BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DARLENE JUNGE,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         CENTURY ENGINEERING,                    File Nos. 618141/662314
 
         
 
              Employer,                               A P P E A L
 
         
 
         and
 
                                                    D E C I S I 0 N
 
         
 
         FIREMAN'S FUND INSURANCE
 
         COMPANY, and EMPLOYERS
 
         INSURANCE OF WAUSAU,
 
         
 
             Insurance Carriers,
 
             Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants Century Engineering/Wausau appeals and claimant 
 
         cross-appeals from a proposed consolidated, review-reopening and 
 
         arbitration decision awarding certain medical expenses, costs, 
 
         mileage, 31 3/7 weeks of healing period benefits, and 18 weeks of 
 
         permanent partial disability under Iowa Code section 85.34(2). 
 
         Claimant also appeals from a ruling in this matter filed February 
 
         11, 1986.  As the ruling of February 11, 1986 is an integral part 
 
         of this proceeding, its resolution on appeal can best be 
 
         expedited by consideration at the same time as the main appeal.
 
         
 
              The record on appeal consists of the transcript of the 
 
         consolidated proceeding; claimant's exhibits 1 through 5 and 7 
 
         through 9; defendants' exhibits A through J; and the transcript 
 
         and exhibits of the prior proceeding in file 618141 which are 
 
         contained in the Industrial Commissioner's file.  All parties 
 
         filed briefs on appeal and cross-appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendants Century Engineering/Wausau contend that claimant 
 
         must prove by a preponderance of the evidence a change of 
 
         condition since September 2, 1980 and that this change of 
 
         condition is proximately caused by the industrial injury and not 
 
         to other conditions found not to be related.
 
         
 
              Defendants Century Engineering/Wausau further contend that
 
         
 
         
 
         claimant is not entitled to healing period benefits.
 
         
 

 
         
 
         
 
         
 
         JUNGE V. CENTURY ENGINEERING
 
         Page   2
 
         
 
         
 
              Defendants Century Engineering/Wausau further contend that 
 
         claimant has failed to establish that certain costs and 
 
         expenses incurred by the claimant were the result of an 
 
         employment-related injury.
 
         
 
              Defendant Wausau contends that the costs of this 
 
         consolidated proceeding should be apportioned between the two 
 
         cases.
 
         
 
              Claimant states the issues on cross-appeal as:
 
         
 
              1.  The deputy erred in his rulings of February 25, 1985 and 
 
              March 13, 1985 which denied claimant the opportunity to 
 
              depose John Bickel and obtain documents
 
         
 
              2. The deputy erred in his ruling of July 17, 1985, 
 
              excluding the medical report of Dr. David E. Naden
 
         
 
              3.  The deputy erred in his ruling of July 17, 1985, July 
 
              18, 1985 and August 8, 1985, denying a motion for 
 
              continuance sought by claimant and Century/Fireman's Fund
 
         
 
              4.  The deputy erred in his ruling of September 13, 1985, in 
 
              failing to find claimant sustained an injury to her her 
 
              [sic] body as a whole
 
         
 
              5.  The deputy applied incorrect weekly rates in awarding 
 
              benefits to claimant
 
         
 
              6.  The deputy erred in his September 13, 1985 ruling in the 
 
              expenses awarded for the section 85.39 examination
 
         
 
              7.  The deputy erred in admitting exhibit K (Dr. Coates' 
 
              Deposition of June 11, 1984)
 
         
 
              8.  The deputy erred in his ruling by failing to award 
 
              medical expenses in accordance with section 85.27
 
         
 
              9.  The deputy erred in failing to award claimant the full 
 
              cost of the deposition of Dr. Albert Coates on July 23, 
 
              1984
 
         
 
              10.  The deputy erred in failing to admit claimant's exhibit 
 
              6 (Dr. Naden's Report)
 
         
 
              11.  It was prejudicial error to receive into
 
         
 
         
 
         
 
              evidence respondent's exhibit B ("Medical Report" prepared 
 
              by Attorney John Bickel)
 
         
 
              12.  It was prejudicial error to receive into evidence 
 
              exhibit A (Dr. Pilcher's letter of July 12, 1983)
 
         
 

 
         
 
         
 
         
 
         JUNGE V. CENTURY ENGINEERING
 
         Page   3
 
         
 
         
 
              13.  Errors preserved
 
         
 
              14.  The Deputy Erred In His Ruling of February 11, 1986 
 
              Denying Claimant Expenses Following Respondent Cancellation 
 
              of Dr. Albert Coates Deposition on March 16, 1983.
 
         
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The consolidated review-reopening and arbitration decision 
 
         adequately and accurately reflects the pertinent evidence and it 
 
         will not be reiterated herein.
 
         
 
              Briefly stated, claimant sustained a work-related 
 
         aggravation of a preexisting congenital foot problem for which 
 
         she was awarded temporary total disability benefits but was not 
 
         found to have sustained any permanent disability in an appeal 
 
         decision filed August 18, 1981.  With regard to her congenital 
 
         problems the following findings of fact were made:
 
         
 
              7.  Claimant is predisposed to form callus.
 
              (Coates, page 8-9)
 
         
 
              8.  Claimant has a cavus foot, an unusually high arch, which 
 
              is a congenital condition. (Coates, page 9-10)
 
         
 
              9.  By March 1977, claimant had virtually no pain in her 
 
              left heel. (Coates, page 29)
 
         
 
              10.  The tendency to form callus and the cavus foot are the 
 
              geneses of the claimant's problems. (Coates, page 10)
 
         
 
              11.  The full weight-bearing upon the left foot was a 
 
              probable irritation to her foot problem. (Coates, page 11)
 
         
 
              12.  Dr. Coates saw claimant December 6, 1978 for pain 
 
              between the third and fourth toes caused by a neuroma and 
 
              for a painful bunion. (Coates, page 15-16)
 
         
 
              13.  The neuroma and bunion were not caused by her 
 
              employment.  (Coates, page 16-17)
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              14.  The neuroma was aggravated by the work. (claimant's 
 
              exhibit 8, Coates report 1-2-79)
 
         
 
              15.  Claimant had a bunionectomy, a realignment of the great 
 
              toe and excision of the neuroma. (Coates, 16-17)
 
         
 
              16.  Claimant was treated by Dr. Coates on September 5, 1979 
 
              for a continuation of her left foot problems and also 
 
              treated in December 1979. (Coates, page 19)
 
         
 
              17.  Claimant was hospitalized in January 1980 to correct a 
 

 
         
 
         
 
         
 
         JUNGE V. CENTURY ENGINEERING
 
         Page   4
 
         
 
         
 
              hammertoe condition on the second, third and fourth toes and 
 
              to do an osteotomy of the second metatarsal. (Coates, page 
 
              20)
 
         
 
              18.  The callus under the metatarsal head was aggravated by 
 
              chronic weight-bearing. (Coates, page 20)
 
         
 
              19.  The hammertoes were caused by the cavus foot. (Coates, 
 
              page 20 )
 
         
 
              20.  The major reason for the January 1980 hospitalization 
 
              was to correct the hammertoe conditions. (Coates, page 23)
 
         
 
              21.  The treatment of the plantar callus during the January 
 
              1980 hospitalization was coincidental to the treatment of 
 
              the hammertoes conditions. (Coates, page 23,26)
 
         
 
              22.  The recuperation period after treatment by metatarsal 
 
              osteotomy is two months. (Coates, page 23)
 
         
 
              23.  Claimant has not returned to work since the January 
 
              1980 hospitalization. (Coates, page 23)
 
         
 
              24.  On May 27, 1980, claimant had an oblique osteotomy of 
 
              the third metatarsal and a tendolysis to the left foot. 
 
              (Coates, page 24)
 
         
 
              25.  The necessity for the surgery on May 27, 1980 arose 
 
              subsequent to the January 1980 surgery. (Coates, page 25)
 
         
 
              26.  The surgery of May 1980 was not caused or aggravated by 
 
              the employment but was to correct congenital anomalies. 
 
              (Coates, page 25,26)
 
         
 
         
 
         
 
         
 
         
 
         
 
              In this proceeding-claimant presents evidence concerning a 
 
         subsequent surgery and further time off work.  The surgery which 
 
         was performed on January 19, 1981 by Albert R. Coates, M.D., was 
 
         a p.i.p. fusion of the left great toe.  Prior to this surgery 
 
         claimant had a temporary flare-up of her foot problems on October 
 
         28, 1980.  Dr. Coates subsequently released claimant to return to 
 
         lighter work on October 31, 1981.  He opines that this flare-up 
 
         resulted in no permanent disability or change in her preexisting 
 
         condition.  He also states that the surgery of January 17, 1981 
 
         is not specifically related to her flare-up on October 28, 1980.
 
         
 
              Claimant has also experienced some back problems; however, 
 
         the record does not reflect that these back problems are related 
 
         to claimant's work.  David W. Johnson, D.C., who has examined 
 
         claimant, opines in a medical report dated July 20, 1982 that 
 
         claimant's back problems at that time were the result of physical 
 
         instability from her foot/work-related injury.  However, it 
 
         should be noted that claimant's disability prior to September 2, 
 
         1980 is res judicata as a result of the appeal decision filed 
 
         August 18, 1981.
 

 
         
 
         
 
         
 
         JUNGE V. CENTURY ENGINEERING
 
         Page   5
 
         
 
         
 
         
 
              Finally, claimant states in exhibit 3 that she has been off 
 
         work for a total of 31 weeks and 3 days in 1980, 1981, 1983, and 
 
         1984.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The deputy in the proposed decision stated that claimant 
 
         need not establish a change of condition to recover additional 
 
         disability benefits as the appeal decision filed in this case on 
 
         August 18, 1981 left open the question of whether the claimant 
 
         sustained any permanent impairment or disability.  However, the 
 
         following portions of that decision and the subsequent appeal 
 
         ruling September 28, 1982 clearly indicate that the issue of 
 
         permanent disability was considered in the August 1981 appeal 
 
         decision and it was determined that claimant had not made a 
 
         showing of permanent partial disability related to the work 
 
         injury.
 
         
 
                 Thus, there was an injury which is compensable under the 
 
              Iowa Workers' Compensation Law.  The extent of the 
 
              disability caused by the injury, however, is temporary only 
 
              because there is no showing that claimant's work injury 
 
              prevented her from returning to work after March 1980.  The 
 
              evidence showed two surgeries in 1980, one in January and 
 
              one in May, and most conclusively showed that the May 1980 
 
              surgery was not work-connected and was not the cause of 
 
              claimant's extended disability.
 
         
 
         
 
         
 
         
 
         
 
                 Finally, there was no showing of any permanent partial 
 
              disability which was caused by the work injury.
 
         
 
         (Appeal Decision, August 18, 1981, page 2)
 
         
 
                 The decision of August 18, 1981 conclusively established 
 
              that the claimant's injury, as of September 2, 1980, the 
 
              date of hearing, produced only a disability that was 
 
              temporary.  If the claimant now experiences permanent 
 
              disability or even additional temporary disability as the 
 
              result of industrial injuries previously found, she is able 
 
              to reopen the previous award under Iowa Code section 
 
              85.26(2).
 
         
 
                 It is noted that the extent of claimant's disability 
 
              before September 2, 1980 is res judicata by virtue of the 
 
              August 18, 1981 decision.  It is therefore claimant's burden 
 
              to prove that her condition has changed since September 2, 
 
              1980 and that this change in condition is proximately caused 
 
              by the industrial injury and not to other conditions found 
 
              not to be related.  Insofar as the claimant has not had an 
 
              opportunity to present any evidence as to this contention, a 
 
              genuine issue of fact remains and dismissal is not proper.
 
         
 
         (Ruling on Appeal, September 28, 1982, pp. 2-3)
 
         
 

 
         
 
         
 
         
 
         JUNGE V. CENTURY ENGINEERING
 
         Page   6
 
         
 
         
 
              Therefore, for claimant to. reopen this matter for award of 
 
         additional disability she must first establish a change of 
 
         condition causally related to her industrial injury.
 
         
 
              The record in this case does not show that claimant has 
 
         sustained a change of condition proximately caused by the prior 
 
         industrial injury.  The record shows that although claimant has 
 
         had continuing foot problems, those problems are related solely 
 
         to claimant's congenital foot defects and not her prior work 
 
         aggravation of those congenital defects.  With regard to the 
 
         alleged injury of October 28, 1980, Dr. Coates, claimant's 
 
         treating physician, states the following:
 
         
 
              30 Oct 80: Recheck.  DarleneOs foot has flared up again.   
 
              She was having to do some carrying and lifting at work.  
 
              This is simply over-use on an otherwise abnormal.  There's 
 
              no other treatment other than to get her switched back into 
 
              lighter work and I've given her a work release to that 
 
              effect.
 
         
 
         (Claimant's Exhibit 5, 7-18-85)
 
         
 
         
 
         
 
         
 
         
 
              Dr. Coates further states in a letter dated May 5, 1982 the 
 
         following:
 
         
 
                 A specific question was asked as to the aggravation of 
 
              any permanency secondary to aggravation of her foot 
 
              condition on October 28, 1980.  I saw this patient on 
 
              October 30, 1980 with aggravation of her foot condition 
 
              which I felt was an overuse syndrome from carrying and 
 
              lifting objects at work.  I did not find any specific 
 
              increase in her deformity nor problems at that time and had 
 
              given her a work release as of October 31, 1980 for lighter 
 
              work.  I had placed that work restriction on her on a 
 
              permanent basis because I felt that she did have a chronic 
 
              problem.  She subsequently went on to a p.i.p. fusion of the 
 
              left greater toe which was because of aggravation of her 
 
              pre-existing condition and not specifically related to any 
 
              flareup which she had sustained on the 28th of October, 
 
              1980.  I don't feel that there is any change in her 
 
              permanency nor specific change in her pre-existing condition 
 
              because of her insult on October 28, 1980.
 
         
 
         (Cl. Ex. 5, 7-18-85 )
 
         
 
              The preceding statement when considered with the record as a 
 
         whole indicates that if any injury at all occurred on October 28, 
 
         1980 that injury resulted in temporary disability of a two day 
 
         duration and therefore, it is not compensable.  As claimant has 
 
         shown no new injury or change in condition proximately related to 
 
         her prior work aggravation injury she is not entitled to any 
 
         temporary total disability benefits nor is she entitled to any 
 
         medical expenses.
 
         
 
              Claimant has raised a number of issues on cross-appeal which 
 

 
         
 
         
 
         
 
         JUNGE V. CENTURY ENGINEERING
 
         Page   7
 
         
 
         
 
         will be considered here.  The first concerns a ruling of February 
 
         27, 1985 denying claimant the opportunity to depose defendant 
 
         Century Engineering/Wausau attorney, John Bickel and obtain 
 
         documents.  That ruling correctly found that the information 
 
         sought by claimant was privileged by the work product rule set 
 
         out in Hickman v. Taylor, 329 U.S. 495 (1947).  Claimant argues 
 
         that defendants' exhibit 3 was prepared by John Bickel; however, 
 
         claimant does not deny that exhibit was signed by Dr. Coates.  
 
         Therefore, defendants' exhibit B is the statement of Dr. Coates 
 
         and not Mr. Bickel.  The ruling of February 25, 1985 is 
 
         affirmed.
 
         
 
              Claimant also argues that a ruling of July 17, 1985 
 
         excluding the medical report of David E. Naden, M.D., is in error 
 
         and that the hearing deputy in the July 18, 1985 proceeding also 
 
         erred in failing to admit that report (Cl. Ex. 6)  The ruling of 
 
         July 17, 1985 also denied a motion for continuance sought by 
 
         claimant and Century Engineering/Fireman's Fund which claimant 
 
         also contests on cross-appeal.  With regard to the exclusion the 
 
         medical report of Dr. Naden it is noted that this report was not 
 
         served prior to the prehearing conference as required by Division 
 
         of Industrial Service Rule 343-4.17, formerly Industrial 
 
         Commissioner Rule 500-4.17:
 
         
 
                 Service of doctors' and practitioners' reports.  Each 
 
              party to a contested case shall serve all reports of a 
 
              doctor or practitioner relevant to the contested case 
 
              proceeding in the possession of the party upon each opposing 
 
     
 
         
 
         
 
         
 
         
 
         JUNGE V. CENTURY ENGINEERING
 
         Page   8
 
         
 
         
 
              party.  The service shall be received prior to the time for 
 
              the prehearing' conference.  Notwithstanding 4.14(86), the 
 
              reports need not be filed with the industrial commissioner; 
 
              however, each party shall file a notice that such service 
 
              has been made in the industrial commissioner's office, 
 
              identifying the reports sent by the name of the doctor or 
 
              practitioner and date of report.  Any party failing to 
 
              comply with this provision shall be subject to 4.36(86).
 
         
 
                 This rule is intended to implement sections 86.8 and 
 
              86.18, The Code.
 
         
 
              There was no demonstration of emergency to justify a 
 
         continuance in this case.  Therefore, the ruling of July 17, 1985 
 
         is affirmed.
 
         
 
              Claimant cross-appeals arguments concerning impairment to 
 
         the body as a whole, proper weekly rate, and medical expenses 
 
         under section 85.27 need no further consideration as claimant has 
 
         not shown a change of condition to reopen the award in file 
 
         618141 or a compensable injury for file No. 662314.
 
         
 
              Claimant contests the deputy's award of $216.00 for her 
 
         examination by Dr. Naden pursuant to section 85.39.  Claimant 
 
         argues that she is entitled to an additional $400 for Dr. Naden's 
 
         "legal evaluation" as stated in claimant's exhibit 4.  The record 
 
         shows that this charge is for a four-page medical report by Dr. 
 
         Naden which is excluded from the evidence in this case.  Claimant 
 
         is not entitled to recover costs of medical reports not admitted 
 
         into evidence.
 
         
 
              Claimant further contests the admission of deposition of Dr. 
 
         Coates taken July 11, 1984. (Defendants' Ex. J)  Claimant argues 
 
         that this exhibit should not be admitted because the defendants 
 
         did not give her notice that any witnesses would be called.  
 
         However, this deposition was taken at claimant's request and 
 
         claimant was present and participated in the examination of Dr. 
 
         Coates on July 11, 1984.  Claimant can hardly claim surprise in 
 
         the admission of deposition in which she had an opportunity to 
 
         participate.  Moreover, the following stipulation appears on page 
 
         2 of Dr. Coates deposition taken July 11, 1984.
 
         
 
                               S T I P U L A T I 0 N
 
         
 
                   MR. RUSH: Gentlemen, may we agree the deposition of Dr. 
 
              Coates is being taken at this time and place by agreement of 
 
              counsel, it may be used as provided for in the Rules of 
 
              Civil Procedure and in conformance with the Industrial 
 
              CommissionerOs Rules.
 
         
 
                   MR. BICKEL:  That's agreeable.
 
         
 
                   MR. UDELHOFEN:  So agreed.
 
         
 
         (Dr. Coates Deposition, July 11, 1984)
 
         
 
         It is apparent from this stipulation that claimant has waived any 
 
         right to object to the use of this deposition at the hearing held 
 
         on July 18, 1985.  Claimant's objection is overruled.
 

 
         
 
         
 
         
 
         JUNGE V. CENTURY ENGINEERING
 
         Page   9
 
         
 
         
 
         
 
              Claimant further contests the award of $150.00 for the cost 
 
         of taking Dr. Coates deposition on July 11, 1984.  Claimant 
 
         argues she should be allowed the full $375.00 which she was 
 
         charged as stated in claimant's exhibit 4.  Expert witness fees 
 
         are covered by Iowa Code section 622.72, (1985) which states:
 
         
 
                 Witnesses called to testify only to an opinion founded on 
 
              special study or experience in any branch of science, or to 
 
              make scientific or professional examinations and state the 
 
              result thereof, shall receive additional compensation, to be 
 
              fixed by the court, with reference to the value of the time 
 
              employed and the degree of learning or skill required; but 
 
              such additional compensation shall not exceed one hundred 
 
              fifty dollars per day while so employed.
 
         
 
         Therefore, the deputy was correct in allowing claimant $150.00 
 
         for the taking of Dr. Coates deposition.
 
         
 
              Claimant further contests the admission into evidence of 
 
         defendants' exhibits A and B.  Claimant's objections to these 
 
         exhibits go to the weight they should be given and not their 
 
         admissibility as evidence.  There is no indication that these 
 
         exhibits were given improper weight in the consolidated 
 
         review-reopening decision of September 13, 1985 nor are those 
 
         exhibits given substantial weight in reaching this decision.  
 
         Claimant's' objections are overruled.
 
         
 
              Finally claimant argues that the ruling of February 11, 1986 
 
         denying claimant expenses following defendants' cancellation of 
 
         the Dr. Coates deposition on March 16, 1983.  That ruling found 
 
         that the problems which led to cancellation were a result of 
 
         claimant's actions in not allowing a free flow of medical
 
         
 
         information and that claimant's actions were in violation of 
 
         section 85.27.  Review of the record and the appeal decision 
 
         filed March 13, 1984 supports the deputy's analysis in the ruling 
 
         of February 11, 1986.
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant is predisposed to form callus.
 
         
 
              2.  Claimant has a cavus foot, an unusually high arch, which 
 
         is a congenital condition.
 
         
 
              3.  Claimant's present foot and back problems are not 
 
         related to any prior work aggravation she may have sustained.
 
         
 
              4.  Claimant sustained a temporary flare-up of her foot 
 
         problem on October 28, 1980 which resulted in only a temporary 
 
         disability of a two day duration.
 
         
 
              5.  Claimant's surgery on January 19, 1981 was the result of 
 
         claimant's congenital problems and not her temporary flare-up of 
 
         October 28, 1980.
 
         
 
              6.  Claimant's back problems are not related to her work.
 
         
 
              7.  The time claimant was off work from September 15, 1980 
 

 
         
 
         
 
         
 
         JUNGE V. CENTURY ENGINEERING
 
         Page  10
 
         
 
         
 
         to June 19, 1984 was related to her congenital problems.
 
         
 
              8.  The medical expenses and transportation expenses set out 
 
         in claimant's exhibits 1 and 2 are the result of claimant's 
 
         congenital problems.
 
         
 
              9.  Defendants' exhibit B is signed by Dr. Coates and is his 
 
         medical statement concerning the claimant's condition.
 
         
 
             10.  The medical report of Dr. Naden was not served prior to 
 
         the prehearing conference.
 
         
 
             11.  The problems which led to the cancellation of Dr. 
 
         Coates' deposition on March 16, 1985 were the result of actions 
 
         in not allowing a free flow of information.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has not established by a preponderance of the 
 
         evidence her condition has changed since September 2, 1980 and 
 
         that this change of condition is proximately caused by her 
 
         industrial injury.  Therefore, claimant is not entitled to an 
 
         award of further benefits for file no. 618141.
 
         
 
              Claimant has not established that the medical expenses in
 
         exhibit 1 or the transportation expenses listed in exhibit 2 are 
 
         causally related to any work injury.
 
         
 
              WHEREFORE, the decision of the deputy as to file no. 618141 
 
         is reversed.
 
         
 
              Claimant has not established a compensable work injury of 
 
         October 28, 1980.
 
         
 
              The information sought by claimant's attempt to depose 
 
         defendants Century Engineering/Wausau's attorney, John Bickel is 
 
         privileged by the work product rule set out in Hickman, 329 U.S. 
 
         495.
 
         
 
              WHEREFORE, the ruling of February 25, 1985 is affirmed.
 
         
 
              The medical report of Dr. Naden was not served prior to the 
 
         prehearing conference as required by Division of Industrial 
 
         Services Rule 343-4.17, formerly Industrial Commissioner Rule 
 
         500-4.17.  No demonstration of emergency justifying a continuance 
 
         was made.
 
         
 
              WHEREFORE, the ruling of July 17, 1985 is affirmed.
 
         
 
              The problems which led to the cancellation were a result of 
 
         claimant's actions in not allowing a free flow of medical 
 
         information as required by section 85.27, The Code.
 
         
 
              WHEREFORE, the ruling of February 11, 1986 is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 

 
         
 
         
 
         
 
         JUNGE V. CENTURY ENGINEERING
 
         Page  11
 
         
 
         
 
         
 
              That defendants Century Engineering/Wausau pay unto claimant 
 
         two hundred sixteen dollars ($216.00) for mileage incurred in the 
 
         85.39 examination (exhibit 2) (141 miles at $.24/mile)
 
         
 
              That defendants Century Engineering/Wausau pay unto claimant 
 
         two hundred forty-three dollars ($243.00) for costs in file 
 
         numbers 618141 and 662314 as set out in exhibit 4; item 4 is 
 
         reduced to one hundred fifty (150) in accordance with Iowa Code 
 
         section 622.72.
 
         
 
              Signed and filed this 4th day of February, 1987.
 
         
 
         
 
         
 
         
 
                                                 ROBERT C. LANDESS
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert R. Rush
 
         Attorney at Law
 
         526 Second Avenue, S.E.
 
         P.O. Box 2457
 
         Cedar Rapids, Iowa 52406
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         500 MNB Bldg.
 
         P.O. Box 2107
 
         Cedar  Rapids, Iowa 52406
 
         
 
         Mr. Steven Udelhofen
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1402.20-1402.40-2206-3700
 
                                                Filed February 4, 1987
 
                                                ROBERT C. LANDESS
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DARLENE JUNGE,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         CENTURY ENGINEERING,                       File Nos. 618141/662314
 
         
 
              Employer,                                   A P P E A L
 
         
 
         and                                            D E C I S I 0 N
 
         
 
         FIREMAN'S FUND INSURANCE
 
         COMPANY, and EMPLOYERS
 
         INSURANCE OF WAUSAU,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         
 
         
 
         1402.20 - 1402.40 - 2206-3700
 
         
 
              Defendant appeals and claimant cross-appeals from a 
 
         consolidated review-reopening and arbitration decision awarding 
 
         certain medical expenses, costs, mileage, 31 3/7 weeks of healing 
 
         period benefits, and 18 weeks of permanent partial disability 
 
         under Iowa Code section 85.34(2).  Reversed.  Claimant must prove 
 
         by a preponderance of the evidence a change of condition causally 
 
         related to her prior industrial injury.  Claimant's current 
 
         problems were found to be related to her congenital defects.
 
         
 
              Claimant is not entitled to recover the cost of medical 
 
         reports not admitted into evidence.
 
         
 
              Iowa Code section 622.72 allows a maximum of $150 per day 
 
         for expert witness testimony.  Thus claimant was not allowed to 
 
         recover $375 for the one hour deposition of her doctor.  
 
         Claimant's motion to depose defendant-Century 
 
         Engineering/WausauOs attorney John Bickel denied as the 
 
         information sought is privileged by the work product rule.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DARLENE JUNGE,
 
         
 
              Claimant,
 
         
 
         VS.                                      File Nos. 618141/662314
 
         
 
         CENTURY ENGINEERING,                            0 R D E R
 
         
 
              Employer,                                   N U N C
 
         
 
         and                                               P R 0
 
         
 
         FIREMAN'S FUND INSURANCE                         T U N C
 
         COMPANY, and EMPLOYERS
 
         INSURANCE OF WAUSAU,
 
         
 
              Insurance Carriers,
 
              Defendants.
 
         
 
         
 
              Review of the appeal decision filed February 4, 1987 reveals 
 
         the following errors which need correction:
 
         
 
              On page 5, in the second paragraph, the second sentence 
 
         should read: David W. Johnson, D.C., who has examined claimant, 
 
         opines in a medical report dated July 20, 1982 that claimant's 
 
         back problems in May 1979 were the result of physical instability 
 
         from her foot/work-related injury.
 
         
 
              On page 9, the first sentence in the last paragraph should 
 
         read: Finally claimant argues that the ruling of February 11, 
 
         1986 denying claimant expenses following defendants' cancellation 
 
         of Dr. Coates' deposition on March 16, 1983 is in error.
 
         
 
              On page 11, following the second paragraph, this sentence 
 
         should appear: WHEREFORE, the decision of the deputy as to file 
 
         no. 662314 is affirmed.
 
         
 
              On page 11, the first paragraph of the order should read: 
 
         That defendants Century Engineering/Wausau pay unto claimant two 
 
         hundred sixteen dollars ($216.00) for a section 85.39 examination 
 
         (exhibit 4, item 5) and thirty-three and 84/100 dollars ($33.84) 
 
         for mileage incurred in the section 85.39 examination (141 miles 
 
         at $.24/mile) (exhibit 2).
 
         
 
             On page 11, an additional paragraph of the order should read: 
 
         That each party shall bear the costs of producing their own 
 
         evidence and the cost of the attendance of the shorthand reporter 
 
         and the transcript shall be shared equally.
 
         
 
         JUNGE V. CENTURY ENGINEERING
 
         Page 2
 
         
 
                                                
 
                                                         
 
         
 
         
 
         
 
              Signed and filed this 10th day of February, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                  ROBERT C. LANDESS
 
                                                  INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert R. Rush
 
         Attorney at Law
 
         526 Second Avenue, S.E.
 
         P.O. Box 2457
 
         Cedar Rapids, Iowa 52406
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         500 MNB Bldg.
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa 52406
 
         
 
         Mr. Steven Udelhofen
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50309
 
 
 
         
 
         
 
 
            
 
 
 
           
 
                  
 
                   
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOSEPH V. DOYLE,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                      File No. 618155
 
         LAND 0' LAKES, INC.,
 
                                                        A P P E A L
 
              Employer,
 
                                                      D E C I S I O N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from a review-reopening decision awarding 
 
         claimant further permanent partial disability benefits based on 
 
         35 percent industrial disability and further healing period 
 
         benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing; claimant's exhibits 1 through 7; and 
 
         defendants' exhibits A through Q.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                    ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
                 1.  Claimant failed to show a material or substantial 
 
              change in condition to support an increased award of 
 
              disability in the Review-Reopening.
 
         
 
                 2.  The Deputy incorrectly concluded that Claimant did 
 
              not suffer a separate fall or injury on September 10, 1982.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be totally 
 
         reiterated herein.
 
         
 
         
 
         
 
              In an arbitration decision filed December 16, 1980 it was 
 
         found that on January 12, 1978 claimant sustained a work injury 
 

 
         
 
         
 
         
 
         DOYLE V. LAND OOLAKES, INC.
 
         Page   2
 
         
 
         
 
         resulting in a subdural hematoma.  In that decision the deputy 
 
         stated:
 
         
 
                 After the operation and while in the hospital, claimant 
 
              had what he described as a seizure.  Claimant indicated he 
 
              continues to have these seizures 2 or 3 times a week and 
 
              sometimes every day.  Claimant described a seizure as 
 
              follows:
 
         
 
              Q.  And how do these seizures happen to you?  How do they 
 
              appear to you?  How do you feel when it happens?
 
         
 
              A.  Well, when I have it, I become weak and I -- it's almost 
 
              like the person that's talking, I can just about say what 
 
              he's going to say before he says it. It's like I have lived 
 
              it before in my life.  After it's over, I can't remember 
 
              anything about it.  I can remember it, but I can't remember 
 
              what was said or --
 
         
 
              Q.  Do you feel that you are totally in control of yourself 
 
              when you are having these seizures?
 
         
 
              A.  Well, I don't know whether it's from -what do you call 
 
              it, practice, or what, but I can continue to do what I am 
 
              doing or -- but I don't know as I am fully in control of 
 
              myself.
 
         
 
              Q.  Can you think clearly?
 
         
 
              A.  No.
 
         
 
                 Claimant revealed that his seizures sometimes only last a 
 
              matter of seconds.  Claimant takes Dilantin and 
 
              Phenobarbital to prevent his seizures.  Claimant also 
 
              complains of a numbness in his left hand and foot since the 
 
              injury.
 
         
 
         (Arbitration Decision, page 2)
 
         
 
              The medical reports and testimony of Samuel P. Durr, M.D.; 
 
         H. W. Miller, M.D.; and John C. VanGilder, M.D., were received as 
 
         evidence at the arbitration hearing.
 
         
 
              In the analysis section of the arbitration decision the
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         deputy stated:
 
         
 
                 Based on the evidence presented and the principles of law 
 
              previously stated, claimant has met his burden in proving a 
 
              causal connection between his injury and his craniotomy and 
 
              seizures.  Although Dr. Durr testified that as a result of 
 
              his examination of claimant he did not think a subdural 
 
              hematoma resulted from claimant's injury, Dr. Durr disclosed 
 

 
         
 
         
 
         
 
         DOYLE V. LAND OOLAKES, INC.
 
         Page   3
 
         
 
         
 
              that something could have shown up later.  The greater 
 
              weight of medical evidence causally , connects claimant's 
 
              injury with his problems.  Dr. VanGilder clearly states a 
 
              causal connection in his report of March 20, 1980.
 
         
 
                 Although the record does not disclose if all the doctors 
 
              were questioned regarding permanent disability, Dr. 
 
              VanGilder using the AMA Guide indicated a permanent 
 
              disability of O5% to 15% impairment of the whole man."  As 
 
              disclosed by the principles of law previously stated, 
 
              functional disability is only one of the factors in 
 
              determining industrial disability.  Claimant is 51 years old 
 
              and a high school graduate.  The evidence reveals that 
 
              claimant has been employed as a route man driving a truck 
 
              most of his life.  The evidence also disclosed that claimant 
 
              went right back into the same job as before his injury and 
 
              has been able to continue working the same job without 
 
              restriction.  Although claimant states he is tired all the 
 
              time, has an insecure feeling, and doesn't know how long he 
 
              will be able to continue in his employment, he reveals that 
 
              his performance at work has not changed.  It is found that 
 
              as the result of his injury, claimant has an industrial 
 
              disability of 15 percent of the body as a whole.
 
         
 
         (Arb. Dec., P. 7)
 
         
 
              No appeal was taken from the arbitration decision filed 
 
         December 16, 1980.
 
         
 
              At the review-reopening hearing on January 7, 1986 claimant 
 
         indicated that the nature of his seizures has not changed 
 
         significantly; however, he testified that the frequency of the 
 
         seizures has changed:
 
         
 
              Q.  Okay.  You stated the frequency has changed.  Has it 
 
              changed recently?
 
         
 
              A.  I think maybe in the last, maybe, year they're more 
 
              frequent.
 
         
 
         
 
         
 
         
 
         
 
              Q.  Okay. How many did you have say a year and a half, two 
 
              years ago?  How many were you having, say, in a weeks time 
 
              or month's time?
 
         
 
              A.  That's hard to say.  I would say maybe I might go a week 
 
              and didn't have any, and then when I started having them I'd 
 
              have them frequently; two or three or more a day.
 
         
 
              Q.  So you'd go for a week, two weeks?
 
         
 
              A.  Could be, yeah.
 
         
 
              Q.  And in the last year how often have you been having 
 
              them?
 
         
 

 
         
 
         
 
         
 
         DOYLE V. LAND OOLAKES, INC.
 
         Page   4
 
         
 
         
 
              A. There isn't very many days that go by that I don't have 
 
              them anymore.
 
         
 
              Q.  Is it the same phenomenon that you have the one after 
 
              another or soon following another once they start during a 
 
              day?
 
         
 
              A. Well, it's -- they're usually not very close together.  I 
 
              mean, like maybe, you know, it's sometimes like -- maybe 
 
              it's something that's happening or something that -- where I 
 
              -- you know, then I don't know whether it makes me nervous  
 
              or what but I feel it coming.
 
         
 
              Q.  But you'll have more than one during a day?
 
         
 
              A.  If I start having them, yeah.
 
         
 
         (Review-reopening Transcript, pp. 9-10)
 
         
 
              Claimant opines that his disposition has changed; that he is 
 
         more irritable; that he has more problems maintaining his 
 
         balance; and that he must urinate more frequently.  Claimant 
 
         states that he usually has to get up once or twice during the 
 
         night to urinate and that he has never had to do this before.  
 
         Claimant also states that he now has memory problems which affect 
 
         his work and his ability to speak with others.
 
         
 
              Margaret Doyle, claimant's wife, testified that claimant's 
 
         memory is getting worse; that he is more irritable; that he 
 
         urinates more often; and that he socializes less.  On 
 
         cross-examination Mrs. Doyle admits that she has actually seen 
 
         very few of claimant's spells or seizures and that claimant's 
 
         motivation to do work around the house and desire to socialize 
 
         had diminished considerably at the time of the arbitration 
 
         hearing.
 
         
 
         
 
         
 
         
 
              On September 10, 1982 claimant fell backwards in a Milk 
 
         cooler landing on his buttocks and hitting his head.  Two days 
 
         before this fall claimant's medication had been changed by Byron 
 
         Rovine, M.D. Dr. Rovine's notes reflect this change in 
 
         medication:
 
         
 
              9-8-82  Still having 3-4 minor or z psychomotor sequences 
 
              /week.  No majors.  Will continue Dilantin & substitute 
 
              Tegretol for Depakena.  Schedule given him for medication
 
         
 
                                            AM    PM
 
              changeover to      (Dilantin 200 - 300
 
              CBL4 SMA in 2 wks  (Tegretol 400 - 400
 
                & return
 
         
 
         (Claimant's Exhibit 3, p. 5)
 
         
 
              Claimant testified that the change in medication made him 
 
         unsteady and that after his fall in 1982 he experienced double 
 
         vision.  Claimant states that Dr. Rovine cut his medication back. 
 

 
         
 
         
 
         
 
         DOYLE V. LAND OOLAKES, INC.
 
         Page   5
 
         
 
         
 
          Claimant testified that he missed 13 days as a result of the 
 
         fall.
 
         
 
              Dr. Rovine's notes, for the period immediately after the 
 
         1982 fall, indicate the following:
 
         
 
              9-13-82  Diplopia & unsteady since change in Rx
 
                   Fell - but z no head injury
 
                   Now no longer double but blurred.
 
              Exam ok.  No work this week.
 
                   Ret for recheck on Fri 9/17.
 
         
 
                                 /s/_________________________
 
         
 
              9-17-82  Symptoms have subsided.  Back to work 9/20
 
                 Continue Dilantin 500/day
 
                                   400/day
 
              CBC & Ret 3mo
 
         
 
                                /s/__________________________
 
         
 
         (Cl. Ex. 3, p. 6)
 
         
 
              Claimant was examined by Daniel B. Johnson, M.D., on 
 
         February 1, 1984.  Dr. Johnson states his impression: "My 
 
         impression at this time is that Mr. Doyle suffers from partial 
 
         complex seizures secondary to head trauma and subdural hematoma.  
 
         It is also clear that he has experienced considerable emotional 
 
         and cognitive changes secondary to the brain injury.O (Cl. Ex. 
 
         5)
 
         
 
         
 
              Frank S. Gersh, Ph.D., clinical psychologist, has examined 
 
         claimant and in his deposition he opines that claimant suffers 
 
         from organic brain syndrome.  Dr. Gersh testified concerning the 
 
         status of claimant's organic brain syndrome:
 
         
 
              Q.  Can you tell me whether you feel that Joe's organic 
 
              brain syndrome is a changing condition or a condition that's 
 
              static and nonchanging?
 
         
 
              A.  Well, there's a number of things that make me think that 
 
              it could be getting worse.  One is that just before I saw 
 
              him he went to an easier job at work.  He had been having 
 
              trouble with the job that he had before that and he went to 
 
              an easier job.  Secondly, he reported to Dr. Varner -- this 
 
              was last month -- that he's been having trouble keeping his 
 
              balance and walking, which he didn't report to me before.  
 
              And he's also having trouble -- more trouble with his memory 
 
              and concentration apparently than what he had when I saw 
 
              him, which was back in April of 1985.
 
         
 
         (Gersh Deposition, pp. 8-9)
 
         
 
              On cross-examination Dr. Gersh admits that he has not had 
 
         the opportunity to do serial testing which would give him 
 
         objective information about whether claimant's condition is 
 
         changing.
 
         
 

 
         
 
         
 
         
 
         DOYLE V. LAND OOLAKES, INC.
 
         Page   6
 
         
 
         
 
              Claimant has been treated by H. W. Miller, M.D.  In an 
 
         October 24, 1984 letter, Dr. Miller observes that changing 
 
         claimant's intake of sugar resulted in an improvement of 
 
         claimant's seizures:
 
         
 
                 On 1-26-84 the patient was referred to Dr. Daniel Johnson 
 
              for further evaluation and evaluation as appropriate.  On 
 
              9-20-84 the patient was seen status post evaluation with 
 
              hypoglycemic episodes regarding Dr. Rovine.  With change of 
 
              intake of his sugar he had shown much improvement in 
 
              recurrent complex seizures and it was our goal at that time 
 
              to avoid further medication change in an attempt to obtain 
 
              as much control as possible with dietary manipulation 
 
              alone.
 
         
 
         (Cl. Ex. 2)
 
         
 
              On cross-examination Dr. Gersh was questioned about Dr. 
 
         Miller's observations:
 
         
 
              Q.  Down in the second paragraph of his letter Dr. Miller 
 
              reports on what I take it is an observation, namely that 
 
              with change of intake of Mr. Doyle's sugar he has shown much 
 
              improvement in recurrent complex seizures.  Let's assume for 
 
              the moment that the doctor saw that type of before-and-after 
 
              change.  Does that suggest to you at all that Mr. Doyle's 
 
              blood sugar and how it relates to his bodily functions may 
 
              be playing a role in the frequency or occurrence of his 
 
     
 
         
 
         
 
         
 
         
 
         DOYLE V. LAND OOLAKES, INC.
 
         Page   7
 
         
 
         
 
              seizures?
 
         
 
              A.  That's what the letter suggests.
 
         
 
                  ....
 
         
 
              Q.  All right.  Is there at last a distinct possibility, if 
 
              we accept Dr. Miller's observations as accurate, that Mr. 
 
              Doyle might not only be suffering from the various syndromes 
 
              and disorders that you have described, but he may also be 
 
              suffering from some imbalance in his body's ability to 
 
              process sugar which could be playing some role in triggering 
 
              these complex seizures that he's had?
 
         
 
              A.  Well, it's possible.  It's also possible that because of 
 
              the brain damage his brain is simply more sensitive to 
 
              normal changes in sugar that we all have due to the fact 
 
              that we eat episodically and the sugar gets processed out of 
 
              our bodies and we eat different amounts of sugar at 
 
              different times and so forth.  So the brain just could be 
 
              more sensitive.  It is not necessarily an imbalance in the 
 
              body's processing of sugar.
 
         
 
         (Gersh Dep., pp. 32-34)
 
         
 
              Claimant has also been examined by Vernon P. Varner, M.D.  
 
         At his deposition Dr. Varner opined that his deposition was 
 
         premature because he had not completed his neurological 
 
         assessment of claimant's consideration.  Dr. Varner does opine 
 
         that claimant's condition has worsened since 1980.
 
         
 
              Claimant testifies that he has worked for Land 0O Lakes for 
 
         the last 11 years.  Claimant reveals on cross-examination that he 
 
         bid into his current position which pays an additional two 
 
         hundred dollars per month over the job he was doing at the time 
 
         of his injury.  Claimant opines that although his current job 
 
         requires him to work more hours it is lighter work.  Claimant 
 
         discloses that he is 56 years of age.
 
         
 
                                  APPLICABLE LAW
 
         
 
              In a review-reopening proceeding in which the claimant is 
 
         seeking additional compensation after a previous award of 
 
         disability, he must show a change of condition since the previous 
 
         award which would entitle him to an additional award.  Stice v. 
 
         Consolidated Coal Co., 228 Iowa 1031, 291 N.W. 452 (1940).  
 
         Claimant has the burden of showing by a preponderance of the 
 
         evidence his right to compensation in addition to that awarded by 
 
         a prior adjudication.  Deaver v. Armstrong Rubber Co., 170 N.W.2d 
 
         455 (Iowa 1969).  Unless there is more than a mere scintilla of 
 
         evidence of increased incapacity of the employee, a mere 
 
         difference of opinion of experts as to the percentage of 
 
         disability arising from the original injury would not justify a 
 
         finding of change of condition.  Bousfield v. Sisters of Mercy, 
 
         249 Iowa 64, 86 N.W.2d 109 (1957).
 
         
 
                                     ANALYSIS
 
         
 
              Defendants initially argue that claimant has not shown a 
 

 
         
 
         
 
         
 
         DOYLE V. LAND OOLAKES, INC.
 
         Page   8
 
         
 
         
 
         change of condition which supports an award of additional 
 
         benefits.  Claimant testifies the frequency of his spells has 
 
         increased.  Claimant feels that there are not many days that he 
 
         does not have seizures now.  Comparing this to the deputy's 
 
         statement in the arbitration decision that claimant experiences 
 
         seizures two to three times a week and sometimes every day 
 
         reveals that some change in frequency may have occurred.  
 
         Claimant also opines that he has memory problems, that he 
 
         urinates more frequently, and that he is more irritable.  Mrs. 
 
         Doyle confirms these complaints.  Neither Dr. Gersh nor Dr. 
 
         Varner examined or treated before the 1980 arbitration hearing as 
 
         such they have no basis on which to offer an opinion as to 
 
         whether claimant's condition has changed.  Moreover, Drs. Gersh 
 
         and Varner admit that the only basis which they have for opining 
 
         that claimant's condition has worsened is from the statements 
 
         that claimant and Mrs. Doyle have made to them.  The greater 
 
         weight of evidence would indicate that claimant has had a slight 
 
         change in his physical condition.
 
         
 
              Claimant has failed, however, to show a change in his 
 
         industrial disability.  The slight change in claimant's physical 
 
         condition does not appear to have placed any new restrictions on 
 
         claimant's employment.  In fact it appears that claimant has now 
 
         successfully bid into a better paying position.  Taking all the 
 
         factors of industrial disability into consideration, it is 
 
         determined that claimant presently has an industrial disability 
 
         of 15 percent.
 
         
 
              Defendants also argue that claimant's fall on September 10, 
 
         1982 was not related to the January 12, 1978 work injury.  
 
         Claimant's testimony, together with Dr. Rovine's notes, establish 
 
         that claimant's fall on September 10, 1982 resulted from the 
 
         unsteadiness claimant was experiencing due to the change in 
 
         medication for his seizures.  Claimant testified that he missed 
 
         13 days of work as a result of this injury.  He is entitled to an 
 
         additional 13 days of healing period benefits.
 
         
 
         
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant sustained a work injury resulting in a subdural 
 
         hematoma on January 12, 1978.
 
         
 
              2.  Claimant sustained an injury on September 12, 1982 when 
 
         he slipped and fell backwards in a milk cooler.
 
         
 
              3.  The injury on September 12, 1982 resulted from the 
 
         unsteadiness claimant was experiencing due to the change in his 
 
         seizure medication.
 
         
 
              4.  Claimant missed 13 days of work as a result of the 
 
         September 12, 1982 injury.
 
         
 
              5.  The September 12, 1982 injury resulted in no additional 
 
         permanent disability.
 
         
 
              6.  Claimant continues to be employed by defendant-Land 0O 
 

 
         
 
         
 
         
 
         DOYLE V. LAND OOLAKES, INC.
 
         Page   9
 
         
 
         
 
         Lakes.
 
         
 
              7.  Claimant's present job for Land 0O Lakes is lighter work 
 
         than the job he was doing in 1980; this job does allow claimant 
 
         to work more hours and earn more money.
 
         
 
              8.  Claimant's weekly rate of compensation is stipulated to 
 
         be $196.12.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has not established a change of condition affecting 
 
         his earning capacity.
 
         
 
              Claimant is entitled to an additional 13 days of healing 
 
         period benefits commencing September 11, 1982 and ending on 
 
         September 24, 1982 at the weekly rate of $196.12.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed in part 
 
         and reversed in part.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant thirteen (13) days of healing 
 
         period benefits commencing September 11, 1982 and ending 
 
         September 24, 1982 at the weekly rate of one hundred ninety-six 
 
         and 12/100 dollars ($196.12).
 
         
 
              That defendants pay accrued benefits in a lump sum, and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
         
 
              That defendants pay the costs of this action, pursuant to
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file claim activity reports pursuant 
 
         to Division of Industrial Services Rule 343-3.1(2), as requested 
 
         by the agency.
 
         
 
         
 
              Signed and filed this 30th day of November, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                              DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hayes
 
         Mr. Paul J. McAndrew, Jr.
 
         Attorneys at Law
 
         122 South Linn Street
 
         Iowa City, Iowa 52240
 
         
 

 
         
 
         
 
         
 
         DOYLE V. LAND OOLAKES, INC.
 
         Page  10
 
         
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         111 East Third Street
 
         600 Union Arcade Building
 
         Davenport, Iowa 52801-1550
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40 - 1802
 
                                                 Filed November 30, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JOSEPH V. DOYLE,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                    File No. 618155
 
         LAND 0' LAKES, INC.,
 
                                                      A P P E A L
 
              Employer,
 
         
 
         and                                        D E C I S I 0 N
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40 - 1802
 
         
 
              Claimant failed to show a change in condition which support 
 
         an award of additional industrial disability.  Claimant did show 
 
         a slight change in his physical condition but this slight change 
 
         did not result in any new restrictions on claimant's employment. 
 
         In fact claimant had successfully bid into a better paying 
 
         position.  Reversed.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         IVAN E. PILCHER,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
                                                 File No. 618597
 
         PENICK & FORD,
 
                                                    A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening decision awarding 
 
         further healing period benefits, but denying further permanent 
 
         partial disability benefits.  Defendants cross-appeal.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing and joint exhibits 1 through 22.  Briefs 
 
         have been filed by all parties on appeal.
 
         
 
                                    ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
                   1.  The Claimant is entitled to an additional 110 
 
              weeks of permanent partial disability benefits pursuant 
 
              to Section 85.34(2)(u) because of a psychological 
 
              condition stemming from his injury on November 25, 
 
              1979.
 
         
 
                   2.  The Claimant should not have been taxed with 
 
              the costs of this action.
 
         
 
              Defendants state the following issue on cross-appeal: 
 
         "Claimant should be barred from any recovery for the reason that 
 
         healing period terminated on April 29, 1980."
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately
 
         reflects the pertinent evidence and it will not be totally 
 
         reiterated herein.
 
         
 
              Claimant sustained a work-related injury to his right eye on 
 
         November 25, 1979 when a floor drain exploded spraying lime into 
 

 
         his eyes.  Claimant's left eye recovered completely, however he 
 
         was left with only shadow vision in his right eye.  Subsequently, 
 
         claimant entered into a settlement agreement pursuant to section 
 
         86.13, Iowa Code.  This agreement was approved through operation 
 
         of law since notification of disapproval by this agency was not 
 
         given within 20 days.  See 86.13. Pursuant to the settlement 
 
         agreement, claimant was paid 140 weeks of permanent partial 
 
         disability benefits for 100 percent loss of the right eye.  The 
 
         issue of when claimant's healing period ended was specifically 
 
         left open.
 
         
 
              Claimant returned to work following his injury on September 
 
         1, 1980.  At that time claimant was performing the job he was 
 
         doing at the time of the injury.  Claimant states he later bid 
 
         into a different job because he didn't want to work with 
 
         chemicals any longer.
 
         
 
              Claimant states that he fears losing his left eye; that he 
 
         does not like to go out to eat or socialize because people stare 
 
         at his right eye; and that he no longer actively participates in 
 
         sports.  Claimant believes that it is more difficult to read 
 
         meters at work since the injury.
 
         
 
              Claimant was examined by Thomas Sannito, Ph.D., a clinical 
 
         psychologist on February 17, 1982.  Dr. Sannito states in a 
 
         letter to claimant's attorney:
 
         
 
                   I have reviewed the Ivan Pilcher file and it is my 
 
              opinion that he is disabled 50%.  Losing the visual 
 
              acuity of his right eye and the disfigurement have 
 
              affected him psychologically in all phases of his life. 
 
               He no longer participates in life the way he did 
 
              before this loss.  Whatever work he can do is limited, 
 
              because the loss of this important sensory organ has 
 
              severely disrupted his life.  He is mentally, 
 
              emotionally, and psychologically distressed over this 
 
              result.
 
         
 
                   Please keep in mind that when a person's mind or 
 
              mental state is altered, it affects his whole body and 
 
              day to day functioning.
 
         
 
         (Joint Exhibit 3)
 
         
 
              Claimant was examined by Vernon P. Varner, II.D., J.D., on 
 
         March 5, 1985.  In his report, Dr. Varner states his impression: 
 
         "Chronic major depressive disorder with obsessive features with 
 
         marked increase in low self-esteem, marked social withdrawal, 
 
         near frank paranoia, although there is no delusional component to 
 
         it, concerning what everyone is thinking about his eye as he I 
 
         walks by." (Joint Ex. 7)
 
         
 
              Claimant was also examined by R. Paul Penningroth, 14.D., on 
 
         November 4, 1985.  Dr. Penningroth diagnosed claimant's problems 
 
         as a "possible adjustment disorder."  See Joint Ex. 5.
 
         
 
                               APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and evidence and will only be briefly 
 
         expanded upon here.
 
         
 
              In a review-reopening proceeding in which the claimant is 
 
         seeking additional compensation after a previous award of 
 

 
         
 
         
 
         
 
         PILCHER V. PENICK & FORD
 
         Page   3
 
         
 
         
 
         disability, he must show a change of condition since the previous 
 
         award which would entitle him to an additional award.  Stice v. 
 
         Consolidated Coal Co., 228 Iowa 1031, 291 N.W. 452 (1940).  
 
         Claimant has the burden of showing by a preponderance of the 
 
         evidence his right to compensation in addition to that awarded by 
 
         a prior adjudication.  Deaver v. Armstrong Rubber Co., 170 N.W.2d 
 
         455 (Iowa 1969).  Unless there is more than a mere scintilla of 
 
         evidence of increased incapacity of the employee, a mere 
 
         difference of opinion of experts as to the percentage of 
 
         disability arising from the original injury would not justify a 
 
         finding of change of condition. Bousfield v. Sisters of Mercy, 
 
         249 Iowa 64, 86 N.W.2d 109 (1957).
 
         
 
              In Gosek v. Garmer and Stiles Co., 158 N.W.2d 731, 735 (Iowa 
 
         1968), the court held that "...cause for allowance of additional 
 
         compensation exists on proper showing that facts relative to an 
 
         employment connected injury existed but were unknown and could 
 
         not have been discovered by the exercise of reasonable diligence, 
 
         sometimes referred to as substantive omission due to mistake, at 
 
         time of any prior settlement or award."
 
         
 
                                ANALYSIS
 
         
 
              Claimant seeks additional permanent partial disability 
 
         benefits in this proceeding following his settlement.  This 
 
         agency has consistently held that a settlement approved pursuant 
 
         to section 86.13 has the same effect as an award of benefits.  
 
         Claimant must, therefore, establish by a preponderance of the 
 
         evidence that his condition has changed since the settlement.  
 
         The evidence presented establishes that claimant's psychological 
 
         condition has deteriorated since the time of his eye injury but 
 
         does not disclose whether his condition has changed since the 
 
         time of the settlement.  This does not satisfy claimant's 
 
         burden.
 
         
 
              Furthermore, claimant has presented no evidence or argument 
 
         that cause for allowance of additional compensation exists on the 
 
         basis of substantive omission due to mistake.  Claimant has made 
 
         no showing that his psychological condition was unknown to him at 
 
         the time that he entered into the settlement agreement.  Nor has 
 
         claimant shown that he could not have discovered through exercise 
 
         of reasonable diligence that he suffered from traumatic neurosis 
 
         resulting from his eye injury.  Claimant's testimony at the 
 
         hearing reveals that his fear of losing his good eye and his 
 
         disinterest in socializing or participation in sports activity 
 
         began shortly after he returned to work in September 1980 
 
         (transcript, pages 23, 35, 44).  Claimant's wife testified that 
 
         she noticed a change in claimant's attitude immediately after the 
 
         injury.  Claimant states that his attorney referred him to Dr. 
 
         Sannito for examination.  Dr. Sannito examined claimant on 
 
         February 17, 1982--less than four months after claimant's 
 
         settlement agreement with defendants was approved.  Claimant has 
 
         not seriously pursued treatment of his psychological problems.  
 
         Some medication was prescribed by Dr. Varner, however, claimant 
 
         never returned for follow-up evaluation.  It is interesting that 
 
         claimant did not seek psychological evaluation for problems which 
 
         apparently had existed for at least two years, until four months 
 
         after settlement with his employer.
 
         
 

 
         
 
         
 
         
 
         PILCHER V. PENICK & FORD
 
         Page   4
 
         
 
         
 
              To show a change in condition one must show what that 
 
         condition was at the time of the previous hearing or settlement.  
 
         The fact that one goes out and obtains evidence that wasn't 
 
         presented at a prior time does not establish a change of 
 
         condition.  To come up with new evidence may only show a 
 
         different opinion or shed light on something that should have 
 
         been presented earlier.
 
         
 
              Even if claimant had shown a change of condition, he could 
 
         not recover benefits for industrial disability since his injury 
 
         was to a scheduled member and not the the body as a whole.  
 
         Claimant's psychological problems affect his earning capacity to 
 
         some extent.  However, he has already been compensated for any 
 
         reduction in his earning capacity through the schedule.  The 
 
         scheduled loss system created by the legislature is presumed to 
 
         include compensation for reduced capacity to labor and to earn. 
 
         Schell v. Central Engineering Co., 232 Iowa 421, 4 N.W.2d 399 
 
         (1942).
 
         
 
              Defendants argue that claimant's healing period ended on 
 
         April 29, 1980.  Defendants rest their argument on a report of 
 
         Jay H. Krachmer, M.D., who examined claimant on April 29, 1980:
 
         
 
                   Mr. Pilcher was last seen in the Cornea clinic on 
 
              April 29, 1980 at which time his visual acuity in the 
 
              right eye was not improved and in the left eye his 
 
              visual acuity remains 20/20.  The cornea on the right 
 
              is completely opacified and vascularized and shows 
 
              evidence of early lipid degeneration.  The visual 
 
              prognosis of Mr. Pilcher's right eye is extremely poor 
 
              and it is not likely he will regain useful vision from 
 
              his right eye. on the other hand we are not at the 
 
              present time contemplating removing this eye.  We are 
 
              unable to predict whether this will be necessary in the 
 
              future.  It is reasonable at this point for Mr. Pilcher 
 
              to return to an active life.  It will, however, be 
 
              necessary for him to wear protective lenses in the 
 
              interest of his remaining good eye and his working 
 
              ability will be limited to those tasks which can be 
 
              performed adequately by a one eyed individual.
 
         
 
         (Joint Ex. 13)
 
         
 
              The deputy awarded healing period benefits up to September 
 
         1, 1980 when claimant returned to work.  Section 85.34 (1979) 
 
         provides:
 
         
 
                   1.  Healing period.  If an employee has suffered a 
 
              personal injury causing permanent partial disability 
 
              for which compensation is payable as provided in 
 
              subsection 2 of this section, the employer shall pay to 
 
              the employee compensation for a healing period, as 
 
              provided in section 85-37, beginning on the date of the 
 
              injury, and until he has returned to work or competent 
 
              medical evidence indicates that recuperation from said 
 
              injury has been accomplished, whichever comes first.
 
         
 
              Claimant's healing period ended on April 29, 1980.  Dr. 
 
         Krachmer's examination on that date revealed that claimant had 
 

 
         
 
         
 
         
 
         PILCHER V. PENICK & FORD
 
         Page   5
 
         
 
         
 
         substantially recovered and significant further improvement from 
 
         his injury was not anticipated.  The events since April 29, 1980 
 
         also show that claimant ceased improvement as indicated by Dr. 
 
         Krachmer.
 
         
 
              Claimant argues that he should not have been taxed with 
 
         costs of this action.  Costs are taxed at the discretion of the 
 
         deputy. (Division of Industrial Services Rule 343-4.33) Many 
 
         things may be considered by the deputy.  Claimant has not shown 
 
         an abuse of that discretion.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant started work for Penick & Ford on June 21, 1954 
 
         and still works for this employer.
 
         
 
              2.  On November 25, 1979, while working at Penick & Ford, 
 
         claimant injured both his eyes.
 
         
 
              3.  Claimant's left eye sustained no permanent partial 
 
         impairment as a result of the accident of November 25, 1979.
 
         
 
              4.  Claimant's right eye is 95 percent impaired as a result 
 
         of the accident on November 25, 1979.
 
         
 
              5.  On October 29, 1981, the parties filed an "agreement for 
 
         settlement" which was approved by this agency by operation of 
 
         law.
 
         
 
              6.  Claimant did not sustain any permanent disfigurement to 
 
         his head or face as a result of the accident of November 25, 1979 
 
         separate from the appearance of the right eye itself and the area 
 
         immediately surrounding the right eye.
 
         
 
              7.  Claimant had a minor surgical procedure performed near 
 
         his right eye on January 24, 1980.
 
         
 
              8.  Claimant reached maximum medical recuperation on April 
 
         9, 1980.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              Claimant's healing period ended on April 29, 1980.
 
         
 
              Claimant has not established by a preponderance of the 
 
         evidence that his condition has changed since the time his 
 
         settlement, pursuant to section 86-13.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That all costs are taxed to the claimant.
 
         
 

 
         
 
         
 
         
 
         PILCHER V. PENICK & FORD
 
         Page   6
 
         
 
         
 
         
 
                 Signed and filed this 21st day of October, 1987.
 
         
 
         
 
         
 
         
 
                                          DAVID E. LINQUIST
 
                                          INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. J. Richard Johnson
 
         Attorney at Law
 
         P.O. Box 607
 
         Cedar Rapids, Iowa 52406
 
         
 
         Mr. Steven L. Udelhofen
 
         Attorney at Law
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1302-1302.1-1802-2907-1803.1,
 
                                            Filed October 21, 1987
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         IVAN E. PILCHER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 618597
 
         PENICK & FORD,
 
                                                   A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         FIREMAN'S FUND INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         1302 - 1302.1 - 1802- 1803.1- 2907
 
         
 
              Claimant denied further benefits for permanent partial 
 
         disability following his 86.13 settlement because he failed to 
 
         establish a change of condition.  Claimant's healing period found 
 
         to have ended when his treating physician revealed that claimant 
 
         had substantially recovered and significant further improvement 
 
         was not anticipated.  Claimant did not show an abuse of 
 
         discretion in the deputy's taxation of costs.  It was noted that 
 
         even had claimant shown a change of condition, he could not 
 
         recover benefits from industrial disability since his injury was 
 
         to a scheduled member and not to the body as a whole.
 
 
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL PRUITT,                                File No. 619638
 
                                                              705526
 
              Claimant,
 
                                                      R E V I E W -
 
         vs.
 
                                                    R E O P E N I N G
 
         IOWA POWER AND LIGHT COMPANY,
 
                                                     D E C I S I O N
 
              Employer,
 
              Self-Insured,                             F I L E D
 
         
 
         and                                           APR 17 1989
 
         
 
         SECOND INJURY FUND OF IOWA,               INDUSTRIAL SERVICES
 
         
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening from two 
 
         memorandums of agreement filed by Paul Pruitt, claimant, against 
 
         Iowa Power and Light Company, employer, and Second Injury Fund of 
 
         Iowa, defendants, for benefits as a result of an injury to the 
 
         right knee and leg that occurred on November 30, 1979 (file no. 
 
         619638) and an injury to the left knee and leg that occurred on 
 
         May 24, 1982 (file no. 705526).  Defendant, employer, Iowa Power 
 
         and Light Company, entered into agreements for settlement on each 
 
         of these injuries and the two agreements for settlement were 
 
         approved by the industrial commissioner on December 30, 1987.  
 
         The only remaining defendant in this case, at this time, is the 
 
         Second Injury Fund of Iowa.  A hearing was held in Des Moines, 
 
         Iowa, on January 20, 1988, and the case was fully submitted at 
 
         the close of the hearing.  The record consists of the testimony 
 
         of Paul Pruitt, claimant, and claimant's exhibit 1, which 
 
         contains 22 pages, and defendant's exhibits A through C.  Both 
 
         parties elected to order a transcript and to divide the cost.  A 
 
         copy of the transcript was supplied for the industrial 
 
         commissioner's file.  Both attorneys filed excellent briefs.
 
         
 
                               STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing.
 
         
 
              That an employer-employee relationship existed between 
 
         employer and claimant at the time of both injuries.
 
         
 
              That claimant sustained an injury on November 30, 1979, and 
 
         another injury on May 24, 1982, both of which arose out of and in 
 
         the course of employment with employer.
 
         
 
                                                
 
                                                         
 
              That temporary disability benefits are not an issue in this 
 
         case at this time.
 
         
 
              That both injuries were the cause of permanent disability.
 
         
 
              That claimant sustained a 15 percent permanent partial 
 
         impairment of his right leg and was paid 33 weeks of scheduled 
 
         member permanent partial disability benefits for this injury.
 
         
 
              That claimant sustained a 15 percent permanent partial 
 
         impairment of the left leg and was paid 33 weeks of scheduled 
 
         member permanent partial disability benefits for this injury.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the rate of compensation, in the event of an award of 
 
         weekly benefits, is $286.76 per week.
 
         
 
              That no affirmative defenses are asserted.
 
         
 
              That medical benefits are not in dispute.
 
         
 
              That defendant, Second Injury Fund of Iowa, makes no claim 
 
         for credit for any benefits paid prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUE
 
         
 
              The parties submitted the following issue for 
 
              determination.
 
         
 
              Whether claimant is entitled to any benefits from the Second 
 
         Injury Fund of Iowa, and if so, the nature and extent of 
 
         benefits.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Of all of the evidence that was introduced, the following is 
 
         a summary of the evidence most pertinent to this decisions
 
         
 
              Claimant is age 37, married and has three children.  He is a 
 
         high school graduate with one semester of junior college and nine 
 
         months of training as a medical corpsman in the Navy.  Past 
 
         employments include bartender and ward care for disabled persons. 
 
         Claimant started to work for employer in April of 1971, working 
 
         on overhead lines, underground lines, installing residential 
 
         electrical service, setting poles and basic utility work 
 
         (transcript pages 11-16).
 
         
 
              On November 30, 1979, claimant injured his right knee.  While 
 
         climbing off of a digger, his right foot got caught and he fell 
 
         over and twisted his right knee as he fell off of the digger. 
 
                                                
 
                                                         
 
         Claimant was sent to Robert Bannister, M.D., who referred claimant 
 
         to John Kelley, M.D., an orthopedic surgeon.  Dr. Kelley performed 
 
         surgery on claimant's right knee in December of 1979.  Claimant 
 
         said that he missed seven weeks of work and then returned to his 
 
         former job of cable splicer of high voltage electrical cable which 
 
         is approximately five inches in diameter and is covered with lead. 
 
         Claimant testified that his work requires working with and 
 
         handling 100 to 200 foot lengths of this five inch lead covered 
 
         cable for as long as 20 to 24 hours, sometimes underground, 
 
         running it from one manhole to the next in very close quarters.  
 
         He said that this required pushing and pulling with his arms, legs 
 
         and back.  The job also requires removing manhole covers by 
 
         squatting and bending, climbing in and out of manholes on ladders, 
 
         and removing sand and goo from the manhole.  Claimant testified 
 
         that he also replaces light poles and burned out street lights.  
 
         Claimant testified that it seemed like he is doing something 
 
         physical all day long such as climbing stairs, bending, stooping, 
 
         squatting and kneeling (tr. pp. 16-25).
 
         
 
              Claimant testified that after the injury of November 30, 
 
         1979, he favored his injured right knee, but nevertheless, 
 
         certain work caused him pain and swelling in it, especially 
 
         squatting and kneeling jobs, which are frequent in the manholes 
 
         and climbing in and out of the manholes on steps or ladders.  
 
         Claimant said that it was necessary to return to see Dr. 
 
         Bannister for these continuing problems and that Dr. Bannister 
 
         always referred him to Dr. Kelley (tr. pp. 25 & 26).
 
         
 
              Claimant related that on May 24, 1982, he injured his left 
 
         knee while lifting a 165 to 185 pound manhole cover off of the 
 
         ground.  He suddenly felt a real sharp pop in his left knee.  He 
 
         saw Dr. Kelley again for this injury and was off work for ten 
 
         weeks.  Again he returned to work as a cable splicer (tr. pp. 
 
         26-28).
 
         
 
              Claimant testified that he has been able to perform his job 
 
         as cable splicer for five and one-half years after these 
 
         injuries, but that he has difficulties performing the job almost 
 
         everyday climbing up and down stairs, lifting weights and 
 
         climbing ladders. Claimant complained of pain, grinding, pulling 
 
         and swelling in both of his knees, especially on days when he has 
 
         been more physically active or when he happens to step wrong.  
 
         Claimant said that he has to compensate with arm strength in 
 
         several ways and that he also has to wear kneepads and knee wraps 
 
         (tr. pp. 28-30). Furthermore, he added that he required 
 
         additional surgery on his right knee in March of 1983 to realign 
 
         the kneecap (tr. pp. 30 & 31).
 
         
 
              Claimant asserted that his condition is getting worse.  
 
         There is constant swelling, grittiness, and grinding on the 
 
         bottom of each kneecap (tr. pp. 31 & 32).  He said that he was 
 
         earning $15.30 per hour with employer and he likes his job.  The 
 
         Second Injury Fund of Iowa sent claimant to Mercy Occupational 
 
         Evaluation Center (MOEC).  Claimant was told that his physical 
 
         condition would become more symptomatic in the future 
 
                                                
 
                                                         
 
         (defendants' exhibit A).  Claimant said that in that event he did 
 
         not know what he would do if he were not able to perform his 
 
         current job.  His only past employment was tending bar (tr. pp. 
 
         31-36).
 
         
 
              In response to questions from defendant's counsel, claimant 
 
         granted that he had not looked for any other work after the first 
 
         injury and that he had not bid on any other job with employer. 
 
         Claimant conceded that he had received all of his pay increases 
 
         to which he was entitled since the occurrence of both injuries 
 
         (tr. pp. 36-41).
 
         
 
              A summary of the medical evidence follows.
 
         
 
              Claimant was hospitalized from December 17, 1979, to 
 
         December 19, 1979, for a torn medial meniscus of the right knee 
 
         from a hyperextension injury (exhibit 1, pages 1 & 3).  Surgery 
 
         was performed on December 18, 1979 (ex. 1, p. 2).  The surgery 
 
         was a patella shaving with trimming of a small transverse tear of 
 
         the posterior medial meniscus (ex. 1, p. 8).  Claimant was 
 
         returned to work on July 21, 1980 (ex. 1, p. 8).  Claimant had a 
 
         flare-up of this injury in March of 1981, when he felt something 
 
         catch or pop while squatting (ex. 1, p. 9).  Claimant continued 
 
         to have swelling and pain in December of 1981, which Dr. Kelley 
 
         said was from roughness of the under surface of his right patella 
 
 
 
                             
 
                                                
 
                                                         
 
         aggravated by or related to his work (ex. 1, p. 17).
 
         
 
              The second injury was diagnosed as chondromalacia with 
 
         lateral subluxation of the patella (ex. 1, p. 11).  The surgery 
 
         on the left knee was performed on June 16, 1982 (ex. 1, pp. 3 & 
 
         12). Claimant had trouble with his knee after the surgery.  Dr. 
 
         Kelley said on September 16, 1982, he may have trouble with his 
 
         knee in the future when he does heavy work which involves 
 
         squatting or climbing.  Dr. Kelley said that he will not have a 
 
         normal patello-femoral joint (ex. 1, p. 18).
 
         
 
              On March 7, 1983, claimant was diagnosed with synovitis of 
 
         the right knee, probably secondary to aggravated chondromalacia 
 
         (ex. 1, p. 12).  His right knee patella was subluxed rather 
 
         markedly laterally (ex. 1, p. 13).  The third knee surgery, which 
 
         was the second surgery to the right knee, was carried out on 
 
         March 25, 1983 (ex. 1, pp. 6 & 13).  After the.surgery claimant 
 
         continued to have complaints of pain which are recorded in Dr. 
 
         Kelley's office notes on March 21, 1983, June 20, 1983, September 
 
         22, 1983, October 4, 1983, October 17, 1983, December 1, 1983 and 
 
         April 23, 1984 (ex. 1, pp. 13-15).  Dr. Kelley summarized 
 
         claimant's condition on January 17, 1986, as follows:
 
         
 
              Paul Pruitt has chondromalacia of the patella involving both 
 
              the right and left knee.  This causes swelling and pain in 
 
              the anterior joint.
 
         
 
              He has a permanent impairment in both knees as a result of 
 
              this condition, and we have advised him that he should not 
 
              do anything that involves repeated squatting, climbing, 
 
              going up and down stairs, jumping and/or kneeling.  He can 
 
              walk on uneven ground and flat surfaces without limitation.
 
         
 
         (ex. 1, p. 20)
 
         
 
              Dr. Kelley added these comments on causal connection on 
 
         August 1, 1986:  "The incident of November 30, 1979 was the 
 
         aggravating factor in necessitating surgery in 1979 and 1983 on 
 
         his right knee.  The incident of May 16, 1982 [sic] was the 
 
         aggravating factor which necessitated surgery on the left knee in 
 
         June of that year."  (ex. 1, p. 21).
 
         
 
              On November 19, 1987, Dr. Kelley said that claimant still 
 
         complained of pain beneath the patella and swelling in both 
 
         knees. His discomfort is increased with activity.  He has 
 
         crepitation beneath the patella bilaterally.  He has effusion in 
 
         both knees. His patellae are tender when palpitated and he has a 
 
         positive apprehension test bilaterally.  Dr. Kelley concluded 
 
         this final report as follows:  "This patient has chondromalacia 
 
         of the patella which can be expected to progress through the 
 
         years.  I would agree that he has a 15% impairment of the right 
 
         and left lower extremity, secondary to the patello-femoral 
 
         arthritis." (ex. 1, p. 22).
 
         
 
              On January 21, 1987, claimant was evaluated by Joshua 
 
                                                
 
                                                         
 
         Kimelman, D.O., at Mercy Occupational Evaluation Center (MOEC).  
 
         Dr. Kimelman said that claimant did have evidence of lateral 
 
         releases with palpable defect in the lateral retinaculum 
 
         bilaterally.  He does has marked crepitation to palpitation with 
 
         compression at the patellar-femoral compartment and there is 
 
         palpable crepitation in the under surface of the patella with 
 
         tenderness, inferior, medially and laterally (ex. A, pp. 1-4).  
 
         Dr. Kimelman concluded:
 
         
 
              I believe we must conclude that the patient has reached a 
 
              maximum state of recuperation regarding his knees and 
 
              because of the early degenerative changes present on 
 
              previous X-rays and the anticipation of further degenerative 
 
              changes I would guess that the patient's knees would, if 
 
              anything, become more symptomatic in the future.
 
         
 
              Based on the AMA Guidelines, the patient does not have any 
 
              functional impairment relating to his right foot, left 
 
              shoulder, or his back.  As regards his right and left knees, 
 
              I would say, that at this time, he is approximately fifteen 
 
              percent impaired regarding the right and left lower 
 
              extremity secondary to the chondromalacia and degenerative 
 
              changes involving his patella femoral [sic] compartments.
 
         
 
              I do not have any specific recommendations for physical 
 
              limitations although certainly avoidance of climbing and 
 
              squatting would be of benefit to him.  The patient should 
 
              continue with quadraceps [sic] exercise program to maintain 
 
              and strengthen his quadraceps [sic].  Perhaps non-steroidal 
 
              [sic] anti-inflammatory medication would be of some benefit 
 
              to him.  Additionally, a patella stabilizing-type orthosis, 
 
              slipon [sic] elastic pad with a lateral patellar pad to 
 
              maintain the kneecap in a more aligned position, may be of 
 
              some benefit to him for his use from time to time.
 
         
 
         (ex. A, p. 3)
 
         
 
              Claimant was also seen by Robert W. Jones, B.S. and G. 
 
         Patrick Weigel, M.A., occupational therapists at the MOEC on 
 
         January 22, 1987.  Claimant did well on the general aptitude 
 
         battery (GATB) and the Career Assessment Inventory (CAI).  
 
         However, he preferred "blue collar" occupations.  They felt that 
 
         he could continue in his present line of work as a cable splicer 
 
         (ex. A, pp. 4-8).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The Second Injury Fund of Iowa contends that they have no 
 
         liability in this case because the second injury fund legislation 
 
         never intended that claimants with only a 15 percent impairment of 
 
         the leg were to be eligible for second injury fund benefits.  
 
         Irish v. McCreary Saw Mill, 175 N.W.2d 364, 369 (Iowa 1970) 
 
         decided that the term "loss of use," in the statute was not 
 
         intended to imply a total loss of use of a member of the body as a 
 
         prerequisite to eligibility for compensation.  This decision will 
 
                                                
 
                                                         
 
         not overrule the Irish case as proposed by defendants in their 
 
         posthearing brief (def. brief, p. 1).
 
         
 
              The second injury fund states that second injury fund 
 
         legislation was intended to encourage the hiring of the 
 
         handicapped.  The fund further asserts that Fulton v. Jimmy Dean 
 
         Meat Co., file no. 755039 (appeal decision July 23, 1986) defined 
 
         a handicap as a permanent injury that tends to act as a hindrance 
 
         to an individual's ability to obtain or retain effective 
 
         employment.  The fund reasons that since claimant returned to 
 
         work at his former job of cable splicer, with the same employer, 
 
         that he cannot show that he is handicapped because he cannot show 
 
         he has been unable to obtain or retain effective employment.  
 
         Even though the legislature considered the hiring of the 
 
         handicapped as a consideration in passing Iowa Code sections 
 
         85.63 through 85.69, they, nevertheless, did not use the term 
 
         "handicapped" in the legislation which became law.  There is no 
 
         statutory requirement for an injured worker to be "handicapped", 
 
         as such, in order to be eligible for second injury fund benefits.  
 
         Furthermore, this interpretation of the Fulton case by the second 
 
         injury fund is too narrow.  Neither the statute, case law, nor 
 
         administrative decisions have required the employee to totally 
 
         separate from his employer at the time of the injury in order to 
 
         be eligible for second injury fund benefits.  Irish, 175 N.W.2nd 
 
         364 (1970); Anderson v. Second Injury Fund, 262 N.W.2d 789 
 
         (1978); Second Injury Fund v. Mich Coal Co., 274 N.W.2d 300 
 
         (1979); McKee v. Second Injury Fund, 378 N.W.2d 920 (1985); 
 
         Second Injury Fund v. Neelans, No. 88-399, (Iowa filed February 
 
         22, 1989); Second Injury Fund v. Fulton, No. 87-1567, (Iowa filed 
 
         February 22, 1989); and Second Injury Fund v. Albright, No. 
 
         87-1518, (Iowa filed February 22, 1989).
 
         
 
              The proposition of the second injury fund, that the 
 
         determination as to the apportionment of liability between the 
 
         fund and the employer as determined by the industrial 
 
         commissioner in the Neelans and Fulton cases is contrary to the 
 
         plain meaning of the language of the statue, was just recently 
 
         rejected by the supreme court in the Neelans, Fulton and 
 
         Albright cases cited immediately above.  Defendant, Fund, 
 
         emphasizes that claimant has never suffered an actual loss of 
 
         earnings, but on the contrary, has always received compensation 
 
         increases over the years after both of these injuries.  By a 
 
         comparison, claimant has offered these opposing views in his 
 
         brief.
 
         
 
                   Impairment of earning capacity is to be measured by the 
 
              value of the loss or impairment of general earning capacity, 
 
              rather than the loss of wages or earnings in a specific 
 
              occupation.  Schnebly v. Baker, 217 N.W.2d 708, 726 (Iowa 
 
              1974).  The argument that the claimant is making more money 
 
              than he was at the time of his injury shows a shortsighted 
 
              view of the industrial disability concept.  See, Iowa 
 
              Workers' Compensation Law and Practice, Lawyer and Higgs, 
 
              Section 13-5, p. 116, and citations therein.  The real 
 
              question is future earning capacity.
 
                                                
 
                                                         
 
         
 
                   The Supreme Court has held that impairment of physical 
 
              capacity in itself may be presumed to impair the general 
 
              earning capacity of the person injured.  Shover v. Iowa 
 
              Lutheran Hospital, 107 N.W.2d 85, 94 (Iowa 1961).  
 
              Impairment of physical capacity creates an inference of 
 
              lessened earning capacity in the future.  Anthes v. Anthes, 
 
              139 N.W.2d 201, 208 (Iowa 1965).  The basic element to be 
 
              determined is the reduction in the value of the power to 
 
              earn.  Id.  Earnings before and after injury are simply 
 
              elements of proof.  Id. The loss of earning capacity or 
 
              power generally, rather than in a particular avocation, is 
 
              that for which compensation is awarded.  Jurgens v. 
 
              Davenport, Rock Island and N.W. Ry. Co., 88 N.W.2d 7971 802 
 
              (Iowa 1958).  As was stated in Jurgens, supra, "Even if she 
 
              was not at the time of her injury engaged in that work, her 
 
              ability to do it was a resource of value and if that ability 
 
              was impaired or destroyed it was a proper fact for 
 
              consideration by the jury."
 
         
 
         (cl. brief, pp. 3 & 4)
 
         
 
              It is the determination in this case that postinjury 
 
         earnings create an inference of earning capacity, but the 
 
         inference is rebuttable by evidence showing them to be an 
 
         unreliable basis for estimating earning capacity [2 Larson, 
 
         Worker's Compensation Law, section 57.21(c)(d)].  Postinjury 
 
         earnings are not synonymous with earning capacity (2 Larson, 
 
         sections 57.21 and 57.31).  It must be taken into consideration 
 
         that claimant likes his job, wants to keep it and has made an 
 
         extraordinary effort to maintain his employment in spite of pain, 
 
         swelling, grittiness and grating in his knees.  2 Larson, section 
 
         57.31 at page 10-163.  Industrial disability, or loss of earning 
 
                           
 
 
 
                                                
 
                                                         
 
         capacity, in a workers' compensation case is quite similar to 
 
         impairment of earning capacity, an element of damages, in a tort 
 
         case.  Impairment of physical capacity creates an inference of 
 
         lessened earning capacity.  The basic element to be determined, 
 
         however, is reduction in the value of the general earning 
 
         capacity of the person rather than the loss of wages or earnings 
 
         in a specific occupation.  Holmquist v. Volkswagon of America, 
 
         Inc., 261 N.W.2d 516 (Iowa app. 1977); 100 A.L.R. third 143; 2 
 
         Larson, section 57.21, 57.31; Michael v. Harrison Co., 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 218 
 
         (1979).
 
         
 
              Defendants contend that there is no evidence that claimant's 
 
         knees have or will cause a loss of earning capacity.
 
         
 
              As claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d
 
         251, 257 (1963).
 
         
 
              The operative phrase in industrial disability is loss of 
 
         earning capacity.  Ver Steegh v. Rolscreen, IV Iowa Industrial 
 
         Commissioner Report 377 (1984).  Claimant has introduced an 
 
         impairment rating of 15 percent for each knee.
 
         
 
              Claimant testified that he has trouble squatting and 
 
         kneeling.  It is particularly difficult to stand after squatting. 
 
         Claimant testified that he has trouble climbing in and out of 
 
         manholes and in and out of the service truck.  Claimant related 
 
         that he has trouble going up and down stairs, lifting weights and 
 
         climbing ladders.  Yet, these are the very duties that claimant 
 
         must perform everyday of his working life.  Claimant described 
 
         that he has chronic trauma, persistent pain, swelling, grittiness 
 
         and grinding in both knees.  Claimant testified that his knees 
 
         are getting worse rather than better.  All of these testimonial 
 
         contentions of claimant are supported and verified by the medical 
 
         evidence.
 
         
 
              Dr. Kelley reported on January 17, 1986, that claimant 
 
         should not do anything that involves repeated squatting, 
 
         climbing, going up and down stairs, jumping and/or kneeling (ex. 
 
         1, p. 20).  Dr. Kelley verified the complaints of pain, as well 
 
                                                
 
                                                         
 
         as actual effusion and crepitation (ex. 1, p. 22).
 
         
 
              Dr. Kimelman verified palpable defects, marked crepitation 
 
         and tenderness bilaterally.  He indicated that patient's knees 
 
         would, if anything, become more symptomatic in the future, rather 
 
         than less symptomatic in the future.  Although Dr. Kimelman did 
 
         not assign formal sounding restrictions as such, he nevertheless 
 
         recommended against climbing and squatting.  He recommended that 
 
         claimant perform quadriceps exercises to maintain his quadricep 
 
         strength indefinitely into the future.  He recommended that 
 
         claimant wear a patellar pad to maintain his kneecap alignment.
 
         
 
              A person who:  (1) has to constantly avoid certain 
 
         activities that are required by his job everyday, (2) has to 
 
         perform daily exercises just to maintain normal strength in his 
 
         quadriceps, and (3) and who should wear a patellar pad in order 
 
         to keep his kneecap aligned, has presented evidence of 
 
         considerable disability.
 
         
 
              The treating physician, Dr. Kelley, in his final comments 
 
         stated that claimant has chondromalacia of the patella which can 
 
         be expected to progress through the years (ex. 1, P. 22).
 
         
 
              Claimant is 37 years of age and has no special education 
 
         other than high school.  His loss of future earnings from 
 
         employment due to his disability is more serious than would be 
 
         the case for a younger or older individual, or a person who is 
 
         better educated or has a wider spectrum of employment history.  
 
         Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of 
 
         the Industrial Commissioner 34 (1979); Walton v. B & H Tank 
 
         Corp. 2.II Iowa Industrial Commissioner Reports 426 (1981).  When 
 
         the Neelans case came before Iowa Industrial Commissioner David 
 
         E. Linquist, he found that claimant had sustained a 10 percent 
 
         permanent impairment of the hand and a 20 percent permanent 
 
         impairment of the leg and awarded claimant an industrial 
 
         disability of 65 percent of the body as a whole.  Neelans, file 
 
         no. 756250 (app. dec. June 30, 1987).  When the Albright case 
 
         came before Industrial Commissioner Robert C. Landess, he found 
 
         that claimant had sustained a 10 percent permanent impairment of 
 
         each knee and awarded claimant an industrial disability from the 
 
         combined effects of both injuries of 30 percent of the body as a 
 
         whole. Albright, file nos. 696983/682771 (appeal decision April 
 
         27, 1987).  When the Fulton case was decided by Industrial Robert 
 
         C. Landess, he found that claimant had a 7 percent permanent 
 
         impairment of the left leg and an 8 percent permanent impairment 
 
         of the right leg and that the combined effects of both injuries 
 
         resulted in an industrial disability of 25 percent of the body as 
 
         a whole.  Fulton, file no 755039 (appeal decision July 28, 
 
         1986).
 
         
 
              In this case, claimant has a 15 percent permanent impairment 
 
         to each knee and has requested an award of 25 percent industrial 
 
         disability from the combined effects of both injuries.  
 
         Claimant's request, based on the evidence in this case, when 
 
         compared with the awards in Neelans, Albright and Fulton, is 
 
                                                
 
                                                         
 
         quite reasonable, if not modest.
 
         
 
              Therefore, based upon all of the foregoing considerations 
 
         and all of the factors considered in making a determination of 
 
         industrial disability it is determined that claimant is entitled 
 
         to a 25 percent industrial disability from the combined effects 
 
         of both first and the second injury.
 
         
 
              The formula to determine the liability of the second injury 
 
         fund is as follows:  (1) determine the amount of industrial 
 
         disability resulting from the combined effects of both the first 
 
         and second scheduled member injuries, (2) subtract the impairment 
 
         value of the first injury, (3) subtract the impairment value of 
 
         the second injury, (4) the resulting figure is the liability of 
 
         the Second Injury Fund of Iowa (Neelans, Fulton and Albright as 
 
         decided by the supreme court on February 22, 1989).
 
         
 
              Applying that formula to this case:  (1) the industrial 
 
         disability from the combined effect of both the first and second 
 
         injury injury is 125 weeks (500 x .25), (2) minus the impairment 
 
         value of the first injury to the right knee, which is 33 weeks 
 
         (220 x .15), (3) minus the impairment value of the second injury 
 
         to the left knee, which is 33 weeks (220 x .15), (4) which leaves 
 
         59 weeks as the liability of the Second Injury Fund of Iowa.
 
         
 
              Iowa Code section 85.64 provides that second injury fund 
 
         benefits are to be paid after the expiration of the full period 
 
         provided by law for the payments by the employer.  In this case 
 
         official notice is taken of the form 2a, claim activity report as 
 
         of January 7, 1988, in the industrial commissioner's file [Iowa 
 
         Administrative Procedure Act 17A.14(4)].  Claimant received 
 
         healing period benefits of 10 weeks and 5 days from June 16, 1982 
 
         until August 29, 1982.  Permanent partial disability shall begin 
 
         at the termination of healing period (Iowa Code section 
 
         85.34(2)]. Teel v. McCord, 394 N.W.2d 364 (Iowa 1988).  
 
         Thirty-three weeks of permanent partial disability benefits for 
 
         the second injury began on August 29, 1982, and therefore, should 
 
         have ended on April 17, 1983.  Therefore, second injury fund 
 
         benefits are to commence on April 18, 1983.
 
         
 
              In a recent decision, Industrial Commissioner David E. 
 
         Linquist held that the second injury fund can be ordered to pay 
 
         benefits in a lump sum, but that the fund is never liable to pay 
 
         interest on unpaid compensation.  Braden v. Big "W" Welding 
 
         Service, file no. 785744 (app. dec. October 28, 1988).
 
         
 
                             FINDINGS OF FACT
 
         
 
              Wherefore, based upon the foregoing evidence the following 
 
         findings of fact are made.
 
         
 
              That claimant sustained a permanent impairment of 15 percent 
 
         to his right knee and a permanent impairment of 15 percent to 
 
         this left knee.
 
         
 
                                                
 
                                                         
 
              That after the injuries up until the date of the hearing, 
 
         claimant has experienced chronic pain, swelling, grittiness, 
 
         grinding and grating in both of his knees.
 
         
 
              That claimant's subjective symptoms are corroborated and 
 
         verified by the medical evidence presented by Dr. Kelley the 
 
         treating physician and Dr. Kimelman the evaluating physician.
 
         
 
              That claimant is to avoid climbing and squatting, but at the 
 
         same time his job requires him to squat in order to splice cable 
 
         and to climb ladders in order to get in and out of manholes.
 
         
 
              That both Dr. Kelley and Dr. Kimelman expected claimant's 
 
         condition to become worse in the future.
 
         
 
              That claimant has sustained a 25 percent permanent 
 
         impairment to the body as a whole as a result of the combined 
 
         effects of both injuries.
 
         
 
                           CONCLUSION OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law the following conclusion of law is 
 
         made.
 
         
 
              That the liability of the Second Injury Fund of Iowa to 
 
         claimant and claimant's entitlement to benefits from the Second 
 
         Injury Fund of Iowa is 59 weeks of permanent partial disability 
 
         benefits calculated as demonstrated in the analysis commencing on 
 
         April 18, 1983.
 
         
 
                              ORDER
 
         
 
                       
 
                                                
 
                                                         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That the Second Injury Fund of.Iowa pay to claimant 
 
         fifty-nine (59) weeks of permanent partial disability benefits at 
 
         the rate of two hundred eighty-six and 76/100 dollars ($286.76) 
 
         per week in the total amount of sixteen thousand nine hundred 
 
         eighteen and 24/100 dollars ($16,918.24) commencing on April 18, 
 
         1983.
 
         
 
              That this amount is to be paid in a lump sum.
 
         
 
              That interest will not accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action are charged to the Second 
 
         Injury Fund of Iowa pursuant to Division of Industrial Services 
 
         rule 343-4.33.
 
         
 
              That the Second Injury Fund of Iowa file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services rule 343-3.1.
 
         
 
              Signed and filed this 17th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Phil Vonderhaar
 
         Attorney at Law
 
         840 Fifth Ave
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Robert Wilson
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 
         Des Moines, Iowa  50319
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.40; 1203; 3201; 3202; 
 
                                            3203
 
                                            Filed April 17, 1989
 
                                            WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL PRUITT,
 
         
 
              Claimant,                          File Nos. 619638
 
                                                           705526
 
         vs.
 
                                                   R E V I E W -
 
         IOWA POWER AND LIGHT COMPANY,
 
                                                 R E 0 P E N I N G
 
              Employer,
 
              Self-Insured,                       D E C I S I 0 N
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         1402.40; 1203; 3201; 3202; 3203
 
         
 
              Claimant requested and was awarded 25 percent industrial 
 
         disability based on a 15 percent impairment to each knee from 
 
         first and second injury.  An analysis of the awards in Neelans, 
 
         Albright, and Fulton and the evidence in this case showed that 
 
         claimant's request for 25 percent industrial disability was quite 
 
         reasonable if not modest.
 
         
 
              Decision declined to overrule Irish as proposed by the 
 
         second injury fund.
 
         
 
              Decision held that the word "handicapped" as defined in 
 
         Fulton does not appear in Iowa Code section 85.63 through 
 
         85.69.
 
         
 
              The formula used to determine second injury fund liability 
 
         was the one used by Industrial Commissioner Landess in Fulton v. 
 
         Jimmy Dean Meat Co., adopted by the supreme court in Neelans, 
 
         Albright and Fulton, filed February 22, 1989.
 
         
 
              Decision followed Industrial Commissioner Linquist holding 
 
         in Braden v. Big "W" Welding that a lump sum can be awarded 
 
         against the Second Injury Fund of Iowa, but that the Fund is 
 
         never liable for interest.
 
         
 
         
 
         
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _______________________________________________________________
 
         
 
         MARY MEHUS,
 
         
 
              Claimant,
 
                                                  File No. 619929
 
         VS.
 
                                                   A P P E A L
 
         
 
         OSCAR MAYER & COMPANY,
 
                                                  D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _______________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a proposed review-reopening decision 
 
         denying her further compensation because she did not establish a 
 
         change of condition since the time of her settlement which was 
 
         approved by this agency on March 15, 1982.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing and joint exhibits A through Q. Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the issues on appeal as:
 
         
 
              I.  Did the deputy industrial commissioner determine Mary 
 
              Mehus' claim for further benefits upon a basis of functional 
 
              disability as opposed to industrial disability, disregarding 
 
              evidence of increased pain as it affected job performance 
 
              capability?
 
         
 
              II.  Did the deputy industrial commissioner in essence 
 
              ignore credible, uncontroverted testimony in reaching his 
 
              conclusion that claimant had not shown by a preponderance of 
 
              the evidence that her disability had increased and was 
 
              proximately caused by her original injury?
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be reiterated 
 
         herein.
 
         
 
              Briefly stated, on November 26, 1979 claimant suffered an
 
         
 
         
 
         aggravation of her preexisting back condition.  Claimant 
 
         subsequently entered into a settlement agreement with defendant 
 
         for the disability which resulted from the November 1979 injury.  
 
         Pursuant to the settlement agreement defendant paid to claimant 
 
         benefits based on a 12.5 percent permanent partial disability of 
 

 
         
 
         
 
         
 
         MEHUS V. OSCAR MAYER & COMPANY
 
         Page   2
 
         
 
         
 
         the body as a whole.
 
         
 
              Claimant continued to work for defendant following the 
 
         settlement though she was experiencing pain and difficulty.  
 
         Eventually, however, claimant's back pain became so severe that 
 
         on May 11, 1984 when she experienced difficulty getting out of 
 
         bed she left her employment with defendant.  Claimant has not 
 
         returned to work since that time.
 
         
 
              Medical evidence indicates that claimant's functional 
 
         impairment ratings and work restrictions are not significantly 
 
         different than those at the time of the settlement agreement.  
 
         The medical evidence also indicates that claimant continues to 
 
         suffer from the same degenerative disk disease she had prior to 
 
         her injury.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury. [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury .... The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 
              body.
 
         
 
                 . . . 
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.
 
         
 
              [Citations omitted.] The injury to the human body here 
 
              contemplated must be something, whether an accident or not, 
 
              that acts extraneously to the natural processes of nature, 
 
              and thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the body.
 
         
 
              The preceding citation lends credibility to the finding that 
 
         claimant's back pain is not a change of condition proximately 
 
         caused by claimant's work injury of November 26, 1979.  
 
         Claimant's current back pain is related to the natural 
 
         progression of her preexisting degenerative disk disease.
 

 
         
 
         
 
         
 
         MEHUS V. OSCAR MAYER & COMPANY
 
         Page   3
 
         
 
         
 
         
 
              In all other respects the analysis and rationale of the 
 
         proposed review-reopening decision is adopted.  The findings of 
 
         fact, conclusions of law, and order are also adopted.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  At all times material herein, claimant was in the employ 
 
         of Oscar Mayer.
 
         
 
              2.  Claimant's job at Oscar Mayer has consisted of general 
 
         labor work as a meat packer.
 
         
 
              3.  As a result of the work injury of 1979, claimant lost 
 
         work for a considerable length of time and suffered a significant 
 
         permanent impairment of her lower back.
 
         
 
              4.  In March 1982, a settlement of claimant's workers' 
 
         compensation claims for healing period and permanent partial 
 
         disability benefits as a result of the 1979 work injury was 
 
         approved by this agency.
 
         
 
              5.  Between February 1982 and May 1984, claimant performed 
 
         the job of "inspecting glue bases" which required the monitoring 
 
         and servicing of a glue machine operation.
 
         
 
              6.  At the time of the settlement in March 1982, claimant 
 
         was experiencing considerable difficulty in performing her job 
 
         inspecting glue bases.
 
         
 
              7.  The work restrictions imposed upon claimant in February 
 
         1982 are not significantly different than her restrictions at the 
 
         present time.
 
         
 
              8. In May 1984, claimant voluntarily left her employment 
 
         with Oscar Mayer claiming that her condition deteriorated to such 
 
         a point that she could no longer work in any capacity at Oscar 
 
         Mayer.
 
         
 
              9.  Claimant has not sought alternative employment at Oscar 
 
         Mayer or anywhere else since May 1984, nor has Oscar Mayer 
 
         offered any alternative employment to claimant.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has not established by a preponderance of the 
 
         evidence that her condition has changed since February or March 
 
         1982, the time of a settlement of her workers' compensation 
 
         claims under Iowa Code section 86.13 arising from the November 
 
         26, 1979 work injury or that a causal relationship exists between 
 
         the alleged change of condition and the same work injury.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall take nothing from these proceedings.
 

 
         
 
         
 
         
 
         MEHUS V. OSCAR MAYER & COMPANY
 
         Page   4
 
         
 
         
 
         
 
              That claimant shall pay the costs of this action including 
 
         the transcription of the hearing proceeding.
 
         
 
         
 
              Signed and filed this 20th day of February, 1987.
 
         
 
         
 
         
 
         
 
                                                    ROBERT C. LANDESS
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. J. E. Tobey III
 
         Attorney at Law
 
         306 Northwest Bank Bldg.
 
         Davenport, Iowa 52806
 
         
 
         Mr. John J. Carlin
 
         Attorney at Law
 
         1002 Kahl Building
 
         Davenport, Iowa 52801
 
         
 
         Mr. Roger A. Lathrop
 
         Ms. Vicki L. Seeck
 
         Attorneys at Law
 
         600 Union Arcade Bldg.
 
         111 East Third Street
 
         Davenport, Iowa 52801
 
         
 
 
            
 
 
 
 
 
 
 
                                                 1302.10
 
                                                 Filed February 20, 1987
 
                                                 ROBERT C. LANDESS
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ________________________________________________________________
 
         
 
         MARY MEHUS,
 
         
 
              Claimant,
 
                                                  File No. 619929
 
         VS.
 
                                                    A P P E A L
 
         OSCAR MAYER & COMPANY,
 
                                                   D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         ________________________________________________________________
 
         
 
         1302.10
 
         
 
              Claimant denied further compensation because she did not 
 
         establish a change of condition since the time of her settlement.  
 
         Claimant's current condition is related to the natural 
 
         progression of her preexisting degenerative disk disease.
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DALE H. SEIEROE,
 
         
 
              Claimant,
 
                                                 File No. 626224
 
         vs.
 
         
 
         E. E. WRIGHT,                        A R B I T R A T I O N
 
         
 
              Employer,                          D E C I S I O N
 
         and
 
         
 
         TRI-STATE INSURANCE COMPANY
 
         OF MINNESOTA
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Dale Seieroe, 
 
         claimant, against E.E. Wright, employer, and Tri-State Insurance 
 
         Company of Minnesota, insurance carrier, to recover benefits as a 
 
         result of personal injuries sustained February 7, 1980.  This 
 
         matter came on for hearing before the undersigned deputy 
 
         industrial commissioner September 1, 1988.  The record was 
 
         considered fully submitted at the close of the hearing.  The 
 
         record in this case consists of the testimony of claimant, Anita 
 
         Howell, Larry Foster, M.D., and Gene Wright; joint exhibits 1 
 
         through 11, inclusive; claimant's exhibits 12 through 14, 
 
         inclusive; and defendants' exhibit A.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved September 1, 1988, the following issues are presented 
 
         for resolution:
 
         
 
              1.  The extent of claimant's entitlement to permanent 
 
         disability benefits;
 
         
 
              2.  Claimant's entitlement to certain medical benefits 
 
         provided under Iowa Code section 85.27;
 
         
 
              3.  The appropriate rate of compensation; and,
 
         
 
              4.  The applicability of the odd-lot doctrine.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on February 7, 1980 when a fire erupted 
 
         in the shop he was cleaning causing third degree burns over 70 
 
         percent of his body.  Claimant was hospitalized for 80 days 
 
         during which time he underwent seven surgical procedures and, 
 

 
         
 
         
 
         
 
         SEIEROE V. E. E. WRIGHT
 
         PAGE   2
 
         
 
         
 
         since his release, claimant estimated he has undergone 13 to 18 
 
         more procedures for "plastic surgery."  Claimant maintained that 
 
         at the time he was discharged from his hospitalization and for 
 
         over two years thereafter he wore an elastic suit and mask 24 
 
         hours a day which was designed to keep his scars from raising.
 
         
 
              Claimant testified that he essentially has not worked since 
 
         the day of his injury explaining that although he has attempted 
 
         to return to farming on three different occasions, attempted to 
 
         drive a truck, and attempted to assist in farm chores, he does 
 
         not have the stamina necessary to sustain any extended periods of 
 
         work.  Claimant maintained that he can work for 15 to 25 minutes, 
 
         maximum,and then feels quite fatigued and sweats profusely and 
 
         thus he must lie down and relax for 15 to 90 minutes.  Claimant 
 
         testified that he currently operates a gunsmith shop out of his 
 
         house which allows him to work in a climate controlled 
 
         environment and also allows him to work and rest as the need 
 
         arises.  Claimant testified that he started working on guns just 
 
         after he got out of the hospital, that he has an inventory of 20 
 
         or 25 guns, that he goes to four or five gun shows per year along 
 
         with a friend, and that although business has improved somewhat 
 
         the gunsmithing operation in his home has yet to make any type of 
 
         profit.  Claimant described his gunsmithing operation as "more 
 
         like a hobby" since it provides him with something to occupy his 
 
         day and is not a profitable venture.  Claimant explained that he 
 
         unlocks the front door to the gunsmith shop at approximately 8:45 
 
         or 9:00 a.m. and closes the shop at approximately 8:00 p.m. and 
 
         that during the course of these hours he receives assistance from 
 
         his daughter and that he sleeps approximately three and one-half 
 
         or four hours during this period of time.  Claimant testified 
 
         that he also operates a small movie rental operation out of his 
 
         home and gun shop although the movies are owned by another 
 
         company and the small commission claimant receives for renting 
 
         the movies approximately pays his electric bill.
 
         
 
              Claimant testified that because of his injury he now has a 
 
         fear of strangers and finds it hard to deal with strangers.  
 
         Claimant explained that although he is comfortable with those 
 
         individuals that he has known for years he has had a great deal 
 
         of difficulty in situations which require contact with the 
 
         general public.  Claimant testified that he currently has 
 
         problems with his eyes and his hearing as a result of the injury, 
 
         that he developed high blood pressure approximately two years 
 
         ago, that he fatigues easily, and that he does not believe he can 
 
         sustain any prolonged periods of work without the necessity of 
 
         resting frequently.  Claimant denied any respiratory problems 
 
         prior to his injury and maintained that he would secure 
 
         employment if he felt that he could.
 
         
 
              Claimant testified that he was paid by defendant employer 
 
         $1000 per month and received all the meat he needed which he 
 
         valued at approximately $25 per week.  Claimant could not 
 
         specifically identify the value of the meat that he received from 
 
         the employer but indicated that during the course of his 
 
         employment with E.E. Wright he never purchased any meat for 
 
         himself or his family.
 
         
 
              Larry Foster, M.D., general surgeon, testified he became 
 
         claimant's treating physician on the date of claimant's admission 
 
         to the burn unit at St. Luke's Medical Center on February 7, 1980 
 
         and found claimant to have burns covering 70 percent of his body 
 
         and an inhalation injury.  Dr. Foster described that when 
 
         claimant was admitted to the hospital claimant was in a life 
 

 
         
 
         
 
         
 
         SEIEROE V. E. E. WRIGHT
 
         PAGE   3
 
         
 
         
 
         threatening situation because of the extent of his burns and 
 
         because of the inhalation injury.  Dr. Foster explained that 
 
         because claimant also had third degree burns to his upper and 
 
         lower eyelids, it was necessary to surgically close claimant's 
 
         eyes and that during the course of claimant's hospital stay he 
 
         underwent seven different surgical procedures with approximately 
 
         14 hours of anesthesia and approximately 50 total units of 
 
         blood.
 
         
 
              Dr. Foster explained that because claimant had lost over 50 
 
         percent of his body skin, which is the major thermal regulator of 
 
         the body and maintains the body temperature, claimant has a great 
 
         lack of heat and cold tolerance and is therefore subject to 
 
         easily becoming hyperthermic.  Dr. Foster stated that since 
 
         grafted skin cannot function as undamaged skin claimant has no 
 
         thermal regulator and any increase in body temperature such as 
 
         that produced with muscle activities, stress or even doing 
 
         nothing will severely affect claimant and require rest since 
 
         claimant has a marked reduced capacity to sweat.  In addition, 
 
         Dr. Foster testified that claimant has a decreased capacity of 
 
         his lungs due to his inhalation injury received on February 7, 
 
         1980 which is not possible to overcome and, in fact, which may 
 
         become worse.  Dr. Foster opined that claimant does not have the 
 
         ability to work an eight or ten hour day because of the extent of 
 
         his injuries and the decreased capacity of his lungs.  Dr. Foster 
 
         felt that claimants operating his own business would be an ideal 
 
         situation since it allows claimant to work in a climate or 
 
         environmentally controlled atmosphere, to work at his own rate, 
 
         and it is a situation which allows him to stop and rest as 
 
         frequently as necessary.  Dr. Foster did not believe that 
 
         claimant had the capacity to work in any type of structured work 
 
         environment.
 
         
 
              Although Dr. Foster has not been treating claimant for 
 
         hypertension, Dr. Foster opined that while the hypertension would 
 
         not be a direct result of claimant's burn injuries, it could be a 
 
         secondary problem.  Dr. Foster stated that claimant is an 
 
         individual who must be sedate, because of the extent of his 
 
         injuries, which is not good for the cardiovascular system.  The 
 
         first sign of heart disease, the result of bad cardiovascular 
 
         health, is high blood pressure.  Dr. Foster concluded by stating 
 
         that claimant needs to watch his hypertension, needs to be 
 
         encouraged to lose weight, needs to watch his environmental 
 
         controls including heat and cold, needs to avoid stress, heat, 
 
         cold, exertion, others with upper bronchial infections since 
 
         claimant, as a result of the pulmonary injury he received, is 
 
         likely in the early stages of emphysema and must be careful with 
 
         exposure to sun and other elements since grafted skin has an 
 
         increased incidence of skin cancer.  Dr. Foster testified, when 
 
         reviewing the pictures found in claimant's exhibit 12, that 
 
         claimant's condition will not improve and that although there 
 
         might be some additional procedures available in the future with 
 
         regard to the condition of his mouth and eyelids, what is 
 
         currently available is very minimal and will provide him very 
 
         little, if any, improvement in his cosmetic condition.
 
         
 
              Anita Howell, who identified herself as the manager of 
 
         Crawford Health and Rehabilitation Services in Omaha, Nebraska, 
 
         which is a direct private rehabilitation office providing medical 
 
         management, rehabilitation assessment, and guidance in job 
 
         placement services to disabled individuals, testified she was 
 
         asked by claimant's counsel to meet with claimant to evaluate 
 
         claimant's status with regard to his employability.  Ms. Howell 
 

 
         
 
         
 
         
 
         SEIEROE V. E. E. WRIGHT
 
         PAGE   4
 
         
 
         
 
         explained she reviewed the medical records, the records from 
 
         Karen Stricklett, a vocational rehabilitation counselor who had 
 
         been employed by defendants to work on the case, and personally 
 
         interviewed claimant to come to the conclusion that although 
 
         claimant has transferable skills from his previous employment he 
 
         is "unable to be employed as a result of his injury since he 
 
         "does not have the physical capabilities necessary to utilize 
 
         these skills."  Ms. Howell stated that claimant could not be 
 
         productive over an eight hour period of time and that the 
 
         necessity of taking breaks after only approximately fifteen 
 
         minutes work eliminates even sedentary work as an alternative to 
 
         claimant.  Ms. Howell opined that because of claimant's 
 
         capabilities or lack thereof neither relocation nor work 
 
         hardening would enhance claimant's employability and that even 
 
         though claimant has the mental capacity to further his education 
 
         it would take him so long to complete the education that it still 
 
         would not improve his opportunities.  Ms. Howell testified that 
 
         claimants activities in gunsmithing are most appropriate since 
 
         that is something he enjoys, that allows him to be self-employed, 
 
         that allows him to work at his own pace, and on his own schedule.  
 
         Ms. Howell concluded that there is no employment in "this" area 
 
         that claimant could attain and maintain.
 
         
 
              Gene Wright, who identified himself as the defendant 
 
         employer in this matter, testified that claimant was paid on the 
 
         basis of $1000 per month and that although there was not a policy 
 
         of giving meat to employees, employees were entitled to take all 
 
         the meat they needed.  Mr. Wright explained that there was no 
 
         record kept of how much meat claimant might have taken but 
 
         estimated that over a year's period of time it might have been 
 
         one-half to three-quarters of a beef worth $300 to $400.
 
         
 
              Steven V. Fisher, M.D., staff physician of the Ramsey 
 
         Clinic, Department of Physical Medicine and Rehabilitation, saw 
 
         claimant on July 9, 1987 for an independent medical examination 
 
         and, in conjunction with Lynn Solem, M.D., director of Ramsey 
 
         Clinic burn center, opined:
 
         
 
                 With his cosmetic appearance and his difficulty in 
 
              meeting the public, it would seem that the only type of 
 
              employment for this man would be a very sedentary desk 
 
              type job with few public contacts.  Any type of even 
 
              light work causes this man to "overheat" and he is not 
 
              able to perform his duties.
 
         
 
                 A specific percent of impairment rating, based on 
 
              the Skin Chapter of the Guides to the Evaluation of 
 
              Permanent Impairment of the American Medical 
 
              Association, was calculated.  His impairment is based 
 
              on his sensitivity to heat, cold and sunlight, his 
 
              decreased durability of the skin, his need for 
 
              moisturization of the skin and his decreased sensation 
 
              over all grafted and scarred areas.  Disfigurement as 
 
              such is not rated.  It is my opinion that he has a 50% 
 
              whole man impairment, secondary to his termal burn.
 
         
 
                 For the reasons mentioned above, however, without 
 
              significant ,vocational intervention and possible 
 
              vocational retraining, it is my opinion that this man 
 
              is "totally" disabled.  However, this man appears very 
 
              pleasant, motivated, articulate, with good judgement 
 
              and therefore would seem to have transferable skills 
 
              and could be potentially vocationally rehabilitated 
 

 
         
 
         
 
         
 
         SEIEROE V. E. E. WRIGHT
 
         PAGE   5
 
         
 
         
 
              given the restrictions mentioned above.
 
         
 
         (Joint Exhibit 10, pages 4-5)
 
         
 
              Stanley A. Bloustine, M.D., examined claimant on or about 
 
         May 12, 1986 and stated:
 
         
 
                 I think it is highly unlikely that Mr. Seieroe will 
 
              ever get significantly better in terms of sun and heat 
 
              sensitivity.  Therefore, I do not think he will ever be 
 
              able to do heavy manual labor or be out in the sun for 
 
              any length of time at all.  Also the extent of his burn 
 
              scars are certainly consistent with his symptoms of 
 
              heat intolerance and inability to sweat much.  AGain 
 
              [sic] it is highly unlikely that it will ever improve.  
 
              Therefore, any heavy manual labor with a lot of 
 
              sweating is probably not possible for him.  He could 
 
              have scar revisions of the left side of his mouth to 
 
              try to improve that, but this is certainly a minor part 
 
              of his problems.
 
         
 
                 Therefore, I do believe Mr. Seiere either has to be 
 
              considered disabled or will need to be retrained for 
 
              light indoor work where he can remain in a cool, air 
 
              conditioned environment without a lot of sun exposure.
 
         
 
         (Jt. Ex. 9)
 
         
 
              On February 22, 1988, Harold L. Ganzhorn, M.D., of Maple 
 
         Valley Medical Clinic, stated:
 
         
 
                 Mr. Dale Seieroe has trouble with hypertension and 
 
              needs to take medicine for the same.
 
         
 
                 I think one of the main causes of his hypertension 
 
              is the amount of scar tissue he has over his body which 
 
              interferes with his evaporation.  Also the shock he 
 
              went through following this accident I think is also 
 
              contributory.
 
         
 
         
 
         (Jt. Ex. 11, p. 2)
 
         
 
                                  APPLICABLE LAW
 
         
 
              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(l).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Iowa Code section 85.36 provides, in part:
 
         
 
                 The basis of compensation shall be the weekly 
 
              earnings of the injured employee at the time of the 
 

 
         
 
         
 
         
 
         SEIEROE V. E. E. WRIGHT
 
         PAGE   6
 
         
 
         
 
              injury.  Weekly earnings means gross salary, wages, or 
 
              earnings of an employee to which such employee would 
 
              have been entitled had the employee worked the 
 
              customary hours for the full pay period in which the 
 
              employee was injured, as regularly required by the 
 
              employee's employer for the work or employment for 
 
              which the employee was employed, computed or determined 
 
              as follows and then rounded to the nearest dollar:
 
         
 
                 ....
 
         
 
              4.  In the case of an employee who is paid on a monthly 
 
              pay basis, the monthly gross earnings multiplied by 
 
              twelve and subsequently divided by fifty-two.
 
         
 
                                 ANALYSIS
 
         
 
              As the parties do not dispute claimant sustained an injury 
 
         which arose out of and in the course of his employment or that 
 
         the injury is the cause of both temporary and permanent 
 
         disability, it is necessary to consider only the issue of the 
 
         extent of disability which includes the related issue of whether 
 
         or not claimant is an odd-lot employee as contemplated by Guyton 
 
         v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 

 
         
 
         
 
         
 
         SEIEROE V. E. E. WRIGHT
 
         PAGE   7
 
         
 
         
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
          Neither does a rating of functional impairment directly 
 
         correlate to a degree of industrial disability to the body as a 
 
         whole.  In other words, there are no formulae which can be 
 
         applied and then added up to determine the degree of industrial 
 
         disability.  It therefore becomes necessary for the deputy to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Under the odd-lot doctrine, which was formally adopted by 
 
         the Iowa Supreme Court in Guyton, supra, a worker becomes an 
 
         odd-lot employee when an injury makes the worker incapable of 
 
         obtaining employment in any well-known branch of the labor 
 
         market.  An odd-lot worker is thus totally disabled if the only 
 
         services the worker can perform are so limited in quality, 
 
         dependability, or quantity that a reasonably stable market for 
 
         them does not exist.  Id., citing Lee v. Minneapolis Street 
 
         Railway Company, 230 Minn.315, 320, 41 N.W.2d 433, 436 (1950).  
 
         The rule of odd-lot allocates the burden of production of 
 
         evidence.  If the evidence of degree of obvious physical 
 
         impairment, coupled with other facts such as claimant's mental 
 
         capacity, education, training or age, places claimant prima facie 
 
         in the odd-lot category, the burden should be on the employer to 
 

 
         
 
         
 
         
 
         SEIEROE V. E. E. WRIGHT
 
         PAGE   8
 
         
 
         
 
         show that some kind of suitable work is regularly and 
 
         continuously available to the claimant.  Certainly in such a case 
 
         it should not be enough to show that claimant is physically 
 
         capable of performing light work and then round out the case for 
 
         non-compensable by adding a presumption that light work is 
 
         available.  Guyton, 373 N.W.2d at 105.
 
         
 
              When a worker makes a prima facie case of total disability 
 
         by producing substantial evidence that the worker is not 
 
         employable in the competitive labor market, the burden to produce 
 
         evidence of suitable employment shifts to the employer.  If the 
 
         employer fails to produce such evidence and the trier of fact 
 
         finds the worker falls in the odd-lot category, the worker is 
 
         entitled to a finding of total disability.  Even under the 
 
         odd-lot doctrine, the trier of fact is free to determine the 
 
         weight and credibility of the evidence in determining whether the 
 
         worker's burden of persuasion has been carried. only in an 
 
         exceptional case would evidence be sufficiently strong to compel 
 
         a finding of total disability as a matter of law.  Guyton 373 
 
         N.W.2d at 106.  The court went on to state:
 
         
 
                 The commissioner did not in his analysis address any 
 
              of the other factors to be considered in determining 
 
              industrial disability.  Industrial disability means 
 
              reduced earning capacity.  Bodily impairment is merely 
 
              one factor in a gauging industrial disability.  Other 
 
              factors include the worker's age, intelligence, 
 
              education, qualifications, experience, and the effect 
 
              of the injury on the worker's ability to obtain 
 
              suitable work.  See Doerfer Division of CCA v. Nicol, 
 
              359 N.W.2d 428, 438 (Iowa 1984).  When the combination 
 
              of factors precludes the worker from obtaining regular 
 
              employment to earn a living, the worker with only a 
 
              partial functional disability has a total disability. 
 
              See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 
 
              (Iowa 1980).
 
         
 
              In Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 
 
         (1935) the court, addressing the issue of the meaning of 
 
         disability stated:
 
         
 
                 What is "permanent total disability"?  Does this 
 
              clause refer to "functional disability" or to 
 
              "industrial disability"?
 
         
 
                 For clearness we shall use the term "industrial 
 
              disability" as referring to disability from carrying on 
 
              a gainful occupation--inability to earn wages.  By 
 
              "functional disability" we shall refer to the 
 
              disability to perform one or more of the physical 
 
              movements which a normal human being can perform.
 
         
 
                 ....
 
         
 
                 It is obvious that "disability" here used cannot 
 
              refer to mere "functional disability.......
 
         
 
                 It is ... plain that the legislature intended the 
 
              term "disability" to mean "industrial disability" or 
 
              loss of earning capacity and not a mere "functional 
 
              disability" to be computed in terms of percentages of 
 
              the total physical and mental ability of a normal man.
 
                 ....
 

 
         
 
         
 
         
 
         SEIEROE V. E. E. WRIGHT
 
         PAGE   9
 
         
 
         
 
              ... [T]he Compensation Law was passed for the purpose 
 
              of compensating the working man when injured.  The loss 
 
              which this claimant suffered due to the injury which he 
 
              received while in the employ of the company is the 
 
              inability to carry on the work he was doing prior to 
 
              the time of the injury, or any work which he could 
 
              perform.  This man at fifty-nine years of age, after 
 
              thirty years as a street car motorman, with little 
 
              education, cannot find or hold a position that would 
 
              not require some manual labor, and, of course, due to 
 
              the condition of his back, he cannot perform such work. 
 
               To say that he might become a stenographer or a lawyer 
 
              or a clerk or a bookkeeper is to suppose the 
 
              impossible, for a fifty-nine-year old man, with no 
 
              education, is not capable of securing or filling any 
 
              such position.  His disability may be only a 
 
              twenty-five or thirty per cent disability compared with 
 
              the one hundred per cent perfect man, but, from the 
 
              standpoint of his ability to go back to work to earn a 
 
              living for himself and his family, his disability is a 
 
              total disability, for he is not able to again operate 
 
              the street car and perform the work which the company 
 
              demanded of him prior to the time of the accident.
 
         
 
              While claimant asserts the applicability of the odd-lot 
 
         doctrine, it is concluded that whether or not claimant is an 
 
         odd-lot employee under Guyton is irrelevant to this case as the 
 
         evidence presented establishes claimant is permanently and 
 
         totally disabled under the principles recited in Diederich.
 
         
 
              Dr. Foster has reported that because of the extensive burns 
 
         and inhalation injury claimant sustained on February 7, 1980, 
 
         claimant's pulmonary status, i.e., decrease the capacity of his 
 
         lungs, and his markedly reduced capacity to regulate his body 
 
         temperature will not change.  Claimant needs a climate/ 
 
         environmentally controlled work atmosphere and work which will 
 
         allow him to rest frequently throughout the day.  Dr. Foster was 
 
         emphatic that as a result of claimant's injuries claimant does 
 
         not have the physical capabilities necessary to sustain normal 
 
         work activities and that claimant is permanently and totally 
 
         disabled from gainful employment.  The undersigned does not find 
 
         any bona fide dispute [with Dr. Foster's conclusion] in any of 
 
         the other medical records .
 
         
 
              Claimant is currently 42 years old and was 33 at the time of 
 
         his injury.  Claimant's work history is primarily that of a 
 
         laborer which required a sustained physical effort on his part.  
 
         Clearly, as a result of his injuries, claimant has been precluded 
 
         from this type of employment.  Claimant has a farm management 
 
         degree and, as Anita Howell correctly pointed out, while claimant 
 
         does have some transferable skills, claimant does not have the 
 
         physical capabilities necessary to utilize these transferable 
 
         skills particularly because of his inability to work over any 
 
         sustained period of time.  Claimants limitations are clearly as a 
 
         result of his injuries.  Relocation will not enhance claimant's 
 
         employability as his employability is not directly related to the 
 
         area in which he lives.
 
         
 
              In approximately 1982, claimant opened a gun shop in his 
 
         home and advertised his services as a gunsmith.  In addition to 
 
         the work he does in his home, claimant travels to some gun shows 
 
         throughout the area.  Defendants argue that because of this, 
 
         claimant is employable.  However, the record is undisputed that 
 

 
         
 
         
 
         
 
         SEIEROE V. E. E. WRIGHT
 
         PAGE  10
 
         
 
         
 
         claimant has not earned any profit or any regular wages from this 
 
         endeavor.  After reviewing the evidence, the undersigned agrees 
 
         with claimant's assessment that this activity is more in the 
 
         nature of a hobby rather than a true vocation or job.  A finding 
 
         that there is some work that claimant could do with the physical 
 
         and educational limitations he has does not foreclose a finding 
 
         of permanent total disability.  Eastman v. Westway Trading 
 
         Corporation, II Iowa Industrial Commissioner Reports 134 (Appeal 
 
         Decision 1982).  See also Chamberlin v. Ralston Purina, Appeal 
 
         Decision filed October 29, 1987.
 
         
 
              Claimant established to the satisfaction of the undersigned 
 
         that he is capable of working for only 15 to 30 minutes before 
 
         requiring rest and that he rests for approximately four hours 
 
         throughout what might be considered a normal workday.  Because of 
 
         the massive loss of skin, claimant does not have a thermal 
 
         regulator and is consequently required to carefully maintain his 
 
         living/working environment.  Claimant must be sensitive to all of 
 
         life's stressors particularly because of his injuries.  While 
 
         claimant clearly has the mental ability to complete retraining 
 
         and/or further his education, such would take very long to 
 
         complete because of the fatigue factor and still may not improve 
 
         his employment opportunities.  Given the above, claimant has 
 
         established that he is permanently and totally disabled from 
 
         employment during the period of his disability.  See Iowa Code 
 
         section 85.34(3). It is not necessary to further evaluate 
 
         claimant's status or disability under the Guyton factors.  
 
         However, even if the principles of Guyton were applicable, 
 
         claimant would be a worker incapable of obtaining employment in 
 
         any well-known branch of the labor market.  Claimant is totally 
 
         disabled under Guyton in that the only services claimant can 
 
         perform are so limited in quality, dependability, or quantity 
 
         that a reasonably stable market for them does not exist.
 
         
 
              Also disputed is claimant's entitlement to certain medical 
 
         benefits under Iowa Code section 85.27, particularly with regard 
 
         to treatment for his high blood pressure.  This issue, however, 
 
         was not listed as an issue on the hearing assignment order and, 
 
         accordingly, the undersigned is without jurisdiction to consider 
 
         it.  See Joseph Presswood v. Iowa Beef Processors, (Appeal 
 
         Decision filed November 14, 1986) holding an issue not noted on 
 
         the hearing assignment order is an issue that is waived.
 
         
 
              The final issue for resolution is the appropriate rate of 
 
         compensation.  The parties agree that claimant was paid on the 
 
         basis of $1000 per month.  Therefore, according to Iowa Code 
 
         subsection 85.36(4), claimant's earnings would be multiplied by 
 
         12 and divided by 52 leaving a gross weekly wage of $230.77.  
 
         However, although the parties cannot agree on any value, they do 
 
         agree that claimant was also entitled to all of the meat he 
 
         wanted.  Under Hoth v.Irvin Eilors, I Iowa Industrial 
 
         Commissioner Report 156 (Appeal Decision 1980) claimant is 
 
         entitled to have the value of this considered in arriving at his 
 
         weekly rate of compensation.  Claimant estimated the value of the 
 
         meat to be $25 per week while defendants estimated the value at 
 
         $300 or $400 over the course of the year.  Since defendant 
 
         employer candidly acknowledged no record was kept of how much 
 
         meat claimant was given and that he had "no idea" how much it 
 
         was, the value placed on the meat by claimant will be accepted.  
 
         In light of defendants' lack of records and knowledge, claimant 
 
         is considered to have been in a better position to know the value 
 
         of this job benefit.  Claimant was single at the time of his 
 
         injury and had two dependents as defined by Iowa Code ,section 
 

 
         
 
         
 
         
 
         SEIEROE V. E. E. WRIGHT
 
         PAGE  11
 
         
 
         
 
         85.42.  Therefore, claimant with a gross weekly wage of $255.77 
 
         ($230.77 plus $25) and three exemptions is entitled to a rate of 
 
         compensation of $156.03 per week.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained personal injuries which arose out of 
 
         and in the course of his employment on February 7, 1980 when a 
 
         fire erupted in the shop he was cleaning.
 
         
 
              2.  Claimant sustained third degree burns over 70 percent of 
 
         his body and an inhalation injury resulting in damage to his 
 
         pulmonary system.
 
         
 
              3.  Claimant was hospitalized for 80 days during which he 
 
         underwent seven surgical procedures and, since his 
 
         hospitalization, has undergone another 13 to 18 procedures.
 
         
 
              4.  Claimant has sustained a loss of over 50 percent of his 
 
         body skin and, since the skin is the major thermal regulator, 
 
         claimant has an intolerance to heat and cold and must be 
 
         climate/environment conscious at all times.
 
         
 
              5.  The damage claimant has sustained to his body is not 
 
         possible to overcome and may get worse.
 

 
         
 
         
 
         
 
         SEIEROE V. E. E. WRIGHT
 
         PAGE  12
 
         
 
         
 
         
 
              6.  Claimant does not have the physical capability necessary 
 
         to sustain any extended work effort.
 
         
 
              7.  Claimant is able to work approximately 15 to 30 minutes 
 
         before requiring rest and rests approximately four hours 
 
         throughout what might be considered a normal work day.
 
         
 
              8.  Claimant, age 42, with a high school education and a 
 
         degree in farm management, has earned his living primarily as a 
 
         laborer and is precluded from doing such work as a result of his 
 
         injuries.
 
         
 
              9.  Claimant has transferable skills but does not have the 
 
         physical capabilities necessary to utilize such skills.
 
         
 
             10.  Claimant currently owns and operates a gunsmith business 
 
         which is more in the nature of a hobby but which allows him to 
 
         remain in a climate controlled environment and also allows him to 
 
         rest as frequently as necessary
 
         
 
             11.  Claimant is permanently and totally disabled.
 
         
 
             12.  Claimant earned $1000 per month at the time of his 
 
         injury and was entitled to all the meat he wanted which is valued 
 
         at $25 per week.
 
         
 
             13.  Claimant has a gross weekly wage of $255.77 [($1000 
 
         times 12) divided by 52 plus $25], was single at the time of his 
 
         injury and has two dependents.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant is permanently and totally disabled as a result 
 
         of the injury sustained February 7, 1980.
 
         
 
              2.  Claimant has established the appropriate rate of 
 
         compensation is $156.03.per week.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant permanent total 
 
         disability benefits during the period of his disability at the 
 
         applicable rate of one hundred fifty-six and 03/100 dollars 
 
         ($156.03) per week commencing January 23, 1984.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file claim activity reports as required by 
 
         the division pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 26th day of September, 1988.
 

 
         
 
         
 
         
 
         SEIEROE V. E. E. WRIGHT
 
         PAGE  13
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          DEBORAH A. DUBIK
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Michael P. Jacobs
 
         Attorney at Law
 
         300 Toy National Bank Bldg
 
         Sioux City, IA 51101
 
         
 
         Mr. David E. Vohs
 
         Attorney at Law
 
         340 Insurance Ctr, Ste 340
 
         507 7th St
 
         Sioux City, IA 51101
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1804; 4100
 
                                               Filed September 26, 1988
 
                                               Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DALE H. SEIEROE,
 
         
 
              Claimant,
 
                                                 File No. 626224
 
         vs.
 
         
 
         E. E. WRIGHT,                        A R B I T R A T I O N
 
         
 
              Employer,                          D E C I S I O N
 
         
 
         and
 
         
 
         TRI-STATE INSURANCE COMPANY
 
         OF MINNESOTA
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1804; 4100
 
         
 
              Claimant sustained third degree burns over 70% of his body 
 
         and an inhalation injury when a fire erupted in the shop he was 
 
         cleaning.  Claimant established his entitlement to permanent 
 
         total disability benefits without the necessity of resorting to 
 
         the applicability of Guyton.