesses 
            agreed that the manager kept track of the number of drinks 
            hustled by the dancers each night.  Claimant could barely 
            walk and had no choice but to ride with April, even though 
            her motel room was just across the street.  It certainly was 
            not at all unusual for claimant and the other dancers to 
            spend the night elsewhere instead of their own motel rooms.  
            Whether or not April was heading for her home or a party is 
            unknown and probably will never be known.  However, April's 
            destination is irrelevant as claimant was a captive 
            passenger in her car.  Finally, claimant's judgment was 
            clearly impaired as she entered a car driven by another in
            toxicated person. April's intoxication was verified by 
            physicians at the request of Omaha police after the 
            accident.uivalent to "loss" of the member.  
            Moses v. National Union C.M. Co., 184 N.W. 746 (1922).  
            Pursuant to Code section 85.34(2)(u), the industrial 
            commissioner may equitably prorate compensation payable in 
            those cases where the loss is something less than that 
            provided for in the schedule.  Blizek v. Eagle Signal 
            Company, 164 N.W. 2d 84 (Iowa 1969).
                 In the case sub judice, it was found that claimant 
            Page   5
            suffered a 10 percent permanent loss of use to each of her 
            two feet.   Based upon such a finding, claimant is entitled 
            to a total of 30 weeks of permanent partial disability bene
            fits under Iowa Code section 85.34(2)(n) in addition to the 
            150 weeks for her disfigurement stipulated in the prehearing 
                 The parties stipulated as to the extent of claimant's 
            entitlement to healing period benefits.
                 III.  Pursuant to Iowa Code section 85.27, claimant is 
            entitled to payment of  reasonable medical expenses incurred 
            for treatment of a work injury.  Claimant is entitled to an 
            order of reimbursement if he/she has paid those expenses.  
            Otherwise, claimant is entitled only to an order directing 
            the responsible defendant to make such payments directly to 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
                 In the case at bar, given the parties' stipulations in 
            the prehearing report and the finding of a work injury, 
            claimant is  entitled to the requested medical benefits set 
            forth in exhibits 14-1.
                 1.  Defendant shall pay to claimant one hundred eighty 
            (180) weeks of permanent partial disability benefits at a 
            rate of three hundred sixty-three and 41/100 dollars 
            ($363.41) per week from December 5, 1991.
                 2.  Defendant shall pay to claimant healing period ben
            efits for the stipulated period of time at the rate of three 
            hundred sixty-three and 41/100 dollars ($363.41) per week.
                 3.  Defendant shall pay the medical expenses listed in 
            the prehearing report, exhibits 14-19.  Claimant shall be 
            reimbursed for any of these expenses paid by him.  Other
            wise, defendant shall pay the provider directly along with 
            any lawful late payment penalties imposed upon the account 
            by the provider.
                 4.  Defendant shall pay interest on weekly benefits 
            awarded herein as set forth in Iowa Code section 85.30. 
                 5.  Defendant shall pay the costs of this action pur
            suant to rule 343 IAC 4.33, including reimbursement to 
            claimant for any filing fee paid in this matter.
                 6.  Defendant shall file activity reports on the pay
            ment of this award as requested by this agency pursuant to 
            rule 343 IAC 3.1.
                 Signed and filed this _____ day of May, 1992.
                                          LARRY P. WALSHIRE
            Page   6
                                          DEPUTY INDUSTRIAL COMMISSIONER
            Copies to:
            Mr Sheldon Gallner
            Attorney at Law
            803 3rd Ave
            P O Box 1588
            Council Bluffs IA 51502
            Mr Bill Bracker
            Attorney at Law
            501 S Main St
            Ste 203 Kiel Bldg
            Council Bluffs IA 51503
                                          1101; 1601
                                          Filed May 29, 1992
                                          Larry P. Walshire
                      before the iowa industrial commissioner
            JACQUELINE FERNANDEZ,         :
                 Claimant,                :
            vs.                           :
                                          :      File No. 981387
            2800 CORPORATION, d/b/a       :
            BOTTOMS UP LOUNGE,            :
                                          :    A R B I T R A T I O N
                 Employer,                :
                 Defendant.               :       D E C I S I O N
            1101 & 1601- Intoxication.
                 Held:  Intoxication of a "gogo dancer" which lead to 
            her injuries in an auto accident was found to arise out of 
            and in the course of her employment and is excluded as a 
            defense under Iowa Code section 85.16.  The dancers were 
            required to hustle at least two drinks per hour from 
            customers.  It was opined that if a bar condones and 
            encourages excessive drinking by employees, then the scope 
            of employment does not end at the bar doorway.  It extends 
            until the work related intoxication subsides, or is 
            maintained or increased by the employee with drinking 
            outside of the work environment.
            MICHELE LUEHRING,             :
                 Claimant,                :
            vs.                           :
                                          :      File No. 981389
            FURNAS ELECTRIC COMPANY,      :
                                          :  A R B I T R A T I O N
                 Employer,                :
                                          :      D E C I S I O N
            and                           :
                 Insurance Carrier,       :
                 Defendants.              :
                              STATEMENT OF THE CASE
                 This is a proceeding in arbitration brought by Michele 
            Luehring, claimant, against Furnas Electric Company, 
            employer, and Liberty Mutual, insurance carrier, defendants, 
            to recover benefits under the Iowa Workers' Compensation Act 
            as a result of an occupational disease (asthma) on October 
            3, 1990, caused by claimant's work environment.  This matter 
            came on for hearing before the undersigned deputy industrial 
            commissioner on October 5, 1992, in Des Moines, Iowa.  The 
            record was considered fully submitted at the close of the 
            hearing.  The claimant was present and testified.  Also 
            present and testifying were Mary Finn, an industrial 
            hygienist; Melvin Bobo and Amy Desenberg-Wines, vocational 
            rehabilitation consultants.  Documentary evidence identified 
            in the record consists of claimant's exhibits 1 through 5 
            and defendants' exhibits A, B and C.
                 Pursuant to the prehearing report and order dated 
            October 5, 1992, the parties have presented the following 
            issues for resolution:
                 1.  Whether claimant's occupational disease is a cause 
            of permanent disability; and
                 2.  The extent of entitlement for weekly compensation 
            for permanent disability.
                                 FINDINGS OF FACT
                 The undersigned has carefully considered all the 
            testimony given at the hearing, arguments made, evidence 
            Page   2
            contained in the exhibits herein, and makes the following 
                 At the hearing, claimant testified that she is 28 years 
            old and completed the twelfth grade of school.  Claimant is 
            a certified nursing assistant and worked as a nurse's aide 
            from 1979 to 1982.  Other work activity performed by 
            claimant includes wire harness assembler, assembly line 
            inspector, cashier/checker, shift manager/crew trainer, and 
            switch builder.  Claimant commenced working for employer in 
            March 1990.  She testified that in October 1990, she worked 
            a 40-hour week and earned $5.71 per hour.  Claimant was 
            terminated from employment with employer on February 22, 
            1991, based on doctor's orders.  She has not worked since 
            that time and only made a serious job search three months 
            prior to hearing.
                 The pertinent medical evidence of record reveals that 
            claimant was referred by G.N. Fotiadis, M.D., to the 
            University of Iowa Occupational Medicine Clinic on December 
            6, 1990, for evaluation.  Claimant was seen by Pope Moseley, 
            M.D.  Claimant related to Dr. Moseley that she began 
            experiencing symptoms of lightheadedness, shortness of 
            breath and productive cough with wheezing in September 1990.  
            On October 3, 1990, she was treated in the emergency room 
            for acute shortness of breath.  She related her symptoms of 
            respiratory distress to her work environment.  A general 
            physical examination at this time was unremarkable with 
            clear lung sounds and normal spirometry and lung volumes.  
            She was asked to obtain a list of all chemical agents to 
            which she was exposed and to return in two months (exhibit 
            2, page 1).  
                 Claimant was re-evaluated in the Occupational Medicine 
            Clinic on February 7, 1991.  At this time, Material Safety 
            Data Sheets were reviewed and it was found that she was 
            exposed to a compound called Super Bond that has a 
            cyanoacrylate in it.  Dr. Moseley reported on February 11, 
            1991, that a Methacholine challenge at time of examination 
            was strongly positive suggesting evidence of asthma.  He 
            recommended that she not return to work with employer (ex. 
            2, p. 2).
                 Based on Dr. Moseley's recommendation, claimant was 
            notified by employer's personnel manager on March 1, 1991, 
            that her termination with the company was processed on 
            February 22, 1991 (ex. 4, p. 2).
                 On March 12, 1991, Dr. Moseley reported to claimant's 
            attorney that after reviewing the pertinent evidence, he 
            concluded that claimant was exposed to an adhesive 
            containing cyanoacrylate (trade name Super Bonder 416).  He 
            stated that:
                 ...The cyanoacrylates are a group of low molecular 
                 weight adhesives which polymerize rapidly and form 
                 very strong bonds.  They are used in a large 
                 number of industrial processes primarily in the 
                 assembly of small components such as switches.  
                 The toxicity from these compounds is of two forms.  
            Page   3
                 First, cyanoacrylate easily decomposes into 
                 formaldehyde and cyanoacetate, so it is an 
                 irritant which can cause inflammation of the eyes 
                 and membranes of the nose, mouth and throat.  For 
                 this reason it is recommended that contact with 
                 the skin and eyes be avoided and that the vapor 
                 not be breathed.
            (exhibit 2, page 3)
                 On April 16, 1991, claimant was referred to Michael J. 
            Makowsky, M.D., for an independent medical examination.  Dr. 
            Makowsky echoed Dr. Moseley's opinion that claimant has 
            documented exposure to cyanoacrylates which resulted in 
            claimant's development of allergic asthma.  Dr. Makowsky 
            opined that claimant is capable of being employed in an 
            occupation where cyanoacrylates are not used.  He also 
            stated that, "In view of her normal pulmonary function 
            testing, it is very difficult to determine a functional 
            impairment rating using the American Association's 
            `Guidelines to the Evaluation of Permanent Impairment.' (ex. 
            1, p. 2).
                 On June 24, 1991, Dr. Makowsky reported that, "If we 
            use the AMA guides, she has sustained a zero percent 
            permanent impairment rating." (ex. 1, p. 4).
                 Mary Finn testified that claimant's history of being 
            exposed to a sensitizing pulmonary agent precludes her from 
            working in any industry where she would be exposed to 
            cyanoacrylates.  However, she is not precluded from working 
            in chemical free service area occupations.  
                 Claimant's vocational expert, Melvin Bobo, identified 
            jobs which claimant would be able to perform such as 
            receptionist, secretary and customer service representative.  
                 On May 13, 1991, defendant insurance company employed 
            Lori Hackett, rehabilitation consultant with Resource 
            Opportunities, Inc., to meet with claimant and perform a 
            vocational assessment.  On May 31, 1991, Ms. Hackett filed a 
            comprehensive report in which she reviewed claimant's 
            medical, vocational and educational history, motivation, 
            skills and abilities.  Using all of the above factors, Ms. 
            Hackett targeted jobs in the Iowa job market which claimant 
            would be able to perform.  Such jobs included, among others, 
            cashier/checker, counter supervisor, hospital-admitting 
            clerk, general clerk, bank messenger, telephone operator, 
            receptionist, and office helper (ex. A).
                 A follow-up consultation with claimant was performed by 
            Ms. Hackett on June 4, 1991.  Prior to meeting with 
            claimant, Ms. Hackett conducted job development activities 
            in claimant's geographic area and identified two jobs for 
            quality control inspector, a certified nursing assistant job 
            with a local nursing home and positions with Hardee's and 
            Casey's.  The jobs paid between $4.50 and $5 an hour.  The 
            job leads were given to claimant but she indicated that she 
            preferred to attend school at Iowa Southwest Community 
            College in Creston and study microcomputers.  Ms. Hackett 
            Page   4
            obtained a financial Pell Grant application for client and 
            referred her to the state vocational rehabilitation and JTPA 
            for assistance with tuition, fees, transportation, and child 
            care.  Claimant, although planning for a July wedding, 
            followed through with the assigned tasks.  She did manifest 
            concern about losing her medical coverage through the AFDC 
            program should she obtain immediate employment (ex. A).
                 On July 30, 1991, Ms. Hackett reported that claimant 
            had been accepted at the college and was scheduled to 
            register for classes on August 27, 1991.  In August 1991, 
            claimant's case was transferred to Amy Desenberg-Wines.  Ms. 
            Desenberg-Wines testified at the hearing.  She stated that 
            claimant was not found eligible for state vocational 
            rehabilitation services and she recommended to claimant that 
            she appeal this decision.  On September 23, 1991, Ms. 
            Desenberg-Wines telephoned claimant regarding her current 
            status and was informed that she was a full-time student and 
            did not need any vocational services at the present time.  
            The vocational consultant told claimant that in view of her 
            circumstances, her vocational file would be closed but she 
            was advised to contact her at any time if she encountered 
            any problems.  
                 Claimant testified that she did not complete the 
            program at Southwestern Community College and did not 
            contact either insurance carrier or the vocational 
            consultant regarding her status.  Claimant testified that 
            she had a child on January 26, 1992, and did not begin to 
            look for work until July 1992.  She submitted a list of 43 
            businesses in her geographic area where she applied for jobs 
            between July and September 1992.  However, she provided no 
            verification or corroboration of contact with the companies 
            listed (ex. 5).
                                CONCLUSIONS OF LAW
                 The first issue to be determined is whether claimant's 
            asthma is an occupational disease under Iowa Code section 
            85A or an injury under Iowa Code section 85.
                 Iowa Code section 85A.14 provides as followed:
                    No compensation shall be payable under this 
                 chapter for any condition of physical or mental 
                 ill-being, disability, disablement, or death for 
                 which compensation is recoverable on account of 
                 injury under the workers' compensation law.
                 Existence of section 85A.14 indicates a legislative 
            intent to preclude recovery under both chapter 85 and 
            chapter 85A for the same injury or condition.  Claimant 
            cannot be compensated for both an injury under chapter 85 
            and an occupational disease under chapter 85A for the same 
            work-related condition.
                 The supreme court of Iowa in Almquist v. Shenandoah 
            Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) 
            discussed the definition of personal injury in workers' 
            compensation cases as follows:
            Page   5
                 While a personal injury does not include an 
                 occupational disease under the Workmen's 
                 Compensation Act, yet an injury to the health may 
                 be a personal injury.  (Citations omitted.)  
                 Likewise a personal injury includes a disease 
                 resulting from an injury. ... The result of 
                 changes in the human body incident to the general 
                 processes of nature do not amount to a personal 
                 injury.  This must follow, even though such 
                 natural change may come about because the life has 
                 been devoted to labor and hard work.  Such result 
                 of those natural changes does not constitute a 
                 personal injury even though the same brings about 
                 impairment of health or the total or partial 
                 incapacity of the functions of the human body. 
                 A personal injury, contemplated by the Workmen's 
                 Compensation Law, obviously means an injury to the 
                 body, the impairment of health, or a disease, not 
                 excluded by the act, which comes about, not 
                 through the natural building up and tearing down 
                 of the human body, but because of a traumatic or 
                 other hurt or damage to the health or body of an 
                 employee.  (Citations omitted.)  The injury to the 
                 human body here contemplated must be something, 
                 whether an accident or not, that acts extraneously 
                 to the natural processes of nature, and thereby 
                 impairs the health, overcomes, injures, 
                 interrupts, or destroys some function of the body, 
                 or otherwise damages or injures a part or all of 
                 the body. (Emphasis added.)
            Chapter 85A defines occupational disease in section 85A.8 as 
                    Occupational diseases shall be only those 
                 diseases which arise out of and in the course of 
                 the employee's employment. Such diseases shall 
                 have a direct causal connection with the 
                 employment and must have followed as a natural 
                 incident thereto from injurious exposure 
                 occasioned by the nature of the employment.  Such 
                 disease must be incidental to the character of the 
                 business, occupation or process in which the 
                 employee was employed and not independent of the 
                 employment. Such disease need not have been 
                 foreseen or expected but after its contraction it 
                 must appear to have had its origin in a risk 
                 connected with the employment and to have resulted 
                 from that source as an incident and rational 
                 consequence.  A disease which follows from a 
                 hazard to which an employee has or would have been 
                 equally exposed outside of said occupation is not 
                 compensable as an occupational disease.
                 The medical evidence in this case clearly demonstrates 
            that claimant developed occupational asthma as a result of 
            Page   6
            exposure to cyanoacrylates while working as a switch builder 
            for employer.  Dr. Moseley and Dr. Makowsky concur that 
            methacholine challenge testing evidenced that claimant 
            suffers from asthma as a result of exposure to a compound 
            called Super Bond that has a cyanoacrylate in it.  
                 Therefore, it is concluded that claimant's asthma is an 
            occupational disease and not an injury and analysis of her 
            claim must be made under Iowa Code section 85A rather than 
            chapter 85.
                 Defendants do not deny that claimant's occupational 
            disease arose out of and in the course of her employment 
            with employer.  Defendants also concede that there is a 
            causal relationship between claimant's occupational disease 
            and temporary disability.  However, they dispute a causal 
            relationship between claimant's disease and any claimed 
            permanent disability.  
                 Dr. Moseley and Dr. Makowsky opine that it is likely 
            that claimant's occupational asthma will persist in that 
            re-exposure to the chemical compounds that initiate it will 
            likely trigger further respiratory problems.  Claimant's 
            medical history is consistent with any permanent problems 
            having their basis in her work exposure.  Given such, 
            claimant has established the requisite causal relationship 
            between her work injury and claimed permanent disability 
            with such claimed permanent disability found to be likely 
            continued problems with occupational asthma should claimant 
            be re-exposed to the chemical compounds that initiated the 
            disease or other respiratory irritants to which claimant is 
            now sensitized.  However, it is also conceivable that 
            claimant continues to aggravate her condition by smoking 
                 The next issue to be determined is the extent of 
            claimant's entitlement to permanent partial disability 
                 Since claimant has an impairment to the body as a 
            whole, an industrial disability has been sustained.  
            Industrial disability was defined in Diederich v. Tri-City 
            Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It 
            is therefore plain that the legislature intended the term 
            `disability' to mean `industrial disability' or loss of 
            earning capacity and not a mere `functional disability' to 
            be computed in the terms of percentages of the total 
            physical and mental ability of a normal man."
                 Functional impairment is an element to be considered in 
            determining industrial disability which is the reduction of 
            earning capacity, but consideration must also be given to 
            the injured employee's age, education, qualifications, 
            experience, motivation, loss of earnings, severity and situs 
            of the injury, work restrictions, inability to engage in 
            employment for which the employee is fitted and the 
            employer's offer of work or failure to so offer.  Olson v. 
            Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
            McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); 
            Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
            Page   7
                 Compensation for permanent partial disability shall 
            begin at the termination of the healing period.  
            Compensation shall be paid in relation to 500 weeks as the 
            disability bears to the body as a whole.  Section 85.34.
                 As noted, claimant has been given no impairment rating.  
            Her only limitation is that she should avoid re-exposure to 
            the chemicals which initially caused her problems and other 
            airway irritants which cause her problems.  These 
            restrictions do not appear to cause claimant significant 
            problems in daily living, although they may well impact on 
            the activities in which claimant could engage in an 
            industrial setting.  Claimant's industrial hygienist expert 
            specifically stated that claimant could not work in any 
            industrial setting where cyanoacrylates were used in the 
            process.  This includes manufacturing and assembling small 
            components such as switches.  Claimant, therefore, is 
            precluded from performing her prior work activity with 
                 Iowa Code section 85A.4 states:
                    Disablement as that term is used in this 
                 chapter is the event or condition where an 
                 employee becomes actually incapacitated from 
                 performing the employee's work or from earning 
                 equal wages in other suitable employment because 
                 of an occupational disease as defined in this 
                 chapter in the last occupation in which such 
                 employee is injuriously exposed to the hazards of 
                 such disease.
                 The term disability includes "industrial disability" or 
            loss of earning capacity and not merely physical or 
            functional disability.  Frit Industries v. Langenwalter, 443 
            N.W.2d 88 (Iowa App. 1989).
                 Claimant was born on July 11, 1964.  She was 26 years 
            old at the time of her occupational disease and currently 28 
            years old.  Because of her young age, her industrial 
            disability is less serious then it would be for an older 
            worker who is injured at the peak of her earnings career.  
            Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report 
            of the Industrial Commissioner 34 (Appeal Decision 1979); 
            Walton v. B & H Tank Corp., II Iowa Industrial Commissioner 
            Report 426 (1981); McCoy v. Donaldson Company, Inc., file 
            numbers 782670 & 805200 (App. Dec. 1989).
                 Claimant completed the twelfth grade of school and 
            training as a certified nurse's assistant.  On the Wide 
            Range Achievement Tests, she scored above the twelfth grade 
            level in reading and at the eleventh grade level in 
            arithmetic.  A vocational assessment conducted in May 1991 
            reflected that she has excellent communication skills; 
            skills in working with the public; management experience, 
            including supervising and training employees; experience 
            operating a cash register and handling money; knowledge 
            regarding operating procedures and policies in the fast food 
            Page   8
            industry; good eye/hand coordination and hand/finger 
            dexterity; a familiarity with medical terminology; a valid 
            driver's license; and experience in operating a calculator, 
            fax machine and copy machine (ex. A).  Fortunately, claimant 
            appears highly qualified for a variety of positions outside 
            of an industrial setting.  
                 Claimant has not been employed since October 1990.  She 
            has not participated in vocational retraining and has not 
            completed a computer program course.  Her motivation to be 
            retrained or re-enter the job market is questionable.  
            Claimant made no serious efforts in this regard until three 
            months prior to the hearing.  She indicated a concern about 
            losing her medical benefits under the AFDC program and made 
            no concerted effort to obtain employment during her 
            pregnancy from April 1991 through January 1992.  Since 
            claimant has not made a serious effort to be employed, there 
            is a paucity of evidence to determine what claimant can and 
            cannot do within the boundaries of her restrictions and 
            disability.  Schofield v. Iowa Beef Processors, Inc., II 
            Iowa Industrial Commissioner Report 334, 336 (1981). 
                 An employee making a claim for industrial disability 
            will benefit from a serious attempt to find work in the 
            competitive employment market.  It appears that claimant's 
            job search three months prior to hearing were preparatory to 
            litigation rather than an aggressive pursuit and interest to 
            re-enter the job market.  Employers are responsible in the 
            reduction in earning capacity caused by the injury.  They 
            are not responsible for a reduction in actual earnings 
            because the employee resists returning to work.  Williams v. 
            Firestone Tire and Rubber Co., III Iowa Industrial 
            Commissioner Report 279 (1982).
                 As previously noted, claimant earned $5.83 per hour in 
            October 1990.  Jobs identified by vocational consultants 
            ranged in salary from entry level minimum wage to $5 an 
            hour.  Thus, loss of earning capacity is minimal.
                 Based upon the foregoing factors, all of the factors 
            used to determine industrial disability and employing agency 
            expertise, it is determined that claimant has sustained a 25 
            percent industrial disability.  Claimant is entitled to 125 
            weeks of permanent partial disability benefits at the rate 
            of $147.36 per week commencing February 12, 1991.
                 THEREFORE, IT IS ORDERED:
                 Defendants pay to claimant one hundred twenty-five 
            (125) weeks of permanent partial disability benefits at the 
            rate of one hundred forty-seven and 36/100 dollars ($147.36) 
            per week commencing February 12, 1991.
                 That defendants receive credit for any benefits 
            previously paid.
                 That defendants pay accrued amounts in a lump sum.
            Page   9
                 That defendants pay interest pursuant to Iowa Code 
            section 85.30.
                 That defendant pay the costs of this action pursuant to 
            rule 343 IAC 4.33.
                 That defendant file claim activity reports as required 
            by the agency pursuant to rule 343 IAC 3.1.
                 Signed and filed this ____ day of October, 1992.
                                          JEAN M. INGRASSIA
                                          DEPUTY INDUSTRIAL COMMISSIONER    
            Copies to:
            Mr. Steven C. Jayne
            Attorney at Law
            5835 Grand Ave.
            Des Moines, Iowa  50312
            Mr. Helmut Mueller
            Attorney at Law
            RR 5
            Osceola, Iowa  50213
            Mr. Joseph S. Cortese, II
            Attorney at Law
            500 Liberty Bldg
            Des Moines, Iowa  50309
                                                2203 1803
                                                Filed October 9, 1992
                                                Jean M. Ingrassia
            MICHELE LUEHRING,   
                                                 File No. 981389
                                             A R B I T R A T I O N
                                                 D E C I S I O N
                 Insurance Carrier,  
            Claimant's asthma found to be an occupational disease under 
            Iowa Code section chapter 85A rather than an injury 
            compensated under Iowa Code section chapter 85.
            Twenty-six-year-old claimant with no impairment rating, 
            precluded from performing her past work activity as a switch 
            builder, whose only restriction is to avoid exposure to 
            cyanoacrylates which are used in many industrial processes, 
            was awarded 25 percent permanent partial disability.
            Page   1
                     before the iowa industrial commissioner
            GERRY L. BAILEY,              :
                 Claimant,                :         File Nos. 872775
                                          :                   872776
            vs.                           :                   872778
                                          :                   936530
            AALFS MANUFACTURING COMPANY,  :                   981393
                 Employer,                :      A R B I T R A T I O N
            and                           :         D E C I S I O N
            THE HARTFORD and AETNA        :
            CASUALTY & SURETY COMPANY,    :
                 Insurance Carriers,      :
                 Defendants.              :
                              statement of the case
                 These matters were consolidated by an order filed June 
            5, 1990.  File number 872775 is a proceeding in arbitration 
            upon claimant's petition filed May 9, 1988.  Gerry L. Bailey 
            contends she suffered a work injury through cumulative 
            trauma to the left arm on October 24, 1987, and seeks 
            benefits under the Iowa Workers' Compensation Act from 
            employer Aalfs Manufacturing Company and its then insurer, 
            The Hartford Insurance Company.  File number 872776 is also 
            a proceeding in arbitration alleging a cumulative injury to 
            the left arm of February 19, 1988.  File number 872778 is 
            similarly a petition in arbitration alleging a cumulative 
            injury to the right arm of April 4, 1988 and seeking 
            benefits from Aalfs and its then insurer, Aetna Casualty & 
            Surety Company.  File number 936530 is upon an arbitration 
            petition filed April 13, 1990 and alleges cumulative 
            injuries to the right arm, shoulder and neck on March 27, 
            1989.  This petition also seeks benefits from Aalfs and 
                 These matters came on for hearing in Sioux City, Iowa, 
            on September 11, 1990.  The record consists of joint 
            exhibits 1 through 46 and 48 through 87, claimant's exhibit 
            88 and the testimony of the following witnesses:  claimant, 
            James Bailey, Adelle Mack, Leila Mathesen and Melanie 
                 It is stipulated by all parties that Hartford provided 
            insurance coverage for Aalfs Manufacturing from March 31, 
            1987 through March 30, 1988 and that Aetna Casualty & Surety 
            provided insurance coverage commencing March 31, 1988.
                 In file number 872775, the parties have stipulated that 
            Page   2
            all requested medical benefits under Iowa Code section 85.27 
            have been or will be paid by defendants.  Issues presented 
            for resolution include:
                 1.  Whether an employment relationship existed between 
            claimant and Aalfs Manufacturing Company on October 24, 
                 2.  Whether claimant on that date sustained an injury 
            arising out of and in the course of that employment;
                 3.  Whether there exists a causal relationship between 
            the claimed injury and temporary or permanent disability;
                 4.  The nature and extent of claimant's disability, if 
                 5.  The rate of compensation;
                 6.  Whether claimant is entitled to penalty benefits 
            under Iowa Code section 86.13; and, 
                 7.  Whether defendants should pay the costs of a 
            medical examination by Dr. Luse under Iowa Code section 
                 In file number 872776, the parties have stipulated that 
            an employment relationship existed between claimant and 
            Aalfs on February 19, 1988, that claimant sustained an 
            injury arising out of and in the course of her employment on 
            that date, that the injury caused temporary disability as 
            set forth in joint exhibit 28, that the injury caused a 
            scheduled member disability equivalent to two percent of the 
            left arm with a commencement date for benefits of October 9, 
            1988 (paid by defendants on September 5, 1990), that all 
            requested medical benefits have been or will be paid by 
            defendants, and that defendants paid healing period or 
            temporary disability benefits as per claimant's entitlement.
                 Issues presented for resolution include:
                 1.  The rate of weekly compensation; and,
                 2.  Whether claimant is entitled to penalty benefits.
                 In file numbers 872778 and 936530, the parties have 
            stipulated that an employment relationship existed at all 
            times relevant and that certain benefits were voluntarily 
            paid prior to hearing.
                 Issues presented for resolution include:
                 1.  Whether claimant sustained injuries on April 7, 
            1988 and/or March 27, 1989, arising out of and in the course 
            of her employment with Aalfs Manufacturing Company;
                 2.  Whether there exists a causal relationship between 
            either injury and any resulting temporary or permanent 
            Page   3
                 3.  The nature and extent of claimant's disability, if 
                 4.  The rate of weekly compensation with respect to 
            each asserted injury; and,
                 5.  Whether claimant is entitled to medical benefits 
            under Iowa Code section 85.27.
                                 findings of fact
                 The undersigned deputy industrial commissioner, having 
            heard the testimony and considered all of the evidence, 
                 Gerry L. Bailey, 40 years of age at hearing, is a 
            right-handed 1968 high school graduate, but was not a good 
            student.  Thereafter, she worked for approximately two years 
            in a factory assembly job, leaving that work when she became 
            pregnant.  In approximately 1978, claimant undertook 
            training (beauty school followed by an apprenticeship) to be 
            a cosmetologist, eventually obtaining a license in another 
            state.  However, although she worked briefly for two beauty 
            parlors, she opted not to pursue that career on a full-time 
            basis, remaining home to care for her children until 
            September, 1986.
                 At that time, she took a position hanging wallpaper for 
            a construction company, remaining so employed until January, 
            1987, when she was laid off for the season.
                 Claimant began work with Aalfs Manufacturing Company, a 
            manufacturer of blue jeans, on May 12, 1987.  She held 
            positions in assembly (sewing) and repair until quitting the 
            work on June 8, 1989.  In a decision dated June 26, 1989, 
            Job Service of Iowa found that she had left that work upon 
            the advice of a physician due to medical problems arising 
            out of and in connection with the work.  No disqualification 
            for job insurance benefits was imposed.  Claimant received 
            job insurance benefits for several months, certifying for 
            each week that she was "able and available" for work.  On 
            cross-examination, she conceded that these certifications 
            were untrue, thus establishing that claimant is willing to 
            lie in her pursuit of benefits from a sister agency.  This 
            seriously affects her credibility as a witness.
                 Claimant has not worked since leaving Aalfs, except for 
            some insignificant clerical work for a contract labor 
            business known as Manpower.  Other than that, she has not 
            sought employment since she discontinued receiving 
            unemployment insurance benefits, apparently in September, 
                 Educationally, claimant also completed a six-week adult 
            education course in microsoft systems in 1988, and part of 
            (but not finishing) a word processing course in 1989.
                 Prior to commencing employment with Aalfs, claimant 
            underwent female surgery and suffered from ulcers, but was 
            entirely recovered.  She suffered falls at age 12, in 1978 
            Page   4
            and again in 1986.  She struck her head on the first two 
            occasions, but without permanent damage.  In 1986, she 
            sustained injury to the left shoulder and neck, but claims 
            to have completely recovered.  While working for Thompson's 
            Construction in 1986, claimant suffered swelling of the 
            hands diagnosed as tendonitis.
                 During 1987 and 1988 (the record is silent as to 1989), 
            claimant was married and resided with her husband (James 
            Bailey) and her 13-year-old daughter.  In addition, her 
            married 17-year-old daughter lived with the family, along 
            with a 17-year-old husband and one child, claimant's 
                 On October 24, 1987, when claimant first reported 
            injury, she was employed in a position described as cord 
            left/fly.  This sewing job required reaching to the left 
            side and behind for material, which stressed the left arm 
            and shoulder.  Claimant reported symptoms of weakness and 
            pain in the left wrist and forearm (and also knee).  She was 
            referred to Richard L. Budensiek, D.O., who diagnosed carpal 
            tunnel syndrome of the left wrist and medial collateral 
            ligament strain of the knee, checked on a form as related to 
            work.  On October 30, Dr. Budensiek apparently also 
            diagnosed strain to the right knee related to work.  
            Claimant was treated with splints for her hand and at least 
            one knee and advised to slow down her pace to 70 percent 
            (she worked an incentive job in which her production level 
            was recorded).  Claimant missed no work at this time and 
            testified that arm symptoms resolved.
                 By February 19, 1988, when claimant reported a second 
            injury, symptoms had recurred.  In addition to complaints of 
            numbness in the thumb, soreness in the wrist and knotted 
            muscles in the forearm, claimant testified to shoulder and 
            neck complaints along with headaches.  She was again 
            referred to Dr. Budensiek.  His findings of February 19 
            include positive Phalen's and Tinel's signs in the left 
            wrist and tenderness in the cervical spine on the left.  
            Diagnosis was of carpal tunnel syndrome and possible 
            cervical radiculopathy, seen as work related.  Claimant 
            missed work as set forth in joint exhibit 28, and her 
            entitlement to healing period or temporary total disability 
            with respect to this injury is not in dispute.  Radiographic 
            examination of the cervical spine on February 22 by M. 
            Sandler, M.D., showed marked reversal of the normal lordosis 
            as a result of either muscle spasm or simply the viewing 
            position, but no evidence of fracture, dislocation, 
            arthritis or other abnormality was seen.  On February 19, 22 
            and 26 and March and 4, Dr. Budensiek restricted use of 
            claimant's left hand and arm.  Dr. Budensiek's diagnoses 
            varied from cervical and thoracic myositis to cervical 
            radiculopathy and carpal tunnel syndrome and tendonitis of 
            the wrist.  In each case, he opined on printed forms that 
            the injury was work related.  By April 4, Steven F. Gordon, 
            M.D., (of the same office, Morningside Family Practice, 
            P.C.) diagnosed carpal tunnel syndrome only, but both hands 
            were splinted.  Dr. Budensiek's report of April 7 included a 
            diagnosed strain to the medial collateral ligament of the 
            right knee, but on April 15, John N. Redwine, D.O., (of the 
            Page   5
            same office) diagnosed thoracic myositis, carpal tunnel 
            syndrome of the left wrist and spasm of the trapezius, all 
            cited as work related.  By April 20, claimant was taken off 
            work for two weeks by Dr. Budensiek, but the diagnosis was 
            limited to carpal tunnel syndrome.
                 Chart notes from Morningside Family Practice, P.C., 
            dated February 19, 1988 reflect that claimant presented with 
            recurrence of left arm pain.  Phalen's and Tinel's signs 
            were positive on the left.  Claimant showed tenderness over 
            the paravertebral musculature of the cervical spine, 
            especially on the left.  A standard calendar shows that 
            February 19, 1988 fell on a Friday.  Claimant was to return 
            to the office on Monday for a possible return to work on 
            Tuesday, which implies that claimant was off work on Monday, 
            February 22.  Chart notes of that date prepared by Dr. 
            Redwine reflect that Tinel's and Phalen's were now negative, 
            although he assessed overuse syndrome of the left arm with 
            possible carpal tunnel syndrome.  Claimant was released to 
            light duty for the next week, starting February 23.  On 
            February 26, a Friday, range of motion of the neck was 
            normal, but Dr. Budensiek reported tenderness around the 
            rhomboid and trapezius bilaterally, leading to his 
            assessment of trapezius and rhomboid myositis.  Claimant was 
            to return on the following Tuesday (March 1) for possible 
            return to work the following day.  Attendance records show 
            notation "10" for February 29; the key shows this refers to 
            "work injury/illness."  Dr. Budensiek continued claimant off 
            work as of March 1 based on an assessment of cervical and 
            thoracic myositis and carpal tunnel syndrome.  Accordingly, 
            it is noted that claimant first lost work upon a doctor's 
            advice due to symptoms extending beyond the left arm on 
            February 29, 1988, while Aalfs was insured by Hartford.
                 Claimant was seen at Morningside Family Practice on 
            several more occasions before undergoing a carpal tunnel 
            release on May 2, 1988.  Dr. Budensiek notes cervical 
            radiculopathy and CTS (carpal tunnel syndrome) on March 21, 
            carpal tunnel syndrome and medial collateral ligament strain 
            to the right knee on April 7 (range of motion of the neck 
            was then normal) and thoracic myositis, trapezius muscle 
            spasm and carpal tunnel syndrome on April 15.  On that date, 
            claimant reported pain in the neck radiating to the scalp, 
            and pain in the shoulder and arm.
                 Claimant was referred by Dr. Budensiek for surgery to 
            John J. Dougherty, M.D.  Surgery was performed on May 2, 
            1988.  Dr. Dougherty considered claimant's recuperation to 
            be a difficult problem, indicating that her symptoms far 
            outweighed objective signs.  In fact, on June 16, he 
            expressed distrust of claimant's honesty ("I think she is 
            basically doing better than she leads me to believe.").  On 
            September 13, 1988, Dr. Dougherty wrote that EMG showed no 
            evidence of cervical radiculopathy and noted that he had 
            released claimant to return to work on August 1.  He also 
            noted that claimant had not had complaints of the right 
            wrist.  On the left side, he believed her to have sustained 
            approximately a two percent permanent impairment of the arm.  
            This letter was mailed to Aetna, although Hartford was the 
            carrier liable on the claim (872776).  No permanent 
            Page   6
            restrictions were imposed.
                 Although Dr. Dougherty later indicated that claimant 
            made no complaints of right-sided upper extremity symptoms, 
            his chart notes of April 28, 1988 reflect such complaints, 
            and particularly that, if she were to be off work for the 
            left hand, the right hand might also improve.
                 Claimant went through a work hardening program and 
            eventually returned to full productivity.  However, in 
            February, 1989, her left hand became swollen and pain 
            developed in the forearm, upper arm, shoulder and neck.  In 
            addition, claimant's right hand began periodically going 
            numb.  Claimant returned to Morningside Family Practice on 
            February 17 and was seen by Dr. Gordon.  His notes reflect 
            complaints of pain in the left elbow, wrist and shoulder.  
            Assessment was of left lateral epicondylitis and left biceps 
            tendonitis.  No complaints of right arm symptoms were noted.  
            The same was true on February 28 and March 7.  On March 15, 
            complaints were of pain in the left arm, forearm and left 
            trapezius.  Assessment was of overuse syndrome with myositis 
            and epicondylitis on the left side.  Again, there were no 
            complaints of right-sided symptomatology.  On March 28, 1989 
            (one day after the injury alleged in 936530), pain was 
            described as continuing unabated through the entire left 
            upper extremity.  Dr. Gordon noted that there was "no spot 
            throughout the entire left upper extremity which is not 
            tender."  Assessment was of left upper extremity pain; 
            unknown etiology.  Differential diagnosis:  "Includes 
            functional problem as well as reflex sympathetic dystrophy." 
            Claimant was restricted from work with the left arm.
                 On May 8, Dr. Gordon described "functional pain versus 
            musculoskeletal pain" and suggested that claimant's 
            sociological problems might be impinging on her work.  On 
            May 16, claimant was released to return part-time, up to 
            three hours per day.  After that, claimant was restricted 
            from work with the left hand.  On workers' compensation 
            forms dated February 22 and March 29, Dr. Gordon indicated 
            his belief that left arm symptoms, etiology known or 
            unknown, were causally related to work.
                 Claimant was next seen by Kevin Liudahl, M.D., 
            apparently on Dr. Gordon's referral.  On April 24, 1989, 
            chart notes reflect that claimant gave history of gradual 
            insidious recurrence of left upper extremity complaints.  
            Pain was reported in the posterior aspect of the shoulder, 
            posterior humerus, posterior elbow and radial forearm down 
            into the wrist.  Claimant described the pain as different 
            from that she had previously experienced.  Claimant further 
            complained of posterior neck and shoulder complaints 
            bilaterally, worse on the left.  These were described as 
            mostly related to kneeling forward over bench activities at 
            work, and were markedly relieved with claimant off work the 
            past six weeks.  Physical examination revealed diffuse 
            posterior bilateral paracervical spinous muscle tenderness, 
            but good range of motion in the cervical spine.  Claimant 
            had moderate tenderness over the trapezius muscles 
            bilaterally, worse on the left.  Impression was of trapezius 
            syndrome, left shoulder and pillar syndrome, left hand 
            Page   7
            status post-carpal tunnel release.  "Probably with 
            considerable amount of functional overlay."  Claimant was 
            released on a return as needed basis, as Dr. Liudahl had no 
            further therapy to add.
                 Claimant returned to Dr. Liudahl on May 30 with the 
            same complaints.  Significant stiffness in the neck was 
            found on examination, although range of motion was full.  
            Claimant had significant tightness and tenderness of the 
            shoulder elevator muscles, although with full range of 
            motion.  Probable diagnosis was of polymyalgia rheumatica.  
            Claimant was seen again on June 6, with complaints, 
            examination and diagnosis unchanged.  Dr. Liudahl noted that 
            polymyalgia rheumatica is ordinarily treated with a 
            long-term dose of oral steroids, and that patients normally 
            respond quite well to the medication.  He anticipated that 
            claimant would be able to return to her line of work within 
            the next month.  Chart notes further indicate:  "The exact 
            etiology of these conditions is difficult to determine.  I 
            believe that in this particular case it is very closely in 
            time and duration related to activities, thus it must be 
            considered related to her work."
                 Dr. Liudahl has not provided an impairment rating or 
            imposed permanent restrictions, presumably because he 
            anticipated full recovery.
                 Claimant was also seen by her family physician, David 
            J. Hoelting, M.D.  She did not seek or receive authorization 
            for this care, which includes a physical therapy bill in the 
            amount of $30.00 for which reimbursement is now sought.  On 
            June 7, 1989, Dr. Hoelting recommended that because of 
            continued problems with the neck and shoulder, claimant 
            should seek different work.
                 Claimant was also seen by Robert A. Durnin, M.D., a 
            physical medicine specialist.  On March 14, 1988, Dr. Durnin 
            wrote that claimant complained of left-sided neck pain 
            referring as far as the trapezius and shoulder tip for the 
            past three weeks and of pain radiating down the right upper 
            extremity to the wrist or palm.  His probable diagnosis was 
            of cervical disc degeneration, probably at C4-5, probable 
            early lumbar disc degeneration, carpal tunnel syndrome on 
            the left and depression.  On the same date, he filled out a 
            form indicating the injury (carpal tunnel syndrome and 
            cervical disc) was work related.  However, on March 22, Dr. 
            Durnin wrote that claimant's neck discomfort and pain down 
            the arm had resolved following traction.
                 Claimant was also seen for evaluation by Pat Luse, 
            D.C., in June 1990.  Dr. Luse diagnosed chronic cervical 
            sprain, right wrist tendonitis, suspected right carpal 
            tunnel syndrome and status post-left carpal tunnel syndrome 
            surgery.  He found the cervical spine not subject to an 
            impairment rating (presumably because he found full range of 
            motion), a 2 percent impairment to the left upper extremity 
            (the same as Dr. Dougherty) and a 14 percent impairment to 
            the right upper extremity, although he believed this should 
            be confirmed by EMG.  As to causal nexus, Dr. Luse wrote:
            Page   8
                 It is my opinion, based on the available 
                 information, that Gerry Bailey did receive an 
                 injury as the result of her work injuries.  The 
                 subjective complaints were consistent with the 
                 objective findings.
                 Dr. Luse suggested restrictions against repetitive 
            motion work with either upper extremity.
                 Electromyography was done by Joel T. Cotton, M.D., on 
            August 31, 1990.  His impression was of mild to moderate 
            right distal median neuropathy as seen clinically in mild to 
            moderate right carpal tunnel syndrome.
                                conclusions of law
                 All of claimant's alleged injuries are repetitive 
            motion or cumulative type injuries.  The pleadings are 
            greatly in disarray in terms of what injuries claimant 
            sustained on which dates and what relief is sought from 
            which insurance carrier.  With respect to cumulative 
            injuries, Iowa has adopted the rule that such injuries occur 
            for workers' compensation purposes at such time as the 
            employee can no longer work because of pain or physical 
            inability.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 
            368 (Iowa 1985).
                 Consider then claimant's complaints in terms of when 
            she was no longer able to work.  Cases number 872775 and 
            872776 seek relief based on claimed impairment to the left 
            arm.  Defendants deny that an employment relationship 
            existed between claimant and Aalfs on October 24, 1987, but 
            claimant has met her burden of proof on this issue in that 
            her uncontradicted testimony establishes that the employment 
            relationship (which is admitted in the other three cases) 
            commenced on May 12, 1987.  However, although claimant 
            complained of left arm symptoms to Dr. Budensiek on that 
            date, she was not taken off work and no restrictions were 
            imposed.  Claimant has failed to establish a compensable 
            work injury of October 24, 1987.
                 However, claimant did complain further of left-sided 
            arm pain along with cervical complaints on February 19, 
            1988, and was at that time taken off work.  In case number 
            872776, claimant, Aalfs and Hartford have stipulated that an 
            injury arising out of and in the course of employment was 
            sustained and caused permanent and temporary disability, the 
            extent of each being stipulated.  On the basis of the 
            prehearing report entered into by the parties, the only 
            issues remaining include the rate of compensation and 
            entitlement to penalty benefits.  It was agreed that 
            claimant has been compensated for her temporary disability 
            as set forth in exhibit 28 and that her permanent disability 
            is two percent of the arm, which is consistent with the 
            opinions of Drs. Dougherty and Luse.
                 The dispute as to the rate of compensation relates to 
            whether or not claimant is entitled to claim her married 
            child, son-in-law or grandson as exemptions.  The proper 
            rate of compensation is generally 80 percent of the 
            Page   9
            employee's "average weekly spendable earnings."  Iowa Code 
            section 85.37.  Spendable weekly earnings are gross weekly 
            earnings less payroll taxes.  Iowa Code section 85.61(11).  
            Iowa Code section 85.61(10) defines "payroll taxes" as an 
            amount, determined by tables adopted by the commissioner, 
            equivalent to the amount which would be withheld pursuant to 
            withholding tables of the Internal Revenue Code as though 
            the employee had elected to claim the maximum number of 
            exemptions to which entitled.  Therefore, claimant's 
            entitlement to the exemptions in dispute depends upon 
            interpretations of the Internal Revenue Code of 1954.  This 
            writer does not now and has never claimed to be a competent 
            tax attorney.  Claimant did not choose to introduce evidence 
            of federal law in this respect, nor has she requested that 
            official notice be taken of any federal statute, rule or 
            case.  If claimant has not actually waived this rather 
            unusual claim by her failure to do so, she has at least 
            failed to meet her burden of proof on the issue.  Her rate 
            in these cases where at issue shall be determined on the 
            basis of entitlement to three exemptions (claimant, her 
            husband and 13-year-old child).  In case number 872776, the 
            parties stipulated to gross weekly earnings of $191.41 and a 
            marital status of married.  The Guide to Iowa Workers' 
            Compensation Claim Handling effective July 1, 1987 shows 
            that an individual so situated is entitled to a rate of 
            $134.12.  Defendants made certain payments at the rate of 
            $137.40 (based, incorrectly, on four exemptions) pursuant to 
            claimant's stipulated entitlement.
                 However, this does not end inquiry with respect to case 
            number 872776.  Claimant also makes complaint of cervical, 
            shoulder and right arm problems.  Dr. Budensiek's notes of 
            February 19, 1988 reflect that claimant was taken off work 
            at that time in part due to what he at that time assessed as 
            possible cervical radiculopathy.  Under McKeever Custom 
            Cabinets, if claimant has established entitlement to 
            benefits based upon her cervical problems, the injury date 
            is February 19, 1988.
                 However, this presents procedural complications.  The 
            Hartford was the insurance carrier at risk on February 19, 
            1988.  Both of the petitions seeking relief against Aalfs 
            and The Hartford allege only impairment to the left arm.  In 
            fact, claimant entered into a stipulation to the effect that 
            her entitlement to permanent impairment is one of two 
            percent of that arm.  In an action of questionable 
            propriety, claimant then filed a post-hearing brief 
            professing disinterest as to how industrial disability 
            should be apportioned between insurance carriers and invited 
            this agency to disregard her stipulation and pleadings.  
            Nonetheless, it is held that defendant Hartford will not be 
            prejudiced by considering the issues, since all cases have 
            been consolidated for hearing, because limitations seems not 
            to be a potential issue (the petition was filed within three 
            years of the last date of weekly payments, shown on a form 
            2A contained in the administrative file to have commenced on 
            April 27, 1988, that filing being hereby officially noticed 
            under Iowa Code section 17A.14(4) without affording the 
            parties an opportunity to contest the fact because fairness 
            does not require that opportunity) and because the relevant 
            Page  10
            medical reports and chart notes have long been available to 
            Aalfs and Hartford, so surprise cannot legitimately be 
            claimed.  However, this holding is not intended as precedent 
            for not holding parties to their pre-trial stipulations.  
            The agency has previously held that stipulations may be 
            disregarded if the record shows facts to be otherwise.  De 
            Heer v. Clarklift of Des Moines, file number 804325 (App. 
            Decn., May 12, 1989).
                 That said, this writer finds himself unconvinced that 
            claimant has established that permanent cervical problems, 
            if any, are causally related to her employment.  It will be 
            recalled that claimant sustained neck and left shoulder 
            problems in 1986, well before her employment with Aalfs 
            began.  It has been determined that she is not a credible 
            witness.  Drs. Liudahl, Dougherty and Gordon have all 
            commented upon the fact that claimant's reported symptoms 
            far outweigh objective signs, using expressions such as 
            "functional" or "functional overlay," which medical 
            practitioners commonly employ to refer to symptomatology 
            that cannot be explained by objective examination or that is 
            due to unrelated causes such as psychological factors or 
            even considerations of secondary gain.  It is unclear what 
            the physical nature of claimant's cervical complaints is.  
            Various physicians have offered diagnoses ranging from 
            cervical sprain to cervical radiculopathy to polymyalgia 
            rheumatica.  Dr. Luse expresses an opinion as to causal 
            nexus, but that opinion is so vague as to be largely without 
            meaning, especially as to cervical sprain (which he finds 
            unratable in terms of impairment).  Dr. Durnin checked a 
            form to indicate that cervical problems keeping claimant off 
            work were related to the work, but this does not address the 
            issue of permanent disability, as opposed to a temporary 
            aggravation of an admittedly preexisting problem.  It is, of 
            course, claimant's burden of establishing by a preponderance 
            of the evidence that her cervical disability is causally 
            related to the injury on which she bases her claim.  Burt v. 
            John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 
            732 (1955).  That question is essentially within the domain 
            of expert testimony, Bradshaw v. Iowa Methodist Hosp., 251 
            Iowa 375, 101 N.W.2d 167 (1960), although that evidence must 
            be considered with all other evidence in the record bearing 
            on the issue.  Burt.
                 Given the totality of the record on this issue, it is 
            held that claimant has failed to establish by a 
            preponderance of the evidence that her cervical complaints 
            constitute a permanent disability causally related to her 
            work with Aalfs in general or the injury of February 19, 
            1988 in specific.  These comments apply also to claim number 
            936530, in which relief is sought based on right arm, 
            shoulder and neck complaints based on an alleged injury date 
            of March 27, 1989.
                 Claimant also alleges (872778) that she sustained an 
            injury to the right arm on April 4, 1988.  It is her burden 
            to establish that this injury arose out of and in the course 
            of her employment.  McDowell v. Town of Clarksville, 241 
            N.W.2d 904 (Iowa 1976).  The record as to this injury is 
            fairly sparse.  However, it does not appear that claimant 
            Page  11
            ever missed work due to right arm symptoms until she 
            actually quit her job upon the recommendation of Dr. 
            Hoelting.  Thus, if there is a compensable injury to the 
            right arm, it occurred on June 8, 1989.
                 Claimant's complaints of right-sided symptomatology are 
            of long standing, dating back to Dr. Dougherty on April 28, 
            1988.  Only one physician has expressed an opinion as to 
            whether those symptoms are causally related to the work, 
            that being Dr. Luse.  Although his opinion as to causation 
            is lacking in clarity, it should be considered in the 
            context of rating the right arm.  This seems also a 
            cumulative injury, and it has not been shown to preexist 
            claimant's employment with Aalfs.  Dr. Luse's impression was 
            also confirmed by the EMG performed by Dr. Cotton.  It is 
            therefore held that claimant has met her burden in proving 
            an injury to the right arm arising out of and in the course 
            of employment, causally related to her permanent impairment.  
            Claimant has sustained a 14 percent impairment to the right 
            upper extremity, an entitlement equivalent to 35 weeks.  
            There is no showing of entitlement to healing period 
            benefits.  The parties stipulated to a rate of $134.33 with 
            respect to the alleged injury of March 27, 1989, the closest 
            alleged injury in point of time and the best evidence in the 
            record as to the appropriate rate of compensation.
                 THEREFORE, IT IS ORDERED:
                 In file number 872775, claimant shall take nothing.
                 In file number 872776, claimant has been paid benefits 
            in excess of her entitlement and shall take nothing further.
                 In file number 872778, claimant shall take nothing.
                 In file number 936530, claimant shall take nothing.
                 In file number 981393:
                 This division shall establish a separate file number 
            and litigated file (claim number 981393) pertaining to 
            claimant's right arm injury of June 8, 1989.  Defendants 
            Aalfs Manufacturing and Aetna shall file a first report of 
            injury as to that file within thirty (30) days of the filing 
                 Those defendants shall also pay unto claimant 
            thirty-five (35) weeks of permanent partial disability at 
            the stipulated rate of one hundred thirty-four and 33/100 
            dollars ($134.33) per week commencing June 8, 1989 and 
            totalling four thousand seven hundred one and 55/100 dollars 
                 All accrued weekly benefits shall be paid in a lump sum 
            together with statutory interest thereon pursuant to Iowa 
            Code section 85.30.
                 Defendants Aalfs Manufacturing and Aetna shall file 
            Page  12
            claim activity reports as requested by this agency pursuant 
            to rule 343 IAC 3.1.
                 With respect to each contested case considered herein:
                 Each party shall be responsible for its own costs 
            pursuant to rule 343 IAC 4.33.
                 Defendants Hartford and Aetna shall each be responsible 
            for fifty percent (50%) of Dr. Luse's evaluation fee under 
            Iowa Code section 85.39.
                 Signed and filed this ______ day of ____________, 1991.
                                          DAVID RASEY
                                          DEPUTY INDUSTRIAL COMMISSIONER
            Copies To:
            Mr. Harry H. Smith
            Attorney at Law
            P.O. Box 1194
            Sioux City, Iowa  51102
            Ms. Judith Ann Higgs
            Attorney at Law
            200 Home Federal Building
            P.O. Box 3086
            Sioux City, Iowa  51102
            Mr. James M. Cosgrove
            Mr. James P. Comstock
            Attorneys at Law
            1109 Badgerow Building
            P.O. Box 1828
            Sioux City, Iowa  51102
                                               Filed April 27, 1993
                                               Bernard J. O'Malley
            JEFFREY W. BLANCHARD,         :
                                          :      File No. 981470
                 Claimant,                :
            vs.                           :       MEMORANDOM OF
            ROY'S AUTO SERVICE,           :        DECISION ON
                 Employer,                :         ALTERNATE
            and                           :        MEDICAL CARE
            UNION INSURANCE COMPANY,      :
                 Insurance Carrier,       :
                 Defendants.              :
            Deputy authorized claimant to have back surgery to be paid 
            for by defendants.
         Page   1
         JEFFREY W. BLANCHARD,         :
                                       :      File No. 981470
              Claimant,                :
         vs.                           :       MEMORANDOM OF
         ROY'S AUTO SERVICE,           :        DECISION ON
              Employer,                :         ALTERNATE
         and                           :        MEDICAL CARE
              Insurance Carrier,       :
              Defendants.              :
              An original notice and petition was filed on April 16, 1993 
         under rule 343 IAC 4.48.  April 28, 1993 was the date set for a 
         telephonic hearing.  By agreement due to conflict, the parties 
         agreed to have this heard at 10:00 a.m. April 27, 1993.  All 
         parties were given proper notice.
              This alternate medical care petition was filed because of 
         the claimant's dispute with medical care he was being given which 
         arose out of a work injury on March 18, 1991.  The entire hearing 
         was recorded via an audio tape.  The detailed decision was 
         dictated into the record on the day of the hearing and will not 
         be reproduced in typewritten form unless there is an appeal by 
         the parties at which time the procedures under the administrative 
         code are to be followed.  Any rights of appeal will run from the 
         date of the decision dictated into the record, namely, April 27, 
         1993, and this memorandum is solely for the purpose of the agency 
         file.  Final agency action was delegated to the undersigned and 
         any appeal would be per 17A.19.
              The deputy ordered that claimant's petition for alternate 
         medical care is approved.  The decision was rendered on April 27, 
         1993.  Claimant is authorized to have back surgery paid for by 
              Signed and filed this ____ day of April, 1993.
                                       BERNARD J. O'MALLEY
                                       DEPUTY INDUSTRIAL COMMISSIONER
         Page   2
         Copies to:
         Mr Joseph S Cortese II
         Attorney at Law
         500 Liberty Bldg
         Des Moines IA 50309
         Mr Robert S Kinsey III
         Attorney at Law
         480 6th St
         P O Box 209
         Waukee IA 50263
            Page   1
                     before the iowa industrial commissioner
            DEBORAH BUCK LOVELADY,        :
                                          :       File No. 981523
                 Claimant,                :
                                          :      A L T E R N A T E
            vs.                           :
                                          :           C A R E
            MERCY HOSPITAL,               :
                                          :       D E C I S I O N
                 Employer,                :
            and                           :
            RELIANCE,                     :
                 Insurance carrier,       :
                 Defendants.              :
                 This is a proceeding before the Iowa Industrial 
            Commissioner upon a petition for alternate medical care 
            pursuant to Iowa Code section 85.27 filed on December 15, 
            1992 by claimant, Deborah Buck Lovelady, against Mercy 
            Hospital, employer, invoking summary procedures set forth in 
            rule 343 IAC 4.48.
                 A telephone conference hearing commenced on December 
            28, 1992 at 8:30 a.m.  The hearing was recorded by audio 
            tape.  Claimant participated personally with her attorney 
            Jacob Peters.  Defendants appeared through their attorney 
            Mel Hanson and a representative of the adjusting firm 
            Sedgwick James.
                 At hearing the caption was amended to reflect Reliance 
            as the appropriate insurance carrier in this matter.
                 Upon inquiry it was found that liability for an injury 
            on April 8, 1991 was admitted by defendants.
                 Both parties have faxed written exhibits which were all 
            considered in this decision.  Both parties were allowed to 
            submit additional evidence until 12:00 noon on December 28, 
            1992 in the interest of justice.  Only claimant testified.
                 Pursuant to written delegation of authority dated 
            December 16, 1992, the decision of the undersigned deputy 
            commissioner will be the final agency decision in this 
            Page   2
            findings of fact
                 Having reviewed the written evidence before and during 
            this telephonic hearing; having heard the testimony of 
            claimant and the statements of counsel, this deputy indus
            trial commissioner makes the following Findings of Fact:
                 First, with reference to notice of these proceedings, 
            defendants assert orally that there has been no such notice.  
            Proof of service signed by claimant's attorney set forth on 
            the petition indicates mailing by certified mail on December 
            11, 1992.  Proof of service is on file indicating service on 
            December 12, 1992.  It is found that service of process of 
            certified mail was accomplished on December 12, 1992 and 
            personal jurisdiction exists over defendants.  Also, notice 
            of the telephone hearing was sent to Mercy Hospital by this 
            agency on December 16, 1992.
                 On or about April 8, 1991, claimant, a registered 
            nurse, suffered an injury which arose out of and in the 
            course of his employment with Mercy Hospital.  The injury 
            was to claimant's back which was incurred while lifting a 
            patient.  As a result of the work injury, claimant was pro
            vided medical care by defendants.  This care consisted ini
            tially of treatment by her family physician.  Care was later 
            transferred at defendants' request to Behrouz Rassekh, M.D., 
            an orthopedic surgeon who treated claimant conservatively 
            over the next several months.  Subsequently, claimant's care 
            was transferred to Bernard Kratochvil, M.D., another ortho
            pedic surgeon.
                 In February 1992, Dr. Kratochvil opined that claimant 
            reached maximum healing and rated her permanent partial 
            impairment at five percent.  At the request of claimant, 
            claimant was evaluated by Patrick W. Bowman, M.D., in June 
            1992 who feels that claimant should undergo surgery to 
            repair a damaged vertebral disk as he believes claimant has 
            not reached maximum healing.  Dr. Bowman identifies this 
            disk abnormality as the source of claimant's disabling pain.  
            This surgery was scheduled for September 16, 1992.
                 Prior to the scheduled date of surgery, claimant was 
            evaluated by another orthopedic surgeon, Anil Agarwal, M.D., 
            who rejects a surgery and recommends only continued conser
            vative care.  Based upon this view, Mercy's insurer has 
            refused to authorize and pay for surgery.
                 Claimant's care has now been returned to Dr. Kratochvil 
            who, according to claimant, believes that the surgery option 
            is a decision which should be made by claimant, not by her 
            employer or insurer.  Care has not been transferred to Dr. 
                 Therefore, it is found that the treatment offered by 
            defendants is not reasonably suited to treat the injury 
            without undue inconvenience to the claimant and that the 
            alternate care requested should be granted.  This finding is 
            based upon Dr. Bowman's expert opinion and claimant's credi
            ble testimony that Dr. Rassekh, claimant's current physi
            cian, believes that the Bowman surgery option is a decision 
            Page   3
            best left to claimant.
                                conclusions of law
                 This is a proceeding brought under Iowa Code section 
            85.27 as amended by House File 2250 of the 74th General 
            Assembly of the State of Iowa.  This code section provides 
            in part that the employer is obligated to furnish reasonable 
            medical services and supplies to treat an injured worker and 
            the employer has the right to choose the care.  However, the 
            treatment must be provided promptly and the treatment must 
            be reasonably suited to treat the injury without undue 
            inconvenience to the employee.  If the employee is dissatis
            fied with the care offered by the employer, Iowa Code sec
            tion 85.27 provides that the employee must communicate the 
            basis of such dissatisfaction to the employer and if the 
            injured worker and the employer cannot agree on alternate 
            care, the industrial commissioner may allow and order such 
            other care.
                 As claimant is seeking relief in this case, claimant 
            bears the burden of proof to show by a preponderance of the 
            evidence that the offered medical treatment i
                                          LARRY P. WALSHIRE
                                          DEPUTY INDUSTRIAL COMMISSIONER
            Copies To:
            Mr. Jacob John Peters
            Attorney at Law
            233 Pearl Street
            P O Box 1078
            Council Bluffs, Iowa  51502
            Mr. Melvin C. Hansen
            Attorney at Law
            800 Exchange Building
            1905 Harney Street
            Omaha, Nebraska  68102-2314
                                               Filed December 29, 1992
                                               LARRY P. WALSHIRE
                     before the iowa industrial commissioner
            DEBORAH BUCK LOVELADY,        :
                                          :       File No. 981523
                 Claimant,                :
                                          :      A L T E R N A T E
            vs.                           :
                                          :           C A R E
            MERCY HOSPITAL,               :
                                          :       D E C I S I O N
                 Employer,                :
            and                           :
            RELIANCE,                     :
                 Insurance carrier,       :
                 Defendants.              :
            2501 - Alternate care proceeding
                 Surgical option awarded as authorized physician stated 
            that such decisions should be made by patient, not insurers.