954006

5-1801
Filed May 24, 1993
Jean M. Ingrassia

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________

VERLIN FREDERICK,

Claimant,

vs.
File No. 954006
SEARS ROEBUCK & COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and

ALLSTATE INSURANCE CO.,

Insurance Carrier,
Defendants.
___________________________________________________________

5-1801

Claimant found entitled to temporary total disability
benefits for time off work as a result of an injury to his
right ankle while at home. Such injury was found to be the
proximate result of the original injury on June 27, 1990.
Causation was established by claimant's treating surgeon.
He stated that claimant's bimalleolar fracture was
significantly related to his previous heel injury and heel
fractures. Defendants produced no medical evidence to the
contrary.

Page 1

before the iowa industrial commissioner
____________________________________________________________
_____
:
BONNIE STEPHENSON, :
:
Claimant, :
:
vs. :
: File Nos. 954358/954359
FURNAS ELECTRIC, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
_____

The record, including the transcript of the hearing
before the deputy and all exhibits admitted into the record,
has been reviewed de novo on appeal.

issues

Claimant states the following issues on appeal:

Whether the deputy erred in concluding Bonnie's
second healing period expired July 29, 1990;

Whether the deputy erred in concluding the
defendants are not financially responsible for the
purchase of a hot tub prescribed by an authorized
treating physician for the treatment of her work
related repetitive motion disorder;

Whether the deputy erred in concluding Bonnie's
repetitive motion disorder is a scheduled member
instead of a body as a whole condition entitling
her to an award of industrial disability benefits
when the unrefuted medical and lay testimony
established that the symptoms and pathology
associated with her disorder are not confined to
either of her left or right arms but rather
include both shoulders and areas of the

Page 2

anatomy immediately proximal to the shoulders
including the paracervical and scapular regions;

Whether the deputy erred in failing to award
permanent total disability benefits pursuant to
section 85.34(2)(s) and (3) for the disablement
associated with her repetitive motion disorder
when the unrefuted medical evidence clearly
established Bonnie was incapable of performing
even sedentary employment activities;

Whether the deputy erred in refusing to rule
upon Bonnie's contention that her repetitive
motion disorder is an occupational disease as
defined by section 85A.8, entitling her to
benefits pursuant to section 85A.4;

Whether the deputy erred in sustaining the
defendants' motion to strike the testimony of
Bonnie's vocational expert notwithstanding the
fact that the identity of the witness and the
content of his opinions and conclusions was
disclosed via supplemental answers to
interrogatories 30 days prior to hearing in
compliance with the hearing assignment order and
IRCP 125(c).

findings of fact

The findings of fact contained in the proposed agency
decision filed December 20, 1991 are adopted as set forth
below. Segments designated by asterisks (*****) indicate
portions of the language from the proposed agency decision
that have been intentionally deleted and do not form a part
of this final agency decision.

Claimant is a 42-year-old high school graduate who has
no other formal education. Claimant's work history prior to
January of 1984 included working as a waitress and as a
department store clerk. She then worked six months for
defendant employer beginning January of 1984 and after a
layoff, she was a waitress and salad and roll maker until
she began working for defendant employer again in January
1986. Claimant worked for defendant employer until June of
1990. Claimant described her work duties in her various
jobs.

Claimant described in detail her duties on the assembly
line while working for defendant employer, which duties
included building switches. Claimant contends she had no
prior problems with her hands and arms or shoulders prior to
her alleged injuries.

Claimant described the expected efficiency levels
required and indicated an 80 percent requirement after 90
days. Claimant's exhibit 4, pages 29 to 44, show her
reviews and the fact she was not able to meet the goals.
She said she needed to be faster. Claimant related the
extensive use of her hands and arms in her work. Claimant
said she often felt popping in the shoulder, arms and neck

Page 3

when she had to exert certain pressure in the use of torque
screwdrivers, etc. At times, claimant said she had to lift
boxes of switches weighing up to 50 pounds.

Claimant related that she made an appointment on
December 2, 1988, to see the doctor. She had bid on another
job because of her arm trouble. Claimant said she scheduled
an interview but needed to leave to see the doctor. The
interviewer told her she wasn't needed in the other bid job
if she had arm trouble.

Claimant said that when she first saw Thomas J. Lower,
D.O., for her right arm, shoulder and neck, he indicated
claimant had the same problem on the left even though
claimant was not experiencing problems on the left. Splints
were put on both arms and claimant was given light duty.
Claimant described her medical treatment and related her
right hand and elbow surgery in March 1989 performed by
Douglas S. Reagan, M.D.

Claimant bid into a setup job in 1989 and held this job
until the end of her employment with defendant employer in
June of 1990 (Claimant's Exhibit 4, page 45). On June 18,
1990, Thomas W. Bower, LPT, put an electricity apparatus on
claimant to test her and claimant said she experienced
extreme pain. Claimant continued to have problems with her
arms and said she could not stand to have someone touch her
arm or shoulder. Claimant hasn't worked since June 21,
1990.

Claimant said riding a lawn mower, riding in or driving
a car bothers her. Vibrations trigger the pain.

In joint exhibit E, page 13, Dr. Reagan sets out
claimant's restrictions on August 9, 1990, which included a
five pound lifting restriction, no use of the right hand and
limited use of the left hand. On October 4, 1990, joint
exhibit E, page 15, Dr. Reagan sets out claimant's
restrictions which included the five pound lifting
restriction and limited use of claimant's right hand and
working at her own speed. He said this condition was work
related. Dr. Reagan recommended claimant be referred to
vocational rehabilitation for her bilateral upper extremity
problems (Jt. Ex. E, p. 22).

Claimant indicated the doctor said some people are
benefited by the use of a hot tub. Claimant used a friend's
tub and it

Page 4

helped. Claimant purchased a hot tub in March of 1991.
After six weeks, claimant was improved and the doctor then
wrote a prescription for a hot tub for claimant on May 31,
1991 (Jt. Ex. E, p. 9). By May 1991, claimant said she was
able to increase her activities.

Claimant stated she tried to find work beginning
December 1990 in Osceola, and has sent out over 95
applications and has had a few interviews but has not been
hired. She related her restrictions and arm problems are
affecting her ability to get a job. Claimant said she is
never without pain.

Claimant was making $6.47 per hour and had family
insurance, retirement benefits and dental insurance when she
worked for defendant employer. She said she can't get
insurance now.

Eldon Stephenson, claimant's husband, testified that he
and claimant did a lot of things together as a family and
now it is different. Claimant no longer golfs and does not
use a computer. She no longer does gardening, yard work,
etc. He related claimant cannot do the crafts and painting
she used to do.

He related the hot tub bids and said they now have a
hot tub outside. The hot tub cost $1,291 (Cl. Ex. 7). He
acknowledged Dr. Reagan wrote a prescription after claimant
used a friend's hot tub and he and claimant eventually
bought a hot tub (Jt. Ex. E, p. 9).

Joint exhibit C, page 1, sets out claimant's right
carpal tunnel, ulnar tunnel and cubital tunnel release
surgery.

On March 29, 1990, Dr. Reagan opined a 6 percent
impairment to claimant's right upper extremity (Jt. Ex. E,
p. 5). On June 28, 1990, Dr. Reagan indicated the insurance
company thought his rating was too high and the insurance
carrier sent claimant to Thomas Bower, LPT, who opined an
eight percent impairment. Dr. Reagan thought that was
reasonable. On August 9, 1990, Dr. Reagan felt that
claimant would not be able to return to her prior employment
with defendant employer. He gave claimant a work release
for no use of claimant's right upper extremity and light
duty for the left upper extremity (Jt. Ex. E, p. 7). Dr.
Reagan's notes of March 21, 1990, reflects a six percent
permanent partial impairment of claimant's upper left
extremity.

Joint exhibit E, pages 15 and 22, show an October 4,
1990 letter which appears to be claimant's current permanent
restrictions. Dr. Reagan also recommended claimant be
referred to vocational rehabilitation (Jt. Ex. E, pp. 21 and
22). Joint exhibit E, page 1, reflects Mr. Bower's eight
percent permanent partial impairment of claimant's right
upper extremity.

*****

Page 5

conclusions of law

The first issue to be resolved is the extent of
claimant's healing period. Iowa Code section 85.34(1)
provides that healing period benefits are payable to an
injured worker who has suffered permanent partial disability
until (1) the worker has returned to work; (2) the worker is
medically capable of returning to substantially similar
employment; or (3) the worker has achieved maximum medical
recovery. The healing period can be considered the period
during which there is a reasonable expectation of
improvement from the disabling condition. See Armstrong
Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981).
Healing period benefits can be interrupted or intermittent.
Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). On August 9,
1990 Dr. Reagan, claimant's treating doctor, gave claimant
her work release. That work release indicates that on that
date her healing period ended.

The second issue to be decided is if defendants are
liable for the purchase of claimant's hot tub. Iowa Code
section 85.27 provides in relevant part:

The employer, for all injuries compensable
under this chapter or chapter 85A, shall furnish
reasonable surgical, medical, dental, osteopathic,
chiropractic, podiatric, physical rehabilitation
nursing, ambulance and hospital services and
supplies therefor and shall allow reasonably
necessary transportation expenses incurred for
such services. The employer shall also furnish
reasonable and necessary crutches, artificial
members and appliances but shall not be required
to furnish more than one set of permanent
prosthetic devices.

Claimant has the burden of proving entitlement to
reimbursement for the hot tub. Claimant cites no authority
which supports her position. Purchase of the hot tub is
clearly not specifically authorized under Iowa Code section
85.27. Dr. Reagan's "prescription" for a hot tub can be
given little weight, if any. The "prescription" was written
in May 1991 two months after the hot tub was purchased and
it is clear that the "prescription" was written pursuant to
the patient's request. (See Joint Exhibit E, page 11)

The third issue to be resolved is whether claimant's
disability is a scheduled member injury. The claimant has
the burden of proving by a preponderance of the evidence
that the

Page 6

injury is a proximate cause of the disability on which the
claim is based. A cause is proximate if it is a substantial
factor in bringing about the result; it need not be the only
cause. A preponderance of the evidence exists when the
causal connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).

The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).

The right of an employee to receive compensation for
injuries sustained is statutory. The statute conferring this
right can also fix the amount of compensation payable for
different specific injuries. The employee is not entitled
to compensation except as the statute provides. Soukup v.
Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).

Compensation for permanent partial disability begins at
termination of the healing period. Iowa Code section
85.34(2). Permanent partial disabilities are classified as
either scheduled or unscheduled. A specific scheduled
disability is evaluated by the functional method; the
industrial method is used to evaluate an unscheduled
disability. Simbro v. Delong's Sportswear, 332 N.W.2d 886
(Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116
(Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106
N.W.2d 95 (1960).

An injury to a scheduled member may, because of after
effects or compensatory change, result in permanent
impairment of the body as a whole. Such impairment may in
turn be the basis for a rating of industrial disability. It
is the anatomical situs of the permanent injury or
impairment which determines whether the schedules in Iowa
Code section 85.34(2)"a"-"t" are applied. Lauhoff Grain v.
McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v.
All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v.
Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).

Page 7

Claimant has not met her burden of proving that her
disability extends into the body as a whole. A claimant's
subjective complaints of pain are not sufficient to extend
an injury to a body as a whole. The impairment ratings of
Dr. Reagan, claimant's treating doctor indicate the
impairment is limited to the claimant's arms. Claimant
cites no reliable medical evidence in the record to support
her allegation that her disability extends into the body as
a whole.

Because claimant's disability is limited to scheduled
members and because all parties agree that she has had a
simultaneous injury, claimant is to be evaluated pursuant to
Iowa Code section 85.34(2)(s).

Total disability does not mean a state of absolute
helplessness. Permanent total disability occurs where the
injury wholly disables the employee from performing work
that the employee's experience, training, education,
intelligence and physical capacities would otherwise permit
the employee to perform. See McSpadden v. Big Ben Coal Co.,
288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City Ry. Co.,
219 Iowa 587, 258 N.W. 899 (1935).

A finding that claimant could perform some work despite
claimant's physical and educational limitations does not
foreclose a finding of permanent total disability, however.
See Chamberlin v. Ralston Purina, File No. 661698 (App.
October 29, 1987); Eastman v. Westway Trading Corp., II Iowa
Industrial Commissioner Report 134 (App. 1982).

Claimant is not permanently totally disabled. She is
employable. Claimant's entitlement to benefits is under
Iowa Code section 85.34(2)(s). Dr. Reagan has given
claimant a six percent permanent partial impairment of the
upper left extremity. Although he originally rated
claimant's impairment to the upper right extremity as six
percent he subsequently agreed that an eight percent rating
was reasonable. Therefore, claimant's impairment rating to
the right upper extremity is eight percent. The six and
eight percent impairment ratings convert to a combined value
of nine percent of the body as a whole using the AMA Guides
to the Evaluation of Permanent Impairment. The nine percent
disability entitles claimant to 45 weeks of permanent
partial disability.

The next issue to be resolved is whether claimant's
condition is an occupational disease. Claimant has been
diagnosed as having had carpal tunnel syndrome. Dr. Reagan
on February 3, 1989 indicated that she may have also had
ulnar tunnel syndrome and cubital tunnel syndrome. All
these were caused by repetitive motion traumas. This agency
has previously ruled that bilateral carpal tunnel syndrome
caused by repetitive trauma is not an occupational disease
and would be compensable under Iowa Code chapter 85. Noble
v. Lamoni Products, (file nos. 857575 and 851309) (Appeal
decision May 7, 1992). The reasoning contained in Noble,
Id., are incorporated by reference in this decision.

The last issue to be resolved is whether the deputy

Page 8

abused his discretion in finding the testimony of claimant's
vocational expert should be excluded. Defendants had served
interrogatories on claimant requesting identification of
expert witnesses. Claimant's counsel contacted the
vocational expert in October 1991 about the possibility of
testifying. (This matter was scheduled for hearing in an
order dated July 11, 1991.) Claimant supplemented her
answers to interrogatories to include the name of the expert
on November 6, 1991. It is not an abuse of discretion to
not allow the testimony of the vocational expert. If, as
claimant contends, the testimony was important to determine
employability of claimant, then it would be reasonable to
expect defendants to be notified in a more timely manner so
that they could prepare their case. It was not an abuse of
discretion to exclude the testimony of the vocational
expert.

WHEREFORE, the decision of the deputy is affirmed and
modified.

order

THEREFORE, it is ordered:

That defendants shall pay claimant healing period
benefits at the rate of one hundred eighty and 13/100
dollars ($180.13) per week for the period beginning December
24, 1988 through September 7, 1989, and beginning again June
21, 1990 through August 9, 1990.

That defendants shall pay unto claimant forty-five (45)
weeks of permanent partial disability benefits at the rate
of one hundred eighty and 13/100 dollars ($180.13),
commencing August 10, 1990.

That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid.

That defendants do not have to pay for a hot tub for
the claimant.

That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.

That claimant shall pay the costs of the appeal
including the transcription of the hearing. Defendants
shall pay all other costs.

That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.

Signed and filed this ____ day of December, 1992.

________________________________

Page 9

BYRON K. ORTON
INDUSTRIAL COMMISSIONER

Copies To:

Mr. Steven C. Jayne
Attorney at Law
5835 Grand Ave., Ste 201
Des Moines, IA 50312

Mr. Joseph Cortese II
Attorney at Law
500 Liberty Bldg.
Des Moines, IA 50309

Mr. Helmut A. Mueller
Attorney at Law
RR 5
Osceola, IA 50213

5-1802; 5-1803.1; 5-2203;
2500; 5-3700
Filed December 21, 1992
BYRON K. ORTON
BJO

before the iowa industrial
commissioner
_________________________________________________________________
:
BONNIE STEPHENSON, :
:
Claimant, :
:
vs. :
: File Nos. 954358/954359
FURNAS ELECTRIC, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
_________________________________________________________________

5-1802
Claimant's healing period ended when claimant was released to
return to work.

5-1803.1
Claimant's bilateral carpal tunnel syndrome was compensated
pursuant to 85.34(2)(s). Claimant's subjective complaints of
pain were not sufficient to extend disability to the body as a
whole.

5-2203
Claimant's repetitive trauma disorders were not occupational
diseases. Noble v. Lamoni Products, (Appeal Decision May 7,
1992) cited as authority.

2500
Defendants not liable for purchase of hot tub for claimant.
Claimant's doctor "prescribed" hot tub after it had been
purchased and after claimant requested the prescription.

5-3700
It was not an abuse of discretion to exclude testimony of expert
witness when interrogatories were not supplemented in a timely
manner.

Page 1

before the iowa industrial commissioner
____________________________________________________________
:
BONNIE STEPHENSON, :
:
Claimant, : File Nos. 954358
: 954359
vs. :
:
FURNAS ELECTRIC, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE, :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________

STATEMENT OF THE CASE

This case came on for hearing on December 5, 1991, at
Des Moines, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits as a result of alleged injuries on
December 2, 1988 and December 24, 1988. The record in the
proceedings consist of the testimony of the claimant;
claimant's husband, Eldon Stephenson; joint exhibits A
through F; and claimant's exhibits 4 through 8.

issues

The issues for resolution are:

1. The nature and extent of claimant's permanent
disability and entitlement to disability benefits;

2. Claimant's entitlement to 85.27 medical benefits.
The only item in dispute is the cost of a hot tub; and,

3. Whether claimant has an 85A occupational disease.

findings of fact

The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:

Page 2

jobs.

Claimant said riding a lawn mower, riding in or driving
a car bothers her. Vibrations trigger the pain.

In joint exhibit E, page 13, Dr. Reagan sets out
claimant's restrictions on August 9, 1990, which included a
5 pound lifting restriction, no use of the right hand and
limited use of the left hand. On October 4, 1990, joint
exhibit E, page 15, Dr. Reagan sets out claimant's
restrictions which included the 5 pound lifting restriction
and limited use of claimant's right hand and working at her
own speed. He said this condition was work related. Dr.
Reagan recommended claimant be referred to vocational
rehabilitation for her bilateral upper extremity problems
(Jt. Ex. E, p. 22).

Page 3

Claimant indicated the doctor said some people are
benefited by the use of a hot tub. Claimant used a friend's
tub and it helped. Claimant purchased a hot tub in March of
1991. After six weeks, claimant was improved and the doctor
then wrote a prescription for a hot tub for claimant on May
31, 1991 (Jt. Ex. E, p. 9). By May 1991, claimant said she
was able to increase her activities.

Claimant was making $6.47 per hour and had family
insurance, retirement benefits and dental insurance when she
worked for defendant employer. She said she can't get
insurance now.

Joint exhibit C, page 1, sets out claimant's right
carpal tunnel, ulnar tunnel and cupital tunnel release
surgery.

On March 29, 1990, Dr. Reagan opined a 6 percent
impairment to claimant's right upper extremity (Jt. Ex. E,
p. 5). On June 28, 1990, Dr. Reagan indicated the insurance
company thought his rating was too high and the insurance
carrier sent claimant to Thomas Bower, LPT, who opined an 8
percent impairment. Dr. Reagan thought that was reasonable.
On August 9, 1990, Dr. Reagan felt that claimant would not
be able to return to her prior employment with defendant
employer. He gave claimant a work release for no use of
claimant's right upper extremity and light duty for the left
upper extremity (Jt. Ex. E, p. 7). Dr. Reagan's notes of
March 21, 1990, reflects a 6 percent permanent partial
impairment of claimant's upper left extremity.

Joint exhibit E, pages 15 and 22, show an October 4,
1990 letter which appears to be claimant's current permanent
restrictions. Dr. Reagan also recommended claimant be
referred to vocational rehabilitation (Jt. Ex. E, pp. 21 and
22). Joint exhibit E, page 1, reflects Mr. Bower's 8
percent permanent partial impairment of claimant's right
upper extremity.

There is no dispute that claimant incurred a

Page 4

simultaneous bilateral carpal tunnel injury on December 2,
1988 or December 24, 1988. The parties explained that the
December 2, 1988 is the date claimant reported the symptoms
and on December 24, 1988 is the date of disablement and lost
time. All the parties agree that there was a simultaneous
bilateral carpal tunnel that occurred on one of the two
dates. For purposes of this decision, the undersigned
finds December 24, 1988 as the date of the simultaneous
bilateral carpal tunnel injury.

Claimant contends that he has industrial disability and
body as a whole injury and that her injuries are not limited
to scheduled members or only limited to the provisions of
85.34(2)(s). There is no specific reference as far as any
impairment as to reasons for the restrictions relating to
anything other than claimant's bilateral carpal tunnel
condition. Claimant is obviously using joint exhibit E,
pages 24 through 27, to indicate that these injuries extend
into claimant's body as a whole. Notwithstanding the fact
the doctor basically agreed to the statements in claimant's
attorney's letter, the doctor did not specifically adjust or
change his impairment proceedings which prior to those
letters was strictly in reference to claimant's upper
extremities with no specific mention that they extend into
the body as a whole. The undersigned finds that claimant's
simultaneous bilateral carpal tunnel injury on December 24,
1988 did not extend into claimant's body as a whole and that
we are, in fact, dealing with an injury under the provisions
of 85.34(2)(s).

The insurance company paid on the basis of 40 weeks of
permanent partial disability benefits arriving at the figure
by taking 6 percent permanent impairment to claimant's left
and right upper extremities and converting them under the
charts and arriving at an 8 percent combined chart body as a
whole impairment rating. The insurance company was not
satisfied with Dr. Reagan's 6 percent permanent impairment
to claimant's right upper extremity and requested another
opinion. They received that other opinion which indicated
an 8 percent permanent impairment. The undersigned finds
that under the circumstances, the 8 percent is more accurate
and Dr. Reagan considers that reasonable too. It could be
determined that he agreed that his 6 percent should be 8, or
at least he did not disagree with an 8 percent. Using the
combined charts, this would come to a 9 percent combined
body as a whole permanent impairment.

The undersigned is concerned by the extensive
restrictions that the claimant has. Dr. Reagan's October 5,
1990 letter indicates that claimant may return to light duty
activities with the following permanent restrictions,
namely, a 5 pound weight lifting restriction, no repetitive
activities, use of a splint and work at her own speed for
both upper extremities. These restrictions do not seem to
have been changed to the present. The doctor recommended
that claimant not return to her employment duties with
defendant employer as she would probably aggravate her
disorders, resulting in symptoms and disability. Claimant's
exhibits 5, pages 49, 51 and 53, indicate defendant employer
does not have any work available for claimant within Dr.

Page 5

Reagan's restrictions. There is no specific indication,
when the doctor and LPT opined an impairment, that they
specifically considered claimant's inability to return to
work and severe restrictions in the impairment.

Looking at the record as a whole, it does not seem
that those impairment ratings are reasonable in light of the
severe restrictions this claimant has. The undersigned
believes that he has the discretion to take all of the
circumstances into consideration, including agency
precedence or experience, and determine the extent of
claimant's impairments. The undersigned is not specifically
going to increase the particular impairments that the doctor
and the physical therapist arrived at, but the undersigned
is taking into consideration those impairments and the
severe restrictions in determining that claimant, in fact,
has more than a 9 percent body as a whole impairment under
the provisions of 85.34(2)(s). The undersigned feels that
45 weeks (9 times 500 weeks) would be unfair and unjust
under the facts of this case considering the severe
restrictions. It is obvious that the employer is not able
to provide any work within those restrictions and it doesn't
look like the employer is disagreeing with those
restrictions. The medical opinions do not indicate how they
arrived at the impairment and do not indicate they referred
to the AMA Guides. It appears to the undersigned that the
impairment ratings do not appear consistent with the severe
restrictions claimant has and the limitation of no
repetitive activities. Therefore, the undersigned is
finding that claimant is entitled to 75 weeks of permanent
partial disability benefits rather than what would otherwise
have been 45 weeks if there was strict reliance on 8 and 6
percent permanent partial impairment and using the combined
charts under 85.34(2)(s).

The parties are disputing over the extent of claimant's
healing period. Claimant contends the healing period is
June 21, 1990 up to October 4, 1990, which is the date the
doctor gave claimant's restrictions (Jt. Ex. E, p. 15 and
22) and defendants contend it is June 21, 1990 through July
29, 1990. There are some additional times earlier than
those periods to which the parties are not in dispute. If
one looked at the medical records at the time where
impairment opinions were given, there would even be
different times than what the defendants contend. The
undersigned believes that the defendants' contention is
correct based on the medical evidence and the undersigned so
finds. The undersigned therefore finds, considering all the
healing period including that which the parties are not in
dispute, that the claimant incurred a healing period from
December 24, 1988 through September 7, 1989, and June 21,
1990 through July 29, 1990.

Claimant contends he is entitled to the cost of a hot
tub under the provisions of 85.27. It is undisputed that
the claimant bought the hot tub prior to the doctor writing
a prescription. It is obvious the doctor wrote a
prescription after claimant used the hot tub and seemed to
receive relief. The undersigned believes that the hot tub
is an instrument that has multi-use. There are others

Page 6

besides claimant living at the premises and the hot tub is
available for them to use. Even though there is no
testimony that others use the hot tub, the undersigned finds
that the hot tub has other than medical use and that
defendants should not be obligated to pay for it.

As an alternative, claimant contends that his medical
condition is an occupational disease under 85A. The
undersigned has consistently held the position that when you
have scheduled member injuries, agency precedent to date
holds that they are not considered an occupational disease.

The undersigned feels that there is no need to go into
detail as far as explaining his position and covering the
various pros and cons until the industrial commissioner
and/or higher authority finds that scheduled member injuries
can be occupational diseases. The undersigned is not
desirous of getting into the dispute or finding contrary to
current agency precedence. The undersigned realizes that
there is a very small minority of deputies that are finding
occupational diseases in scheduled member cases, but that
this is contrary to not only agency precedence but contrary
to the majority of the deputies' opinions.

conclusions of law

Iowa Code section 85.34(2)(2) provides, in part: "The
loss of both arms, or both hands, or both feet, or both
legs, or both eyes, or any two thereof, caused by a single
accident, shall equal five hundred weeks and shall be
compensated as such."

Workers' compensation benefits for permanent partial
disability of two members caused by a single accident is a
scheduled benefit under Iowa Code section 85.34(2)(s) and
that the degree of impairment caused by a partial loss must
be computed on the basis of functional, rather than
industrial disability. Simbro v. DeLong's Sportswear, 332
N.W.2d 886 (1983).

Iowa Code section 85.34(1) provides that if an employee
has suffered a personal injury causing permanent partial
disability, the employer shall pay compensation for a
healing period from the day of the injury until (1) the
employee returns to work; or (2) it is medically indicated
that significant improvement from the injury is not
anticipated; or (3) until the employee is medically capable
of returning to substantially similar employment.

Page 7

It is further concluded that:

Claimant incurred an injury on December 24, 1988, that
resulted in a simultaneous bilateral carpal tunnel injury to
claimant's right and left upper extremity, resulting in
claimant incurring 75 weeks of permanent partial disability
benefits at the rate of $180.13 per week with benefits
beginning July 30, 1990.

Claimant did not incur a simultaneous bilateral carpal
tunnel syndrome on December 2, 1988.

Claimant is not entitled to have defendants pay for a
hot tub under the provisions of 85.27 of the Iowa Code.

Claimant does not have an occupational disease under
the provisions of chapter 85A.

order

THEREFORE, it is ordered:

That defendants shall pay unto claimant healing period
benefits at the rate of one hundred eighty and 13/100
dollars ($180.13) per week for the period beginning December
24, 1988 through September 7, 1989, and beginning again June
21, 1990 through July 29, 1990, which encompasses forty-two
(42) weeks.

That defendants shall pay unto claimant seventy-five
(75) weeks of permanent partial disability benefits at the
rate of one hundred eighty and 13/100 dollars ($180.13),
commencing July 30, 1990.

That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. The parties stipulated
that defendants have paid sixty-one point eight five seven
(61.857) weeks of benefits.

Defendants do not have to pay for a hot tub for the
claimant.

That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.

That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.

That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.

Page 8

Signed and filed this ____ day of December, 1991.

______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER

Copies to:

Mr Steven C Jayne
Attorney at Law
5835 Grand Ave Ste 201
Des Moines IA 50312

Mr Joseph Cortese II
Attorney at Law
500 Liberty Bldg
Des Moines IA 50309

Mr Helmut A Mueller
Attorney at Law
RR 5
Osceola IA 50213

1803.1; 1803; 5-1802
2203; 2505
Filed 12-20-91
Bernard J. O'Malley

1803.1; 1803
Held claimant entitled to 75 weeks of permanent partial
disability under 85.34(2)(s) for a bilateral simultaneous
carpal tunnel syndrome. Impairment ratings of 6 and 8 were
opined which converted to 45 weeks (9% x 500 = 45 weeks),
but claimant has severe restrictions and deputy used agency
experience, and considering entire record found 75 weeks
under 85.34(2)(s).

5-1802
Deputy accepted defendants' healing period ending through
July 29, 1990 rather than claimant's October 4, 1990.

2505
Found defendants not liable to pay for claimant's hot tub
under 85.27. Hot tub prescription written two months after
claimant already bought a hot tub. Also, hot tube available
for family use.

2203
Held not an occupational disease. Deputy referred to
current agency precedent and did not go into detail on this
alternative claim.

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
PAUL E. FAGENBAUM, :
:
Claimant, : File No. 954362
:
vs. :
: A R B I T R A T I O N
JOHN DEERE WATERLOO WORKS, :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________

STATEMENT OF THE CASE

This is a proceeding in arbitration brought by Paul E.
Fagenbaum, claimant, against John Deere Waterloo Works,
self-insured employer, defendant, to recover benefits under
the Iowa Workers' Compensation Act as a result of an injury
sustained on March 31, 1988. This matter came on for
hearing before the undersigned deputy industrial
commissioner on October 20, 1992, in Waterloo, Iowa. The
record was considered fully submitted at the close of the
hearing. The claimant was present and testified. Also
present and testifying were Roberta Fagenbaum, Larry Meyer
and Kenneth Taylor. The documentary evidence identified in
the record consists of joint exhibits 1 through 7 and
defendant's exhibit A.

ISSUES

Pursuant to the prehearing report and order dated
October 20, 1988, the parties have presented the following
issues for resolution:

1. Whether claimant sustained an occupational hearing
loss which arose out of and in the course of employment with
employer;

2. Whether the work injury is a cause of permanent
disability; and,

3. The extent of entitlement to weekly compensation
for permanent disability, if defendant is found liable for
the injury.

FINDINGS OF FACT

The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:

Claimant is 29-year employee of employer. Claimant
graduated from high school in 1955 and worked approximately
four years with the railroad laying new rails and painting.

Page 2

He commenced working for employer on March 23, 1959. He
retired on March 31, 1988.

The dates, departments and the job duties which
claimant performed from March 23, 1959 to March 31, 1988,
are shown on exhibit 7-2.

Claimant testified and exhibit 7-2 shows, that from
March 23, 1959 through April 24, 1972, a period of
approximately ten years, minus lay offs, claimant worked in
the foundry in departments 98, 97, 89, and 88. He described
the foundry department as very noisy and surrounded by other
noisy departments. From 1972 through 1975, he worked on the
assembly paint line. This department was in close proximity
to the mig welders. Their duties included grinding and
buffing metal which emitted a very high pitched sound. In
1979 he worked as a parts handler which was in close
proximity to the reclaim booth where used grinders were
sanded. During the last two years of his employment, from
1986 to 1988, he operated a fork lift in the shipping
department. The noise level in this department was muted
compared to the other departments in which he previously
worked.

Employer's noise level reports and surveys show that
the noise in the departments in which claimant frequently
worked exceeded 90 decibels and sometimes exceed 115
decibels. The reports establish a general noise level in
the departments in which claimant worked during his tenure
with employer.

Claimant testified that he worked in or near a noisy
environment by describing the work he performed and the work
performed around him and the noise it created. Claimant's
testimony was corroborated by two retired John Deere
employees, Larry Meyer and Kenneth Taylor, who worked in
departments described by claimant.

Claimant's evidence was not controverted, contradicted,
rebutted, or refuted except the alleged onset date of his
hearing deficit. Claimant testified that he first noticed a
diminishment in his hearing capacity in 1974. However, in
his deposition taken in March 1991, he stated that this
deficit became apparent in 1984.

The medical evidence contains the results of
audiometric testing performed while claimant was an employee
with employer. The results indicate that in 1971 he had
zero total, binaural (both ears) percent hearing loss. In
1983 he had 1.56 total, binaural percent hearing loss
(exhibit 3B); and in 1987 he had 11.8 total, binaural
percent hearing loss (ex. 3A).

On March 1, 1990, claimant presented to C.D. Bendixen,
M.D., employer's company doctor, inquiring about hearing
loss compensation. On March 7, 1990, Dr. Bendixen reported
that claimant has had a 9 percent binaural hearing drop
since he was tested just prior to retirement (ex. 4-4). An
audiogram performed in March 1990 revealed a 19.1 total
binaural percent hearing loss (ex. 3). Dr. Bendixen

Page 3

believed that claimant's hearing loss was caused by a
process other than noise since the loss was more prevalent
in the lower frequencies. He referred him to Michael W.
Hill, M.D., at the Wolfe Clinic (ex. 4-4).

Claimant was seen by Dr. Hill on May 17, 1990, for
evaluation of his hearing. An audiometric test revealed a
sloping high frequency sensorineural hearing loss
representing a 15.6 total binaural percent hearing loss
(exs. 2; 4-1).

Dr. Hill reviewed the results of audiometric testing
performed in May 1990 and concluded that claimant's
persistent hearing loss was due to presbycusis (ex. 4-1).

Claimant was referred to E.L. Grandon, M.D., for
evaluation and audiogram on October 17, 1991. According to
Dr. Grandon, claimant's audiogram revealed a bilateral
sensorineural hearing loss with poorer discrimination in the
right ear than the left. Using the formula set out in Iowa
Code section 85B.9, Dr. Grandon calculated claimant's
binaural hearing loss at 22 percent. Contrary to Dr. Hill,
it was Dr. Grandon's opinion that claimant's significant
hearing loss was work related (ex. 1).

CONCLUSIONS OF LAW

The first issue to be determined is whether claimant
has sustained an occupational hearing loss pursuant to Iowa
Code section 85B.

Iowa Code section 85B.4(1) defines occupational hearing
loss as a permanent sensorineural loss of hearing in one or
both ears in excess of 25 decibels which arises out of and
in the course of employment caused by prolonged exposure to
excessive noise levels.

Iowa Code section 85B.4(2) defines excessive noise
level as sound capable of producing occupational hearing
loss.

Iowa Code section 85B.5 states that excessive noise
level is sound which exceeds the times and intensities
listed in the table shown in that section. A decibel level
exceeding 90 in an 8-hour workday is considered excessive.

As with any type of workers' compensation claim,
including an occupational hearing loss claim, the claimant
has the burden of proving by a preponderance of the evidence
that he has a hearing loss due to noise exposure in the work
environment and it is causally related to the disability on
which he now bases his claim. Bodish v. Fischer, Inc., 257
Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co.,
236 Iowa 296 18 N.W.2d 607 (1945); 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

Page 4

with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id., at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman v. Central Telephone
Co., 261 Iowa 352, 154 N.W.2d 128 (1967).

When the opinions of Dr. Hill and Dr. Grandon are taken
into consideration, along with claimant's testimony, the
testimony of Larry Meyer and Kenneth Taylor, the noise level
reports, and the audiograms taken over the years, it is
determined that claimant has sustained his burden of proof
by a preponderance of the evidence that he sustained a
bilateral sensorineural hearing loss in one or both ears
which arose out of and in the course of employment with
employer due to prolonged exposure to excessive noise
levels.

Employer's own records show that sound level surveys
conducted reveal decibel ratings for the departments in
which claimant either worked or worked around, exceeded 90
decibels. Claimant testified that he worked eight hours per
day, at least five days per week for 29 years. Therefore,
claimant has established prolonged exposure to excessive
noise levels.

Defendant asserts that something other than claimant's
employment caused his hearing loss for the reason that it
has continued to deteriorate after his retirement. However,
both Dr. Hill and Dr. Grandon describe claimant's hearing
loss as bilateral and sensorineural. Dr. Grandon felt that
it was noise induced and work related. Dr. Hill suggested
that aging was the cause. However, when considering their
opinions in conjunction with employer's noise level surveys
and claimant's long history of employment in areas where the
decibel level exceeded 90 decibels as well as audiology
reports that show a generally increasing loss of hearing
over the period of claimant's employment, claimant has
sustained his burden of proof as to a work-caused
occupational hearing loss. When the medical evidence is
considered with all of the other evidence in this case, the
weight of the evidence is that claimant has sustained an
occupational hearing loss in excess of 25 decibels in one or
both ears which arose out of and in the course of employment
with employer from prolonged exposure to excessive noise
levels.

When medical evidence alone is not sufficient to
support a finding of causal connection, it may,
nevertheless, be coupled with nonexpert testimony to sustain
a finding of causal connection. Giere v. Aase Haugen Homes,
Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).
Furthermore, claimant need not prove that work was the sole
cause of his hearing loss, he need only prove that it is

Page 5

traceable to work and claimant has more than satisfied this
burden. Langford v. Kellar Excavating and Grading, Inc.,
191 N.W.2d 667 (Iowa 1971).

The fact that claimant's hearing has continued to
deteriorate after his employment is simply an unexplained
fact in this case. It can neither be assumed that the
possible continual loss after retirement was or was not
caused by claimant's work. There is simply no evidence to
explain this factor. Claimant has established a compensable
hearing loss by the weight of the evidence in this case.

The next issue to be determined is the extent of
claimant's disability. Iowa Code section 85B.9 specifies
that if more than one audiogram is taken following the
notice of an occupational hearing loss claim, the audiogram
having the lowest threshold shall be used to calculate
occupational hearing loss. The exact date when claimant
made a claim is not a matter of evidence in this record.
However, three audiograms were taken after the date of
retirement. The first was performed by employer in March
1990 and showed a 19.1 percent loss. The second was taken
by Dr. Hill on May 16, 1990, and showed a 15.6 percent loss.
The third audiogram was taken by Dr. Grandon on October 17,
1991, and showed a 22 percent loss.

The lowest audiogram taken following claimant's
retirement is the audiogram of Dr. Hill which shows a 15.6
percent loss (exs. 2 & 4), and is used to determine the
extent of loss in this case.

Iowa Code section 85B.6 states that the maximum
compensation is 175 weeks for a total occupational hearing
loss and that a partial loss is payable for a period
proportionate to the relation which the calculated binaural
hearing loss bears to an allowable total hearing loss of 175
weeks. Since there is no preexisting hearing loss in this
case, apportionment is not appropriate.

Dr. Hill's percent of binaural hearing loss is 15.6.
This loss times 175 weeks equals 27.3 weeks. Claimant is
entitled to 27.3 weeks of permanent disability benefits at
the rate of $314.10 per week.

ORDER

THEREFORE, IT IS ORDERED:

That defendant pay to claimant twenty-seven point three
(27.3) weeks of occupational hearing loss compensation at
the stipulated rate of three hundred fourteen and 10/100
dollars ($314.10) per week in the total amount of eight
thousand four hundred sixty-five and 73/100 dollars
($8,465.73) commencing on March 31, 1988, as stipulated to
by the parties.

That all accrued benefits are to be paid in a lump sum.

That interest will accrue pursuant to Iowa Code section
85.30.

Page 6

That the costs of this action be assessed to defendant
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 November, 1992.

______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER

Copies to:

Mr. Robert Fulton
Attorney at Law
First National Bldg - 6th Floor
E 4th and Sycamore
PO Box 2634
Waterloo, Iowa 50703-2634

Mr. John Rathert
Attorney at Law
PO Box 178
Waterloo, Iowa 50704-0178

1108.50 1401 2208 1808
Filed November 3, 1992
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________

PAUL E. FAGENBAUM,

Claimant, File No. 954362

vs.
A R B I T R A T I O N
JOHN DEERE WATERLOO WORKS,
D E C I S I O N
Employer,
Self-Insured,
Defendant.
___________________________________________________________

1108.50 1401 2208
Claimant proved an occupational hearing loss by his
testimony, testimony of other retired employees, noise level
surveys and tests conducted at employer's plant over several
years, audiograms that showed a general increase in loss of
hearing and specialists who stated that his loss was
bilateral and sensorineural. Claimant worked for 29 years
in high noise levels exceeding 90 decibels, 8 hours per day,
five days per week.

1808
Pursuant to Iowa Code section 85B.9, if more than one
audiogram is taken following this notice of an occupational
hearing loss claim, the audiogram having the lowest
threshold was used to calculate claimant's occupational
hearing loss.
Claimant was awarded 27.3 weeks (175 wks x 15.6 %) of
occupational hearing loss compensation at the stipulated
rate of $314.10 per week, in the total amount of $8,465.73.

Page 1

before the iowa industrial commissioner
____________________________________________________________
:
CAROL COLLINS, :
f/k/a CAROL WILLIS, :
:
Claimant, : File Nos. 916241
: 954364
vs. :
: A R B I T R A T I O N
DEPARTMENT OF HUMAN SERVICES, :
: D E C I S I O N
Employer, :
:
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________

statement of the case

These are proceedings in arbitration upon the petition
of claimant, Carol Collins, against her employer, Department
of Human Services, and State of Iowa, defendant. The case
was heard on November 13, 1991, in Des Moines, Iowa. The
record consists of the testimony of claimant, the testimony
of Jeff Johnson, vocational counselor, and the testimonies
of Mickey Love, Dave Morris, and Johanna Dippold.
Additionally, the record consists of claimant's exhibits 1
through 11, and defendant's exhibits A through F.

issues

The issues to be determined are: 1) whether claimant
is entitled to temporary or permanent benefits; and, 2)
whether claimant is entitled to medical benefits pursuant to
section 85.27.

findings of fact

The deputy, having heard the testimony and considered
all the evidence, finds:

Claimant is 39 years old. She is married and has four
children. Claimant received her GED in 1976. Afterwards,
claimant attended a 6- to 8-month key punch course in
California. Then, she became employed in the key punch
area. She held various positions in the area of key punch
and data entry. The positions were all in California.

In 1986, claimant moved to Iowa. She again became
employed in the area of data entry. In May of 1987,
claimant commenced her employment with the State of Iowa.
She was hired as a system support worker. Her duties

Page 2

included data entry, filing microfilm, flipping papers,
opening and delivering mail, and answering the phone.

In 1989, claimant began experiencing difficulties with
her left hand and wrist. She sought treatment from Lawrence
Valin, M.D., her family physician. Dr. Valin referred
claimant to Robert F. Breedlove, M.D., an orthopedic
specialist.

Dr. Breedlove diagnosed claimant's condition as:

1. Left carpal tunnel syndrome with compression
neuropathy of the ulnar nerve at Guyon's Canal.

2. DeQuervain's disease of the left wrist.

Dr. Breedlove treated claimant conservatively; however,
conservative treatment was unsuccessful. As a consequence,
Dr. Breedlove performed a carpal tunnel release, a
deQuervain's release, and he excised a ganglion cyst from
the left hand. Following the surgery, claimant developed
reflex sympathetic dystrophy. Dr. Breedlove released
claimant to return to work on June 26, 1989, for four hours
per day with no data entry.

As of August 30, 1989, claimant was released to return
to work with normal activity. She began using her right
hand. Later, she experienced difficulties with her right
wrist and hand. Her right hand began to swell and she had
pain. In February of 1990, Dr. Breedlove diagnosed
claimant's condition as right carpal tunnel syndrome and
reflex sympathetic dystrophy of the left upper extremity.

On March 14, 1990, Dr. Breedlove performed a right
carpal tunnel release. Dr. Breedlove opined claimant's
prognosis was guarded. Claimant experienced numbness and
pain. She was placed in a pain management program where she
received medication and therapy. Claimant also began
psychological counseling.

Dr. Breedlove rated claimant as having a 20 percent
impairment to each hand. He opined everything possible had
been done for claimant as of June 18, 1991.

James W. Dennert, M.D., testified by way of deposition.
Dr. Dennert practices psychiatry in Des Moines. He first
saw claimant in July of 1991. He treated claimant for
chronic dysthymic disorder. In his testimony, Dr. Dennert
causally related claimant's depressive symptoms to
claimant's hands. Dr. Dennert testified:

. . . and I have seen in just the time I've seen
her that when her hands are bothering her more,
she definitely has an increase in her symptoms.
When her hands are bothering her less, her
symptoms improve.

(Exhibit 9, page 11, lines 14-17).

Page 3

As far as claimant's psychiatric condition was
concerned, Dr. Dennert opined that:

A. Well, the chronic dysthymia is a chronic
condition which does somewhat wax and wane. The
complicating factor here, of course, is the
apparently chronic condition leading to pain in
her hands. From what I gather from the history
from seeing Ms. Collins, I do not see any change,
any significant change, in her course for the
foreseeable future. As far as I can see, I would
expect that we would continue to be dealing with
the same sorts of problems and continue to need to
treat both the pain and the depressive symptoms.

(Exhibit 9, page 14, lines 2-13).

Later in his deposition, Dr. Dennert testified that:

A. I don't know. It varies, and there's -- there
isn't any periodicity to it. It's not like she's
off a month, on a month. It waxes and wanes, is
not a regular cycle. It clearly relates to a very
large extent to the pain that she's having in her
hands. And that apparently relates to how much
she uses them as well as, you know, how cold it
is, and things like that.

(Exhibit 9, page 22, lines 17-24).

Dr. Dennert also testified that, from a psychiatric
viewpoint, claimant was capable of working when she was not
having any acute period of depression. Additionally, Dr.
Dennert testified he was treating claimant for the
psychological sequelae of her pain problems. (Exhibit 9,
page 40, lines 14-18).

At the time of the hearing, claimant was not actively
employed. There were no openings available to her with the
Department of Human Services, or with other divisions of the
State. Claimant spent much of her day resting, keeping
house, or playing bingo.

conclusions of law

The first issue to be addressed is whether claimant has
sustained an occupational disease as a result of her
employment with defendant, and therefore would entitle
claimant to industrial disability benefits pursuant to Iowa
Code chapter 85A.

Section 85A.8 of The Iowa Code defines occupational
disease. The section states that:

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

Page 4

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.

To prove the causation element described in section
85A.8, claimant must show by a preponderance of the evidence
(1) the disease is causally related to the exposure to the
harmful conditions of the field of employment, and (2) the
harmful conditions must be more prevalent in the employment
concerned than in everyday life or in other occupations.
Siefkas v. Furnas Electric Co., File No. 944404
(Arbitration Decision, November 12, 1991), appeal filed
November 21, 1991 (citing McSpadden v. Big Ben Coal Co., 288
N.W.2d 181 (Iowa 1980)); Frit Indus. v. Langenwalter, 443
N.W.2d 88 (Iowa App. 1989).

According to the deputy industrial commissioner writing
Siefkas, File No. 944404, slip op. at 5:

Although McSpadden might be read as eliminating
the arising out of and in the course of
requirements, the statute clearly retains those
elements. Perhaps the intent of the opinion in
McSpadden is to emphasize the peculiar aspects of
occupational disease. Lawyer & Higgs, Iowa
Workers' Compensation -- Law and Practice, Chapter
18, sections 1-3.

It is conceivable that repetitive motion
disorders may constitute either an injury or an
occupational disease depending upon the particular
facts in the case. Accordingly, determinations as
to what constitutes an occupational disease must
be made on a case-by-case basis.

With respect to compensation for occupational disease,
section 85A.14 provides that:

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.

In Peters v. Lamoni Auto Assemblies, Inc., File No.

Page 5

809203 (Appeal Decision, March 31, 1989), aff'd district
court October 6, 1989, then Industrial Commissioner David E.
Linquist held that claimant did not sustain her burden of
proof that her left carpal tunnel syndrome was an
occupational disease. Commissioner Linquist also determined
that, since claimant was entitled to benefits under chapter
85, she was not entitled to benefits pursuant to section
85A.14.

In the case before this deputy, the record clearly
demonstrates that claimant has been diagnosed with bilateral
carpal tunnel syndrome. Claimant testified she had no
problems with her hands and wrists prior to her employment
with the State in May of 1987. She alleged no specific
trauma or injury. She testified her symptoms gradually
worsened. Claimant testified she was required to perform
data entry duties. Dr. Breedlove, the treating physician,
related the carpal tunnel syndrome to claimant's keying
duties.

Claimant has the burden of proof. She has demonstrated
that her injury arose out of and in the course of her
employment. Defendant does not dispute the arising out of
and in the course of employment factor.

With respect to the existence of an occupational
disease, there must be a direct causal connection with the
employment following as a natural incident from an injurious
exposure occasioned by the nature of the work. Such
condition must be incidental to the character of the
business, occupation or process in which claimant was
employed and not independent of the employment. It need not
have been foreseen or expected, but after its contraction,
it must appear to have its origin in a risk connected with
the employment and to have resulted from that source as an
incident and rational consequence. Iowa Code section 85A.8.

To satisfy the requirements of an occupational disease,
the Iowa Supreme Court in McSpadden, 288 N.W.2d 181, stated
that claimant must meet two basic requirements. Firstly,
claimant must demonstrate that the disease is causally
related to the exposure to harmful conditions in the
employment arena in which claimant is engaged. Secondly,
claimant must establish that the harmful conditions are more
prevalent in the employment sector than in everyday life or
in other occupations.

Page 6

Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).

Dr. Breedlove causally related claimant's bilateral
carpal tunnel syndrome to harmful conditions in the
employment arena. The treating orthopedic surgeon
testified:

A. Yes. I think that she has a -- developed
bilateral carpal tunnel syndrome as a result of
overuse with her keying at her work place. The
left one occurred initially, and she was back to
work. She seemed to do reasonably well, and then
it recurred, and she developed the reflex
sympathetic dystrophy. When she came back
postoperatively from her left and started to
develop her right, she had been back to work and
then developed the carpal tunnel syndrome.

(Exhibit 1(b), page 24, lines 14-23).

Dr. Breedlove also testified the harmful conditions in
the work place are more prevalent in the employment sector
than in everyday life or in other occupations. In his
deposition, he opined:

Q. Well, let me rephrase it in perhaps a
different way.

Is there anything in her history, in her personal
life or history to which you could attribute the
development of her carpal tunnel syndrome aside
from her work at the State of Iowa?

A. She had one episode -- I think it was New
Year's Day of '90 or '89 or something where she
was cleaning chitlins and developed some numbness
and tingling in her hand and increased pain. That
was a one-time episode that she related to me.

Other than that, she was doing some housework and
cleaning at one point that she mentioned in the
history, but I think these are activities -- daily
activities of normal living, and they could cause
a carpal tunnel syndrome, but I don't see many
patients that perform those simple tasks that come
in with carpal tunnel syndrome.

(Exhibit 1(b), page 28, lines 4-24).

Dr. Breedlove also testified that:

Q. Well, first of all, you indicated that you
have done some workers' compensation work. Do you
have experience in treating repetitive motion
disorders aside from this particular case?

A. Yes.

Page 7

Q. In your experience, were the keying duties
that were required of her by her employment more
prevalent than in other occupations?

A. I've seen a fair number of patients with
carpal tunnel syndrome whose job is to key, key
entry information. It's common in typists and
transcriptionists, computer operators, but keying
seems to be an occupation that requires more rapid
repetitive motion, but it's an occupation where I
think that there's a fairly high incidence of
carpal tunnel syndrome with keying.

(Exhibit 1(b), page 29, lines 5-23).

Claimant has established the existence of the two
requirements detailed in McSpadden. Claimant has proven
that her bilateral carpal tunnel syndrome is an occupational
disease.

The next issue to address is the issue dealing with
compensation. Section 85A.14 restricts compensation when
compensation is recoverable on account of injury under the
workers' compensation law. As in the Peters case, claimant
is not entitled to compensation benefits under chapter 85A.
Claimant is entitled to benefits pursuant to chapter 85.
Specifically, claimant is entitled to benefits pursuant to
section 85.34(l). The section states: "For the loss of a
hand, weekly compensation during one hundred ninety weeks."

In the case before this deputy, claimant has sustained
two injuries because of cumulative trauma. A personal
injury contemplated by the workers' compensation law means
an injury, the impairment of health or a disease resulting
from an injury which comes about, not throo separate occupational diseases to scheduled members.
The benefits under section 85.34 contemplate compensation
for any effect on the claimant's earning capacity caused by
psychological problems stemming from an injury to a
scheduled member. Pilcher v. Penick & Ford, File No. 618597
(App. Decn., October 21, 1987). While psychological
problems affect a loss of earning capacity, the scheduled
loss system which has been created by the legislature is
presumed to include compensation for reduced capacity to
labor and to earn. Schell v. Cent. Eng'g Co., 232 Iowa 421,
4 N.W.2d 399 (1942). In other words, the psychological
aspect is built into the scheduled member loss system.

With respect to file number 916241, claimant is
entitled to a 20 percent permanent partial disability to the
left hand. The commencement date for the benefits is
January 12, 1990, the date on which Dr. Breedlove determined
claimant had a permanent impairment to the left hand. At
that point, claimant had reached maximum medical
improvement.

With respect to file number 954364, claimant is
entitled to a 20 percent permanent partial disability as of
June 18, 1991, when Dr. Breedlove opined there would be no
additional improvements to claimant's right hand.

As far as the issues of healing period benefits are
concerned, claimant is entitled to benefits pursuant to
section 85.34(1). Section 85.34(1) provides that healing
period benefits are payable to an injured worker who has
suffered permanent partial disability until (1) the worker
has returned to work; (2) the worker is medically capable of
returning to substantially similar employment; or (3) the
worker has achieved maximum medical recovery. The healing
period can be considered the period during which there is a
reasonable expectation of improvement of the disabling
condition. See Armstrong Tire & Rubber Co. v. Kubli, 312
N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can
be interrupted or intermittent. Teel v. McCord, 394 N.W.2d
405 (Iowa 1986).

For file number 916241, claimant is entitled to healing
period benefits for the following dates:

05-10-89 through 06-22-89 6.429 weeks
09-22-89 .143 weeks
10-04-89 through 10-06-89 .429 weeks
10-19-89 through 10-20-89 .286 weeks
10-24-89 through 01-11-90 11.429 weeks
Total healing period 18.714 weeks

Page 9

For file number 954364, claimant is entitled to healing
period benefits from:

02-01-90 through 06-18-91 71.857 weeks

For file number 916241, claimant is entitled to 11
weeks of temporary partial disability benefits in the sum of
$1,142.94.

The next issue to address is whether claimant is
entitled to medical benefits pursuant to section 85.27. The
section provides that the employer shall furnish reasonable
surgical, medical, dental, osteopathic, chiropractic,
podiatric, physical rehabilitation, nursing, ambulance and
hospital services and supplies for all conditions
compensable under the workers' compensation law. The
employer shall also allow reasonable and necessary
transportation expenses incurred for those services. The
employer has the right to choose the provider of care,
except where the employer has denied liability for the
injury. Section 85.27.; Holbert v. Townsend Engineering
Co., Thirty-second Biennial Report of the Industrial
Commissioner 78 (Review-reopen 1975). Claimant has the
burden of proving that the fees charged for such services
are reasonable. Anderson v. High Rise Constr. Specialists,
Inc., File No. 850096 (App. 1990).

Claimant is not entitled to reimbursement for medical
bills unless claimant shows they were paid from claimant's
funds. See Caylor v. Employers Mut. Casualty Co., 337
N.W.2d 890 (Iowa Ct. App. 1983).

The authorized treating physician recommended a pain
management program for claimant. [Exhibit 1(a), page 26].
Defendant refused to authorize the program, despite the
treating physician's recommendation. Defendant is liable
for expenses incurred because of defendant's refusal to
follow the recommendations of the treating physician.
Defendant will reimburse the sick and accident insurance
carrier, as well as claimant, for any charges which were
paid.

The final issue to address is whether defendant is
entitled to a credit for benefits paid pursuant to section
85.38(2). As indicated by exhibit 11(c), commencing March
9, 1990, claimant received $60.00 each month representing a
minimum income benefit. The $955.41 figure is the
claimant's net receipt of this $60.00 monthly payment for a
period of 16 months.

This minimum amount took into consideration claimant's
receipt of $802.79 each month in workers' compensation
benefits ($185.26 x 4.33 weeks). Thus, it is clear that
this benefit is paid regardless of the fact that claimant is
receiving workers' compensation benefits.

Section 85.38(2) provides that the credit provided for
by statute does not apply to payments made under any group

Page 10

plan which would have been payable even though there was an
injury under this chapter or an occupational disease under
chapter 85A. Therefore, the State is not entitled to a
credit as the benefits received by claimant are paid
regardless of whether the condition is work related. See
Hebensperger v. Motorola Communications and Electronics,
Inc., II Iowa Industrial Commissioner Report 187, 189 (App.
Decn. 1981).

order

THEREFORE, IT IS ORDERED:

With respect to file number 916241, defendant shall pay
unto claimant weekly benefits for thirty-eight (38) weeks of
permanent partial disability benefits commencing on January
12, 1990, at the stipulated rate of one hundred eighty-five
and 26/100 dollars ($185.26) per week.

With respect to file number 916241, defendant shall pay
unto claimant healing period benefits for eighteen point
seven one four (18.714) weeks at the stipulated rate of one
hundred eighty-five and 26/100 dollars ($185.26) per week
payable commencing May 10, 1989.

With respect to file number 916241, defendant shall pay
unto claimant temporary partial disability benefits in the
total sum of one thousand one hundred forty-two and 94/100
dollars ($1,142.94).

With respect to file number 954364, defendant shall pay
unto claimant weekly benefits for thirty-eight (38) weeks of
permanent partial disability benefits commencing on June 19,
1991, at the stipulated rate of one hundred eighty-five and
26/100 dollars ($185.26) per week.

With respect to file number 954364, defendant shall pay
unto claimant healing period benefits for seventy-one point
eight five seven (71.857) weeks at the stipulated rate of
one hundred eighty-five and 26/100 dollars ($185.26) per
week payable commencing February 1, 1990.

With respect to file number 954364, defendant is liable
for unpaid medical expenses which are causally related to
claimant's hands.

Defendant shall take credit for one hundred thirteen
point eight five seven (113.857) weeks of benefits
previously paid at the one hundred eighty-five and 26/100
dollars ($185.26) per week rate.

Defendant shall take credit for temporary partial
disability benefits in the sum of one thousand one hundred
forty-two and 94/100 dollars ($1,142.94).

Costs are taxed to defendant pursuant to rule 343 IAC
4.33.

Page 11

Defendant shall file a claim activity report as
requested by this division pursuant to rule 343 IAC 3.1.

With respect to file number 954364, defendant is
ordered to file a first report of injury within thirty (30)
days of the filing of this decision.

Signed and filed this ______ day of ____________, 1991.

______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER

Copies To:

Mr. Steven C. Jayne
Attorney at Law
5835 Grand Avenue
Suite 201
Des Moines, Iowa 50312

Ms. Joanne Moeller
Assistant Attorney General
Tort Claims Division
Hoover State Office Building
Des Moines, Iowa 50319

1108.40; 1803.1; 2203
Filed December 19, 1991
MICHELLE A. MCGOVERN
before the iowa industrial commissioner
____________________________________________________________
:
CAROL COLLINS, :
f/k/a CAROL WILLIS, :
:
Claimant, : File Nos. 916241
: 954364
vs. :
: A R B I T R A T I O N
DEPARTMENT OF HUMAN SERVICES, :
: D E C I S I O N
Employer, :
:
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________

1108.40; 1803.1; 2203
Claimant was able to prove by a preponderance of the
evidence that she sustained two separate occupational
diseases to her hands. Claimant was compensated as two
scheduled members pursuant to section 85A.14 and section
85.34(1).

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
BERNARD L. STROUP,

Claimant, File No. 954381

vs. A P P E A L

ROY AND SANDRA RENO, D E C I S I O N

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 November 15, 1991 is affirmed and is adopted as the
final agency action in this case.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of September, 1992.

________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER

Copies To:

Mr. Robert W. Pratt
Mr. Max Schott
Attorneys at Law
6959 University Ave.
Des Moines, Iowa 50311

Mr. Charles E. Cutler
Attorney at Law
729 Insurance Exchange Bldg.
Des Moines, Iowa 50309

9998
Filed September 30, 1992
Byron K. Orton

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
BERNARD L. STROUP,

Claimant, File No. 954381

vs. A P P E A L

ROY AND SANDRA RENO, D E C I S I O N

Employer,
Defendant.
____________________________________________________________

9998

Summary affirmance of deputy's decision filed November
15, 1991.

Page 1

before the iowa industrial commissioner
____________________________________________________________
:
BERNARD L. STROUP, :
:
Claimant, : File No. 954381
:
vs. : A R B I T R A T I O N
:
ROY AND SANDRA RENO, : D E C I S I O N
:
Employer, :
Defendant. :
____________________________________________________________

statement of the case

Claimant, Bernard L. Stroup, filed a petition in
arbitration against defendant uninsured employers, Roy Reno
and Sandra Reno, after he sustained a work injury to the
left leg on March 11, 1989. He now seeks benefits under the
Iowa Workers' Compensation Act.

This cause came on for hearing in Des Moines, Iowa, on
October 31, 1991. The record consists of joint exhibits 1
through 43 and the testimony of claimant and Roy Reno.

On November 7, 1991, claimant filed a "Petition" to
delay this decision. That petition, treated herein as a
motion, was predicated upon the theory that this decision
would be favorable to claimant, thereby creating a potential
election of remedies problem with respect to concurrent
litigation now before the Iowa Supreme Court. This decision
is not favorable to claimant, so that problem does not
exist. The "Petition" to delay reaching a decision should
be and is hereby overruled.

issues

The parties have stipulated that claimant sustained an
injury arising out of and in the course of his employment on
March 11, 1989, that the injury caused temporary disability
(from March 11 through June 7) and permanent disability to
the left arm, and that medical benefits are no longer in
dispute.

Issues presented for resolution include:

1. The extent of permanent disability;

2. The rate of compensation; and,

3. Whether the action is barred by the equitable
doctrine of election of remedies or by statutory
construction of Iowa Code section 87.21.

findings of fact

Page 2

The undersigned deputy industrial commissioner finds:

Bernard L. Stroup was employed as a farm worker by Roy
and Sandra Reno on March 11, 1989. The Renos, in violation
of Iowa Code section 87.1, failed to carry workers'
compensation liability insurance.

Claimant was injured when he attempted to "hot wire" a
tractor without an ignition key. As a result, he suffered
permanent disability to the left wrist.

Proceeding specifically under Iowa Code section 87.21,
claimant thereupon filed an action for tort damages in the
District Court for Wayne County and the cause proceeded to
trial before a jury. A verdict was rendered on October 4,
1990, in favor of defendants. Claimant has filed an appeal
to the Iowa Supreme Court where the matter is now pending.

On November 19, 1990, claimant filed a petition in
arbitration seeking workers' compensation benefits.

conclusions of law

Iowa Code section 87.21 provides, in pertinent part:

Any employer, except an employer with respect to
an exempt employee under section 85.1, who has
failed to insure the employer's liability in one
of the ways provided in this chapter, unless
relieved from carrying such insurance as provided
in section 87.11, is liable to an employee for a
personal injury in the course of and arising out
of the employment, and the employee may enforce
the liability by an action at law for damages, or
may collect compensation as provided in chapters
85, 85A, 85B, and 86. . . .

(Emphasis supplied.)

At hearing, this deputy indicated that statutory
construction and election of remedies were essentially
identical issues. He now believes otherwise. Election of
remedies is an equitable doctrine; one that is to be applied
narrowly and is not favored by the courts. Gourley v.
Nielson, 318 N.W.2d 160 (Iowa 1982); Bolinger v. Kiburz, 270
N.W.2d 603 (Iowa 1978).

It is unnecessary to determine whether the equitable
doctrine of election of remedies is applicable in this case.
The statute itself sets up an election. The employee may
enforce liability by an action at law for damages or may
collect compensation under the Iowa Workers' Compensation
Act. In construing the word "or," one must look to Iowa
Code section 4.1(2), which provides that, in the
construction of statutes, "words and phrases shall be
construed according to the context and approved usage of
language."

Page 3

Quoting from the earlier decision of Caster v.
McClellan, 132 Iowa 502, 109 N.W. 1020 (1906), the Iowa
court, while interpreting an insurance contract in Bates v.
United Sec. Ins. Co., 163 N.W.2d 390 (Iowa 1968) noted:
[T]he word [or] shall be given its natural and ordinary
meaning as a disjunctive participle. * * * The word `or'
marks an alternative and generally corresponds in meaning to
the word `either'. It signifies that one of two things may
be done, but not both.

Giving the word "or" a normal construction according to
the context of the statute, no further construction is
necessary. It is not the prerogative of the agency to enact
legislation. The legislature has done so and has done so in
this case without ambiguity. Given an uninsured employer,
claimant had two alternatives and could do either, but not
both, Bates, at 398. Having elected to seek damages at
tort, he is foreclosed from seeking compensation under the
Workers' Compensation Act.

order

THEREFORE, IT IS ORDERED:

Claimant shall take nothing from this proceeding.

The costs of this action are assessed to claimant
pursuant to rule 343 IAC 4.33.

Signed and filed this ______ day of ____________, 1991.

______________________________
DAVID RASEY
DEPUTY INDUSTRIAL COMMISSIONER

Copies To:

Mr. Robert W. Pratt
Mr. Max Schott
Attorney at Law
6959 University Avenue
Des Moines, Iowa 50311

Mr. Charles E. Cutler
Attorney at Law
729 Insurance Exchange Building
Des Moines, Iowa 50309

1600; 2100
Filed November 15, 1991
DAVID RASEY
before the iowa industrial commissioner
____________________________________________________________
:
BERNARD L. STROUP, :
:
Claimant, : File No. 954381
:
vs. : A R B I T R A T I O N
:
ROY AND SANDRA RENO, : D E C I S I O N
:
Employer, :
Defendant. :
____________________________________________________________

1600; 2100
Claimant was injured while working for uninsured employer--a
scheduled member injury. He sought tort damages in district
court under Iowa Code section 87.21, but a jury verdict was
rendered for defendant. Claimant then filed his petition
before the agency.
HELD: Section 87.21 sets up a statutory election distinct
from the equitable defense of election of remedies.
Claimant may seek tort damages or collect compensation under
the Act, but not both. Having elected to seek tort damages,
he is foreclosed from seeking relief before this agency.

Page 1

before the iowa industrial commissioner
____________________________________________________________
:
RONALD CASTLE, :
:
Claimant, :
:
vs. :
: File No. 954406
CARSTENSEN FREIGHT LINES, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________

statement of the case

This is a proceeding in arbitration brought by Ronald
Castle against his former employer and its insurance carrier
based upon an alleged injury of August 10, 1989. Castle
seeks compensation for temporary partial disability, healing
period and permanent partial disability.

The case was heard at Davenport, Iowa, on October 29,
1991. The record in the case consists of jointly offered
exhibits 1 through 12, deputy exhibit A and testimony from
Ronald Castle, Richard Castle, Ronald Bloom and Larry Morey.

findings of fact

Having considered all the evidence received, together
with the appearance and demeanor of the witnesses, the
following findings of fact are made.

Ronald Castle is a 33-year-old married man who lives at
Muscatine, Iowa. He is a 1976 high school graduate. He has
worked primarily in the trucking industry as a dock worker,
dock foreman, driver and terminal manager. He has performed
sales and customer relations work in some of those
positions. For approximately two and one-half years after
high school, he worked for Muscatine Produce. He drove a
bulk livestock feed truck. He sold feed and seed corn. His
duties included billing customers and figuring their
accounts.

Ronald commenced work with Carstensen Freight Lines in
early 1988. Initially, he drove a semi making local
deliveries. The job included loading and unloading. In
early 1989, he bid into an over-the-road driving position.
Ronald denied having any problems with his neck, back or
arms or any symptoms of numbness or tingling in his

Page 2

extremities prior to the time that he began driving over the
road for Carstensen. In July or August of 1989, Ronald
began noticing numbness and tingling in his left hand. He
sought treatment from Leo Kulick, M.D., who initially
believed the condition to be an overuse syndrome affecting
his wrist (exhibit 1, page 1; exhibit 2). The condition was
later determined to be related to degenerative changes in
Ronald's cervical spine. EMG/NCV tests failed to show any
significant abnormalities.

After reporting his problems to his employer, Ronald
ceased performing over-the-road driving and was placed in a
job where he performed dock work and some local driving.
Ronald worked the midnight shift. At approximately the same
point in time, late 1989 through early 1990, he operated his
own trucking business. Ronald continued working for
Carstensen until July 10, 1990, when he was reassigned from
the midnight shift to the third shift which started at 4:30
p.m. At that time, he told Ronald Bloom, his supervisor,
that he was going on workers' compensation. In early 1991,
Ronald applied for other positions with Carstensen, but none
were made available to him.

The extent of Ronald's work in his own trucking company
and in a trucking company operated by his father is not well
defined by the evidence in the case. Testimony presented by
Ronald conflicts in some material ways with testimony on the
same subjects which was presented by his father. There is
evidence from Larry Morey to the effect that Ronald
performed regular office duties and kept somewhat regular
office hours in the trucking business. Morey also related
observing Ronald drive trucks for his father at times when
Ronald denied driving.

Ronald's medical treatment passed to James B. Worrell,
M.D., a neurologist. Dr. Worrell has characterized
claimant's condition as a myofascial syndrome involving his
neck and left upper extremity. Diagnostic tests have shown
degeneration in claimant's cervical spine but no disc
herniation. Claimant has been diagnosed as having a
bilateral C7, C8 radiculopathy which is possibly related to
a chronic myofascial injury and lower brachioplexus stretch.
Dr. Worrell has recommended that claimant not resume his
usual employment of truck driving as it would aggravate his
condition (exhibit 11, pages 2 and 3). Dr. Worrell assigned
a six percent permanent impairment rating and further stated
that, as of January 1, 1991, he believed that claimant would
not make further improvement in his condition (exhibit 11,
page 5).

On November 7, 1989, claimant was evaluated by William
Dougherty, M.D. Dr. Dougherty felt that claimant had mild
cervical degenerative arthritis and possibly ulnar nerve
compression at the left elbow. He recommended a myelogram
(exhibit 5).

There is no evidence in the record of this case which

Page 3

clearly relates the condition of this claimant's cervical
spine to his employment, other than indicating that work as
a truck driver would exacerbate the symptoms. There is no
evidence that his work as an over-the-road truck driver
caused the cervical condition to develop or permanently
aggravated that condition. To the contrary, it appears as
though the treatment Ronald received from Dr. Kulick
provided relief of the symptoms which were most troubling
and which led him to seek medical care (exhibit 1, page 5).
It was at that time that Dr. Kulick indicated claimant could
continue working full time but should minimize his truck
driving activities. The office note is dated November 17,
1989. Dr. Worrell then became involved in claimant's
treatment. It is noted that Dr. Worrell's records seem to
indicate that he was of the understanding that claimant was
continuing to work as a truck driver rather than the dock
work which was actually his primary activity at that time
(exhibits 7 and 8). It was on January 10, 1991, six months
after claimant had left his employment with Carstensen, that
Dr. Worrell issued a letter which he indicated should be
taken to claimant's employer. In that letter, Dr. Worrell
stated that claimant should not operate trucks, heavy
machinery or perform heavy labor. He did release claimant
to perform office work (exhibit 11, page 4). It is noted
that it was not until September 6, 1990, two months after
claimant left the employment, that Dr. Worrell first
indicated that claimant should not pursue his usual
employment (exhibit 11, page 2).

It is found that Ronald Castle had a degenerative
condition in his cervical spine which preexisted his work as
an over-the-road driver for Carstensen Freight Lines. The
work as an over-the-road driver aggravated that condition
causing Ronald to develop symptoms in his neck and left arm
as well as headaches. Ronald then sought treatment from Dr.
Kulick and ceased performing work as an over-the-road
driver. By November 17, 1989, claimant's symptoms had
improved considerably, though not completely. Claimant
continued to work for Carstensen Freight Lines until July
10, 1990, when he chose to leave after being moved from the
shift which started at midnight to the shift which started
at 4:30 p.m. During much of this same time, Ronald was also
involved in his own trucking operation.

The record of this case contains a considerable amount
of conflicting evidence between testimony presented by
Ronald Castle and testimony presented by Richard Castle,
Ronald's father. There is likewise conflicting testimony
between the Castles and Larry Morey. A great deal of this
case is dependent upon the weight given to the claimant's
subjective symptoms. There is objective evidence of an
abnormality in claimant's cervical spine which can provide a
physiological basis for his symptoms. There is no evidence,
however, which connects that objectively found abnormality

Page 4

to this claimant's employment with Carstensen Freight Lines
other than as an aggravation of the condition. A great deal
of the outcome in this case is dependent to a large degree
upon the weight given to Ronald's testimony. His
credibility has been impaired by the conflicting evidence in
the case, particularly where his testimony conflicts with
that of his father in regard to their own trucking company
operations.

It is therefore found that claimant's work as a truck
driver aggravated a preexisting degenerative condition in
Ronald's cervical spine and produced the symptoms in his
left arm for which he sought medical treatment from Dr.
Kulick. That aggravation is found to be only temporary and
to have resolved by November 17, 1989. Claimant has a
condition which is susceptible to aggravation by driving and
heavy labor. As long as he performs those activities, he
will likely have symptoms. It is found that the aggravation
was not permanent.

conclusions of law

Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on or about
August 10, 1989, which arose out of and in the course of his
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904
(Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154
N.W.2d 128 (1967).

An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).

Aggravation of a preexisting condition is one form of
compensable injury. 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 (1962).

It is determined that Ronald Castle did sustain an
injury which arose out of and in the course of his
employment on or about August 10, 1989.

Since claimant resumed work and was not completely
disabled, he is entitled to recover temporary partial
disability compensation until such time as his recovery from
the injury was completed. In paragraph 6 of the prehearing
report, there appears to be a stipulation that the rate of
compensatt ha

Page 6

rule 343 IAC 3.1.

Signed and filed this ______ day of ____________, 1992.

______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER

Copies To:

Mr. Michael J. Motto
Attorney at Law
1000 Firstar Center
201 West Second Street
Davenport, Iowa 52801

Mr. Elliott R. McDonald, Jr.
Attorney at Law
P.O. Box 2746
Davenport, Iowa 52809

5-1402.40; 5-1801.1
5-2206; 5-3002
Filed January 2, 1992
MICHAEL G. TRIER
before the iowa industrial commissioner
____________________________________________________________
:
RONALD CASTLE, :
:
Claimant, :
:
vs. :
: File No. 954406
CARSTENSEN FREIGHT LINES, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________

5-1402.40; 5-1801.1; 5-2206; 5-3002
Claimant failed to prove that his injury was anything other
than a temporary aggravation of a preexisting condition. He
was awarded temporary partial disability. Since his actual
earnings were not in evidence, the parties were ordered to
pay at the rate which was two-thirds of the difference
between the earnings indicated by the stipulated weekly rate
of compensation for temporary total disability and his
actual earnings.

Page 1

before the iowa industrial commissioner
____________________________________________________________
:
HOWARD CLAYTON, JR., :
:
Claimant, : File No. 954412
:
vs. :
: A R B I T R A T I O N
RESTORE SPECIALTY, :
: D E C I S I O N
Employer, :
Defendant. :
:
___________________________________________________________

statement of the case

This is a case that came on for hearing on July 8,
1991, at Des Moines, Iowa. This is a proceeding in
arbitration wherein claimant seeks compensation for
permanent partial disability benefits as a result of an
occupational hearing loss occurring in February 1, 1989.
The record in the case consists of the testimony of
claimant, and claimant's exhibits 1, 2 and 3.

The defendant did not appear at hearing. Defendant had
not answered claimant's petition and after an order was
issued giving defendant a certain amount of time to file an
answer, defendant still failed to answer and sanctions were
issued. This resulted in an order closing defendant to any
activity or evidence.

Because of the nature of this case and the failure of
defendant to answer and appear, there are no disputed issues
in this case. The issues were stipulated by default. This
matter proceeded on default basis with claimant proceeding
with testimony to establish his entitlement to his claimed
weekly benefits as a result of his work-related injury.

findings of fact

The undersigned deputy having heard the testimony and
considered all the evidence, finds that:

Claimant was an employee with Restore Specialty
beginning in December 1988 until he left his employment on
February 1, 1989. This termination date from his employment
of February 1, 1989 is the date of claimant's work injury.
Claimant's job involved running a pneumatic jackhammer. The
employer furnished Styrofoam earplugs which claimant used.

Claimant said his hearing was good and had no problems
prior to working for defendant. Claimant testified that he
had his hearing tested by Neil Verhoef, an audiologist, as
represented by claimant's exhibits 1 and 3. Claimant's
hearing loss was to his left ear. Claimant said that his
hearing has not improved to the present. He said he
particularly has problems hearing soft voices and a woman's

Page 2

voice. He said he called defendant regarding his hearing
loss and the defendant indicated he would call him later but
defendant has never returned his calls.

Claimant testified his gross wages at the time of his
injury as $240 per week. He testified he was married on
said date but had no dependent children as of February 1,
1989. Claimant's Exhibit 1 shows the particular testing
done by the audiologist and Claimant's Exhibit 3 shows the
worksheet for calculation of the percent of occupational
hearing loss. This exhibit shows claimant had a 2.1666
percent hearing loss, total, binaural.

The undersigned finds that claimant was an employee on
February 1, 1989, at which time he incurred an injury that
arose out of and in the course of his employment with
defendant and that this injury caused claimant to incur
2.1666 percent hearing loss, total, binaural. In claimant's
prehearing report claimant contends he is owed 15 weeks of
permanent partial benefits for a 3 percent loss of hearing.
It appears that the claimant is using the 500 weeks times 3
percent to arrive at 15 weeks, but, in fact, as provided
under 85B.6, maximum compensation, the maximum compensation
for a total occupational hearing loss is 175 weeks.
Additionally, the undersigned cannot determine where
claimant got 3 percent unless he is rounding off the 2.1
percent hearing loss determined by the audiologist.

The undersigned finds that claimant incurred a work-
related occupational hearing loss of 2.1666 percent, total,
binaural, which results in claimant being entitled to 3.79
weeks of compensation at the weekly rate of $159.21.

conclusions of law

Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on February 1,
1989, which arose out of and in the course of his
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904
(Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa
352, 154 N.W.2d 128 (1967).

If the available expert testimony is insufficient alone
to support a finding of causal connection, such testimony
may be coupled with nonexpert testimony to show causation
and be sufficient to sustain an award. Giere v. Aase Haugen
Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).
Such evidence does not, however, compel an award as a matter
of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536
(Iowa 1974). To establish compensability, the injury need
only be a significant factor, not be the only factor causing
the claimed disability. Blacksmith v. All-Amnerican, Inc.,
290 N.W.2d 348, 354 (Iowa 1980).

Page 3

Iowa Code section 85B.6 provides:

Compensation is payable for a maximum of one
hundred seventy-five weeks for total occupational
hearing loss. For partial occupational hearing
loss compensation is payable for a period
proportionate to the relation which the calculated
binaural, both ears, hearing loss bears to one
hundred percent, or total loss of hearing.

It is further concluded:

Claimant's occupational hearing loss is causally
connected to a work-related injury on February 1, 1989.

Claimant incurred a 2.1666 percent hearing loss, total,
binaural, as a result of a February 1, 1989 work-related
injury.

order

THEREFORE, it is ordered:

That claimant is entitled to three point seven nine
(3.7) weeks of permanent partial disability benefits at the
weekly rate of one hundred fifty-nine and 21/100 dollars
($159.21), beginning February 1, 1989.

That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. The record indicates
defendant has paid no previous benefits of any kind or
nature.

That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.

That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.

That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.

Signed and filed this ____ day of July, 1991.

______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER

Copies to:

Mr A Zane Blessum
Attorney at Law
113 N John Wayne Dr
Winterset IA 50273

Restore Specialty
Box 1745

Page 4

Minnetonka MN 55534
CERTIFIED & REGULAR MAIL

5-2208
Filed July 23, 1991
Bernard J. O'Malley

5-2208
Claimant awarded 3.7 weeks of permanent partial disability
benefits for an occupational hearing loss.
Defendant did not show up at hearing. His evidence and
activity was cut off by a prior order.