BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JUDY HARRIS,
 
        
 
            Claimant,                   File Nos. 688326
 
                                                   808328
 
        vs.
 
        
 
        WILSON FOODS CORPORATION,         A P P E A L
 
        
 
            Employer,                  D E C I S I O N
 
            Self-Insured,
 
        
 
        and
 
        
 
        SECOND INJURY FUND,
 
        
 
            Defendants.
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants Wilson Foods and the Second Injury Fund appeal from an 
 
        arbitration decision awarding permanent partial disability 
 
        benefits based upon a six percent impairment to the right upper 
 
        extremity from an injury on December 17, 1981, a three percent 
 
        impairment to the left upper extremity from an injury on October 
 
        5, 1983, and a 20 percent industrial disability.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing; claimant's exhibit l; and defendants' 
 
        exhibits A through F. All parties filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
        Defendant Wilson Foods Corporation states the following issues on 
 
        appeal:
 
        
 
        1. Whether the evidence supports the finding of 6% permanent 
 
        partial impairment to the right upper extremity and 3% permanent 
 
        partial impairment to the left upper extremity.
 
        
 
        2. Whether the finding of industrial disability in the amount of 
 
        20% is supported by the evidence.
 
        
 
        3. Whether the Deputy Commissioner correctly determined the 
 
        injury dates as a matter of law under McKeever Custom Cabinets v. 
 
        Smith.
 
        
 
        HARRIS V. WILSON FOODS CORPORATION
 
        Page 2
 
        
 
        
 
        Defendant Second Injury Fund states the following issues on 
 
        appeal:
 
        
 
        The deputy erred in finding a "second injury" in November 1985 
 
        and April of 1986.
 
        
 
        The deputy industrial commissioner erred in finding there was a 
 
        second injury at Wilson Foods Corporation.
 
        
 
        The deputy industrial commissioner erred in finding that the fund 
 

 
        
 
 
 
 
 
        has liability because claimant suffered her alleged injuries, if 
 
        any, by the same employer.
 
        
 
        Fund benefits are unavailable to claimant because there is no 
 
        evidence of any industrial disability.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be totally reiterated herein.
 
        
 
        Claimant started working for defendant employer on September 8, 
 
        1980 on a job "splitting heads." Her job required gripping and 
 
        pulling. Claimant performed other jobs for defendant employer all 
 
        of which involved repetitive gripping and pulling. An October 15, 
 
        1981 entry in claimant's employee medical department records 
 
        reveals that claimant was experiencing bilateral hand pain and 
 
        numbness. See Defendants' Exhibit D, page 11. Claimant continued 
 
        to experience pain in both hands and eventually sought treatment 
 
        from Warren N. Verdeck, M.D., on November 24, 1981. In his 
 
        initial examination notes, Dr. Verdeck states:
 
        
 
        11-24-81: This is a 37 year old woman who works down at Wilsons, 
 
        currently in the ruffling department. Comes in for complaints of 
 
        aching pain in both hands and wrists associated with numbness and 
 
        tingling. This has been going on now for about two months. She 
 
        had been laid off, returned to work shortly before the onset of 
 
        her symptoms a couple of months ago. Since then she's continued 
 
        to have the above complaints. They are not particularly relieved 
 
        by being off work or a change of her particular job duties. She 
 
        complains of well localized numbness and tingling to the radial 
 
        three and a half digits of both hands especially noticeable [sic] 
 
        on the right. They frequently awaken her at night. She shakes 
 
        them, rubs them, tries to get them to wake up. She's also had a 
 
        lump on the dorsum of the right wrist now for a year or so.
 
        
 
        HARRIS V. WILSON FOODS CORPORATION
 
        Page 3
 
        
 
        
 
        This had been a little more symptomatic lately, has been more 
 
        swollen the past couple of weeks.
 
        
 
        EXAMINATION: Reveals full range of motion of both wrists. There 
 
        is some crepitation, however, over the dorsum of the right wrist 
 
        and a palpable mass approximately one centimeter in diameter 
 
        which is minimally tender. She has good distal pulses, no atrophy 
 
        is noted. Full range of motion of the neck and she has no neck or 
 
        upper arm complaints. She has a negative Tinel's but quite 
 
        positive Phelan's bilaterally and decreased sensation to the 
 
        radial three and a half digits of both hands.
 
        
 
        X-ray of the right wrist reveals no bony abnormalities or 
 
        calcifications.
 
        
 
        She appears to have a pretty classic carpal tunnel syndrome 
 
        bilaterally, more symptomatic on the right.
 
        
 
        We'll schedule her for an EMG and would expect we'll end up 
 
        having to do a bilateral carpal tunnel release. Also we may be 
 
        able to excise the ganglion on the dorsum of the right wrist at 
 
        that time. We'll see her following the EMG.
 
        
 
        (Defendants' Exhibit B, page 5)
 
        
 
        The EMG analysis was performed on the same day by B. R. Nichols, 
 

 
        
 
 
 
 
 
        M.D. Dr. Nichols opines in his report:
 
        
 
        ASSESSMENT:
 
        
 
        1. Severe right carpal tunnel syndrome by electrophysiologic 
 
        analysis.
 
        
 
        2. No clearcut [sic] evidence for left carpal tunnel syndrome 
 
        electrophysiologically, although it, of course, is very likely 
 
        that she is brewing the same thing in left side but has not 
 
        damaged the median nerve yet.
 
        
 
        (Def. Ex. A, p. 3)
 
        
 
        Dr. Verdeck reports in his following note of December 4, 1981:
 
        
 
        12/4/81 Judy returns for follow up. Her EMG revealed severe right 
 
        carpal tunnel syndrome, the left side was OK. She would like to 
 
        go ahead and
 
        
 
        HARRIS V. WILSON FOODS CORPORATION
 
        Page 4
 
        
 
        
 
        have this taken care of. Also, she has a ganglion over the 
 
        dorsum of the right wrist so we will go ahead and do that at the 
 
        same time. She would like to hold off having anything done on 
 
        the left side for the time being and she seems to be getting 
 
        along fairly well with this. I think we can wait. Will schedule 
 
        her for right carpal tunnel release and excision of ganglion over 
 
        the dorsum of the right wrist.
 
        
 
        (Def. Ex. B, p. 5)
 
        
 
        Claimant underwent surgery on December 17, 1981 for carpal tunnel 
 
        release and excision of ganglion on the right wrist. Claimant 
 
        returned to work without any restrictions on January 8, 1982. 
 
        Numerous entries in claimant's employee medical records disclose 
 
        that in 1982 and 1983 she continued to experience bilateral hand 
 
        pain and numbness more severe on the left. Claimant was off work 
 
        in the summer of 1983 during a strike. Claimant went to see L.C. 
 
        Strathman, M.D., after her return to work from the strike. Dr. 
 
        Strathman states in an October 5, 1983 clinical note:
 
        
 
        10-5-83: She's getting increasing symptoms of median nerve 
 
        compression on the left. It's troublesome after work and 
 
        troublesome at night, numbness and tingling are a problem.
 
        
 
        She doesn't show any thenar atrophy. She's had good results with 
 
        the procedure on the right side.
 
        
 
        We'll schedule her for median nerve release on the left as an 
 
        outpatient.
 
        
 
        (Def. Ex. B, p. 6)
 
        
 
        Dr. Strathman released claimant for return to work with no 
 
        restrictions on November 17, 1983. With respect to impairment, 
 
        Dr. Strathman opines in a February 13, 1985 letter:
 
        
 
        
 
        As we have stated in previous correspondence, this lady's 
 
        findings are essentially negative although she continues to 
 
        complain of difficulty opening fruit jars, etc. We repeated her 
 
        EMGs in November, 1984 and they were reported as normal. Her 
 
        wound is well healed and there is no restriction of motion about 
 

 
        
 
 
 
 
 
        the wrist.
 
        
 
        HARRIS V. WILSON FOODS CORPORATION
 
        Page 5
 
        
 
        
 
        As you see from the above there is no objective evidence of 
 
        permanent impairment except for the scar associated with the 
 
        volar carpal ligament release. The complaints are subjective and 
 
        at this time I do not feel that numerical impairment rating is 
 
        indicated.
 
        
 
        (Def. Ex. B, p. 1)
 
        
 
        With respect to whether claimant had bilateral carpal tunnel 
 
        syndrome in 1981, Dr. Verdeck opines in a June 23, 1986 letter:
 
        
 
        I have reviewed the chart on Judy Harris. I had seen her back in 
 
        November and December, 1981. At that time, I felt that she had a 
 
        classic carpal tunnel syndrome, bilateral, more symptomatic on 
 
        the right. Her EMG, however, was positive only on the right side.
 
        
 
        She apparently had increasing symptoms of medical nerve 
 
        compression on the left after that, and in 1983 had the left side 
 
        released.
 
        
 
        I feel that she had a bilateral carpal tunnel syndrome when I saw 
 
        her in 1981 and that this had worsened to the point that surgery 
 
        was required in 1983. This was likely not a new injury.
 
        
 
        (Def. Ex. B, p. 20)
 
        
 
        Claimant was examined by John R. Walker, M.D., on October 12, 
 
        1984. Dr. Walker opines regarding the extent of impairment 
 
        claimant suffers in a March 25, 1985 letter:
 
        
 
        OPINION: I believe that this patient still has some impairment of 
 
        the right, upper extremity. This would amount to a 12% 
 
        impairment of the right, upper extremity. As far as the left, 
 
        upper extremity is concerned, it is my opinion that she has a 
 
        permanent, partial impairment of 6% of the left, upper extremity.
 
        
 
        At this point I have no further suggestions for treatment except 
 
        for her to avoid heavy strain and also to use hot soaks on a PRN 
 
        basis.
 
        
 
        (Claimant's Exhibit 1, page 1)
 
        
 
        In a subsequent letter, Dr. Walker relates claimant's bilateral 
 
        carpal tunnel syndrome to her employment:
 
        
 
        HARRIS V. WILSON FOODS CORPORATION
 
        Page 6
 
        
 
        
 
        The answer to number one: It is my opinion that this patients 
 
        [sic] bilateral carpal tunnel and/or tenosynovitis problems were 
 
        aggravated by Mrs. Harris's [sic] working in the ruffling 
 
        department at Wilson Foods, Inc.
 
        
 
        (Cl. Ex. 1, p. 2)
 
        
 
        Apparently, the ownership of the packing plant where claimant 
 
        worked changed from Wilson Foods Corporation to Farmstead Foods 
 
        on July 2, 1984. Claimant has continued to experience problems 
 
        with her hands since the carpal tunnel surgeries through the 
 

 
        
 
 
 
 
 
        present time. Dr. Walker describes claimant's present condition 
 
        and opines as to causal connection in a July 30, 1986 note:
 
        
 
        This patient is going to end up really a cripple as far as work 
 
        is concerned. I have seen this before and she is going to have 
 
        extreme problems. I have tried to warn them at Farmstead to get 
 
        her on something she can handle and not to push it. At the 
 
        present time she has the following diagnoses:
 
        
 
        1.) Recurrent ganglion, right wrist.
 
        
 
        2.) Tenosynovitis of both forearm flexor musculature, 
 
        particularly on the right.
 
        
 
        3.) Trigger fingers, involving the right third and fourth digits.
 
        
 
        4.) Trigger fingers, involving the left third and fourth digits.
 
        
 
        5.) Probable, bilateral recurrence of carpal tunnel syndrome, 
 
        involving the median nerve of both hands.
 
        
 
        6.) Probable early ulnar nerve entrapment syndrome of both 
 
        wrists.
 
        
 
        All of the above are due to the repetitive work that this patient 
 
        is doing at Farmstead now.
 
        
 
        (Cl. Ex. 1, p. 11)
 
        
 
        Claimant has been treated for the conditions described by Dr. 
 
        Walker by Walter J. Hales, M.D. Dr. Hales opines that these 
 
        problems are not related to the earlier carpal tunnel surgeries:
 
         
 
        HARRIS V. WILSON FOODS CORPORATION
 
        Page 7
 
        
 
        
 
        I have been asked, as a recently treating physician for Mrs. 
 
        Harris, if the present ongoing hand problem that she has been 
 
        having is related to previous carpal tunnel releases done while 
 
        she was in the employ of Wilson Foods. It is my professional 
 
        opinion that her present problems are not related to her previous 
 
        carpal tunnel releases and would not expect them to be. She on 
 
        one occasion complained of some symptoms that would have been 
 
        consistent possibly, with a carpal tunnel syndrome but these have 
 
        not been recent complaints and not her ongoing complaints at 
 
        present.
 
        
 
        (Def. Ex. C, p. 1)
 
        
 
                                 APPLICABLE LAW
 
        
 
        The "cumulative injury rule" may apply when disability develops 
 
        over a period of time. The compensable injury is held to occur at 
 
        the later time. For time limitation purposes, the injury in such 
 
        cases occurs when, because of pain or physical disability, the 
 
        claimant can no longer work. McKeever Custom Cabinets v. Smith, 
 
        379 N.W.2d 368 (Iowa 1985).
 
        
 
        The manifestation of one injury on two occasions does not 
 
        necessarily qualify a worker for second injury fund benefits 
 
        under section 85.64, Code of Iowa. McMurrin v. Quaker Oats 
 
        Company, 1 Iowa Industrial Commissioner Report 222 (Appeal 
 
        Decision, April 28, 1981).
 
        
 
        Iowa Code section 85.64 provides, in part:
 

 
        
 
 
 
 
 
        
 
        If an employee who has previously lost, or lost the use of, one 
 
        hand, one arm, one foot, one leg, or one eye, becomes permanently 
 
        disabled by a compensable injury which has resulted in the loss 
 
        of or loss of use of another such member or organ, the employer 
 
        shall be liable only for the degree of disability which would 
 
        have resulted from the latter injury if there had been no 
 
        pre-existing disability. In addition to such compensation, and 
 
        after the expiration of the full period provided by law for the 
 
        payments thereof by the employer, the employee shall be paid out 
 
        of the "Second Injury Fund" created by this division the 
 
        remainder of such compensation as would be payable for the degree 
 
        of permanent disability involved after first deducting from such 
 
        remainder the compensable value of the previously lost member or 
 
        organ.
 
        
 
        The right of a worker to receive compensation for injuries 
 
        sustained which arose out of and in the course of employment
 
        
 
        HARRIS V. WILSON FOODS CORPORATION
 
        Page 8
 
        
 
        
 
        is statutory. The statute conferring this right can also fix the 
 
        amount of compensation to be paid for different specific 
 
        injuries, and the employee is not entitled to compensation except 
 
        as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 
 
        268 N.W. 598 (1936).
 
        
 
        Permanent partial disabilities are classified as either scheduled 
 
        or unscheduled. A specific scheduled disability is evaluated by 
 
        the functional method; the industrial method is used to evaluate 
 
        an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 
 
        128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 
 
        331 N.W.2d 116 (Iowa 1983); Simbro, 332 N.W.2d 886, 887.
 
        
 
        An injury is the producing cause; the disability, however, is the 
 
        result, and it is the result which is compensated. Barton v. 
 
        Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey 
 
        v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
        
 
        When the result of an injury is loss to a scheduled member, the 
 
        compensation payable is limited to that set forth in the 
 
        appropriate subdivision of Iowa Code section 85.34(2). Barton, 
 
        253 Iowa 285, 110 N.W.2d 660.
 
        
 
        "Loss of use" of a member is equivalent to "loss" of the member. 
 
        Moses v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 
 
        (1921).
 
        
 
        The claimant has the burden of proving by a preponderance of the 
 
        evidence that the injuries of December 17, 1981 and October 7, 
 
        1983 are causally related to the disability on which she now 
 
        bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
        N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 
 
        607 (1945). A possibility is insufficient; a probability is 
 
        necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
        691, 73 N.W.2d 732 (1955). The question of causal connection is 
 
        essentially within the domain of expert testimony. Bradshaw v. 
 
        Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
        
 
                                      ANALYSIS
 
        
 
        The first general issue to be resolved is when the injuries in 
 
        this matter occurred. In McKeever, the supreme court adopted the 
 
        "cumulative injury" rule for Iowa, and determined that liability 
 

 
        
 
 
 
 
 
        could exist for disability which gradually came about over a 
 
        period of time. The injury occurs when, because of pain or 
 
        physical disability, the claimant can no longer work. In the 
 
        instant case one reason that claimant missed work was for her 
 
        complaints of her right hand. The 1981 EMG test revealed
 
        
 
        HARRIS V. WILSON FOODS CORPORATION
 
        Page 9
 
        
 
        
 
        that she had severe right carpal tunnel syndrome and no clear-cut 
 
        evidence for left carpal tunnel syndrome. While Dr. Verdeck's 
 
        opinion was that claimant had bilateral carpal tunnel syndrome 
 
        more symptomatic on the right in 1981, he acknowledged that her 
 
        EMG was positive only on the right side. The EMG confirms Dr. 
 
        Verdeck's opinion that claimant had carpal tunnel syndrome on the 
 
        right side. However, the EMG showed that there was no clear-cut 
 
        condition on the left side. The injury that claimant suffered in 
 
        1981 was carpal tunnel syndrome on the right side and the date of 
 
        injury was December 17, 1981 when claimant underwent surgery to 
 
        relieve problems in her right hand.
 
        
 
        After claimant returned to work following the surgery on her 
 
        right hand, she experienced increased problems in her left hand. 
 
        In contrast to the EMG in 1981, the EMG on September 9, 1983 
 
        showed no evidence of neuropathology in the right arm and 
 
        evidence of a "very minimal carpal tunnel syndrome" on the left 
 
        and a "slight deterioration when compared with the 1981 study." 
 
        Claimant's problems were severe enough that Dr. Strathman 
 
        performed a median nerve release on claimant's left side. The 
 
        surgery on the left was done one month after the EMG showing 
 
        carpal tunnel syndrome and two years after the prior EMG and 
 
        surgery on the right. The injury that claimant suffered in 1983 
 
        was carpal tunnel syndrome on the left side and the date of 
 
        injury was October 7, 1983 when claimant underwent surgery to 
 
        relieve problems in her left hand.
 
        
 
        In the arbitration decision the deputy discussed injuries that 
 
        allegedly occurred in 1985 and 1986. Defendant Second Injury Fund 
 
        of Iowa argues that it was error to find injuries in 1985 and 
 
        1986 because these injuries were not pleaded at any time and that 
 
        the issue was not tried by consent. Claimant counters by arguing 
 
        that even though these specific injuries were not pleaded, the 
 
        nature of gradual injuries does not admit any great precision in 
 
        determining injury dates. The record in this matter shows that 
 
        the injury dates alleged in the recasted amended original notice 
 
        and petition filed December 18, 1985 were September 14, 1981 and 
 
        October 7, 1983. while claimant is correct in noting that a 
 
        cumulative injury may not lend itself to ease in identifying a 
 
        specific injury date, the argument by Second Injury Fund is well 
 
        taken. Dates of injury after 1983 were not pleaded and the 
 
        alleged injuries occurred after the surgeries for the injuries in 
 
        1981 and 1983. In addition, injuries in 1985 and 1986, if any, 
 
        would have been while claimant was employed by defendant 
 
        employer's successor. This case is about alleged injuries that 
 
        occurred in 1981 and 1983 and the liability of defendant employer 
 
        and the Second Injury Fund. Injuries that may have occurred in 
 
        1985 and 1986 should not be considered in this matter. The 
 
        conclusion is supported
 
        
 
        HARRIS V. WILSON FOODS CORPORATION
 
        Page 10
 
        
 
        
 
        by Dr. Hall's opinion that claimant's later problems were not 
 
        related to the earlier carpal tunnel surgeries.
 

 
        
 
 
 
 
 
        
 
        The second general issue to be resolved is the nature and extent 
 
        of claimant's disability. Claimant has the burden of establishing 
 
        that she now suffers disability as a result of her carpal tunnel 
 
        syndrome on the right and left. No opinion is presented in the 
 
        record from Dr. Verdeck as to the extent of claimant's permanent 
 
        impairment. Dr. Strathman opines that claimant suffers no 
 
        permanent impairment as a result of the carpal tunnel surgeries 
 
        and that he could find no objective evidence of permanent 
 
        impairment. Dr. Walker, on the other hand, finds permanent 
 
        impairment but does not specifically state on what he bases this 
 
        finding. Review of Dr. Walker's report reveals that he bases his 
 
        opinion on claimant's subjective complaints of pain. However, 
 
        subjective complaints of pain without objective evidence of 
 
        impairment have been held an insufficient basis to support an 
 
        award of permanent disability. See Waller v. Chamberlain 
 
        Manufacturing, II Iowa Industrial Commissioner Report 419, 425 
 
        (1981). Furthermore, it is not readily apparent whether Dr. 
 
        Walker's findings were based upon the injuries that occurred in 
 
        1981 and 1983 or some other events after those injuries. 
 
        Therefore, the opinions of Dr. Strathman will be accepted over 
 
        those of Dr. Walker. Claimant has not proved by the greater 
 
        weight of evidence she sustained permanent disability as a result 
 
        of the carpal tunnel syndromes.
 
        
 
        Claimant did miss work as a result of the two carpal tunnel 
 
        surgeries. She is entitled to temporary total disability benefits 
 
        for those periods (December 17, 1981 through January 8, 1982 and 
 
        October 7, 1983 through October 24, 1983). Claimant is not 
 
        entitled to temporary total disability for the times she was off 
 
        work in 1985 and 1986 as those were not found to be causally 
 
        connected and as discussed above injuries in 1985 and 1986 were 
 
        not pleaded and should not be considered in this matter.
 
        
 
        Claimant seeks disability benefits from the Second Injury Fund. 
 
        In order to establish Second Injury Fund liability the claimant 
 
        must show that there is a permanent loss or loss of use of one 
 
        hand, arm, foot, leg or eye and that there must be a permanent 
 
        loss or loss of use of another such member or organ through a 
 
        compensable subsequent injury. Because claimant failed to prove 
 
        the two injuries involved here are permanent, claimant has not 
 
        established second injury fund liability.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant was experiencing bilateral hand pain in September, 
 
        October and November 1981.
 
        
 
        HARRIS V. WILSON FOODS CORPORATION
 
        Page 11
 
        
 
        
 
        2. On December 17, 1981, claimant underwent surgery to relieve 
 
        problems in her right hand.
 
        
 
        3. On December 17, 1981, claimant sustained an injury arising out 
 
        of and in the course of her employment.
 
        
 
        4. Claimant's injury on December 17, 1981 was in the nature of 
 
        carpal tunnel syndrome of her right wrist. On that date she did 
 
        not have carpal tunnel syndrome in her left wrist.
 
        
 
        5. Claimant's injury on October 7, 1983 was in the nature of 
 
        carpal tunnel syndrome of her left wrist. Her condition in her 
 
        left wrist deteriorated between November 24, 1981 and September 
 
        9, 1983.
 

 
        
 
 
 
 
 
        
 
        6. On October 7, 1983, claimant underwent surgery to relieve 
 
        problems in her left hand.
 
        
 
        7. On October 7, 1983, claimant sustained an injury arising out 
 
        of and in the course of her employment.
 
        
 
        8. Claimant was off work as a result of the December 17, 1981 
 
        injury from December 17, 1981 through January 8, 1982 and from 
 
        October 7, 1983 through October 27, 1983.
 
        
 
        9. Claimant suffers no permanent disability as a result of the 
 
        December 17, 1981 work injury.
 
        
 
        10. Claimant suffers no permanent disability as a result of the 
 
        October 7, 1983 work injury.
 
        
 
        11. Claimant's rate of compensation was stipulated to be $326.80.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant sustained an injury arising out of and in the course of 
 
        her employment on December 17, 1981 resulting in carpal tunnel 
 
        syndrome in her right wrist.
 
        
 
        Claimant sustained an injury arising out of and in the course of 
 
        her employment on October 7, 1983 resulting in carpal tunnel 
 
        syndrome in her left wrist.
 
        
 
        Claimant established that she sustained temporary total 
 
        disability as a result of her work injuries on December 17, 1981 
 
        and October 7, 1983.
 
        
 
        Claimant has not established that she sustained any permanent 
 
        disability as a result of her work injuries on December 17, 1981 
 
        and October 7, 1983.
 
        
 
        HARRIS V. WILSON FOODS CORPORATION
 
        Page 12
 
        
 
        
 
        Claimant has not established that she is entitled to benefits 
 
        from the Second Injury Fund as a result of her work injuries on 
 
        December 17, 1981 and October 7, 1983.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and reversed.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendant Wilson Foods Corporation pay claimant temporary 
 
        total disability benefits for the periods December 17, 1981 
 
        through January 8, 1982 and October 8, 1983 through October 24, 
 
        1983 at the rate of three hundred twenty-six and 80/100 dollars 
 
        ($326.80) per week.
 
        
 
        That defendant Wilson Foods Corporation pay accrued amounts in a 
 
        lump sum together with interest pursuant to Iowa Code section 
 
        85.30.
 
        
 
        That defendant Wilson Foods Corporation is entitled to credit for 
 
        benefits previously paid.
 
        
 
        That defendants, Wilson Foods Corporation and Second Injury Fund 
 
        of Iowa, pay equally the costs of this action including the costs 
 

 
        
 
 
 
 
 
        of the transcription of the hearing proceeding.
 
        
 
        That defendant Wilson Foods Corporation file activity reports as 
 
        required by this agency pursuant to Division of Industrial 
 
        Services Rule 343-3.1
 
        
 
        Signed and filed this 22nd day of December, 1988.
 
        
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JUDY HARRIS,
 
         
 
              Claimant,
 
                                                FILE NOS. 688326  &  
 
                                                          808325
 
         VS.
 
                                                     A R B I T R A T I 0 N
 
         
 
         WILSON FOODS CORPORATION,
 
                                                       D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
         
 
         and
 
         
 
         SECOND INJURY FUND,
 
         
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Judy Harris, 
 
         claimant, against Wilson Foods Corporation, a self-insured 
 
         employer (hereinafter referred to as Wilson) and the Second 
 
         Injury Fund for benefits as the result of alleged injuries on 
 
         September 14, 1981, October 7, 1983 and other gradual injuries.  
 
         On April 9, 1987, a hearing was held on claimant's petition and 
 
         the matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which is approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses: Mary Ann Remington and Jack Harris.  The 
 
         exhibits received into the evidence at the hearing are listed in 
 
         the prehearing report.  All of the evidence received at the 
 
         hearing was considered in arriving at this decision.
 
         
 
              The prehearing report contains the following stipulations:
 
         
 
              1.  An employer/employee relationship existed between 
 
         claimant and Wilson's at the time of the alleged injuries;
 
         
 
              2.  Claimant seeks temporary total disability or healing 
 
         period benefits for various periods of time she was off work in 
 
         1985 and 1986 and that it was stipulated that claimant was indeed 
 
         off work for these periods of time (see prehearing report, 
 
         paragraph four);
 
         
 
         
 
              3.  Claimant's rate of compensation in the event of an 
 
         award of weekly benefits from this proceeding shall be $402.00 
 

 
         
 
         
 
         
 
         HARRIS V. WILSON FOODS CORPORATION
 
         Page   2
 
         
 
         
 
         for the September 4, 1981 alleged injury date; $326.80 for the 
 
         October 17, 1983 alleged injury date; and, $326.80 for a 
 
         gradual injury, and;
 
         
 
              4.  The charges for the medical expenses for which 
 
         claimant seeks reimbursement in this proceeding are fair and 
 
         reasonable.
 
         
 
              The prehearing report submits the following issues for 
 
         determination in this decision:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of employment;
 
         
 
              II.  Whether there is a causal relationship between the 
 
         alleged injuries and the claimed disabilities;
 
         
 
              III.  The extent of claimantOs entitlement to weekly 
 
         disability benefits, and;
 
         
 
              IV.  The extent of claimant's entitlement to medical
 
         benefits under Iowa Code section 85.27.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              From her demeanor while testifying, claimant appeared to be 
 
         truthful.  Claimant's testimony was consistent with histories 
 
         provided to physicians during treatment and evaluation of her 
 
         injuries.  Consequently, claimant was found to be credible.
 
         
 
              2.  Claimant has been continuously employed at the packing 
 
         plant in Cedar Rapids from 1980 to the present time formerly 
 
         owned by Wilson's and now owned by Farmland Foods.
 
         
 
              There was little dispute among the parties as to the nature 
 
         of claimant's employment at Wilson's prior to or after the time 
 
         Wilson's sold the packing plant in July, 1984, to Farmland.  
 
         Claimant testified that her duties consisted of various labor 
 
         jobs as a meat packer.  Claimant has held jobs such as splitting 
 
         hog heads, ruffling, skulling, loin converting, spleen cutting, 
 
         separating guts, and saving lungs.  It was clearly demonstrated 
 

 
         
 
         
 
         
 
         HARRIS V. WILSON FOODS CORPORATION
 
         Page   3
 
         
 
         
 
         by her uncontroverted testimony that all of claimant's jobs at 
 
         the plant involved the extensive use of both of her hands in 
 
         pulling and grasping of animal parts and using knives and other 
 
         manual or electrically powered cutting devices (such as scissors 
 
         and a wizard knife) on a repetitive basis.  Claimant testified 
 
         that most of her hand problems occurred during the ruffling and 
 
         loin converting jobs.
 
              3.  On December 17, 1981 and October 5, 1983, claimant 
 
         suffered two separate injuries to her right and left arm 
 
         respectively which arose out of and in the course of her 
 
         employment with Wilson's.
 
         
 
              As will be explained in the conclusions of law section of 
 
         this decision, the injury dates found above were arrived at by 
 
         using a gradual injury theory.  These dates coincided with the 
 
         time claimant was compelled by a wrist pain to leave work for the 
 
         purpose of receiving medical treatment.  As far as the location 
 
         of the injury, the medical records clearly indicate injurious 
 
         involvement of the median nerve extending from the hand through 
 
         the carpal tunnel and into the wrist.
 
         
 
              According to claimant's uncontroverted testimony, in early 
 
         1981, while performing the ruffling job and other jobs consisting 
 
         of extensive pulling of animal internal organs on a continual 
 
         basis, claimant developed pain and swelling in both of her 
 
         wrists, except that the pain was more severe on the right.  
 
         Claimant was treated by the plant nurse with wrist wraps.  During 
 
         the summer of 1981, claimant was off work to give birth to one of 
 
         her children.  Upon her return to ruffling work in August, 1981, 
 
         claimant's wrist problems worsened and she began to experience 
 
         tingling and numbness along with night pain in her wrist, again 
 
         more on the right than on the left.  Claimant also developed a 
 
         ganglion on the right wrist.  She then sought treatment on 
 
         November 24, 1981 from Warren Verdeck, M.D., an orthopedic 
 
         surgeon who diagnosed bilateral carpal tunnel syndrome.  After an 
 
         EMG test revealed objective evidence of carpal tunnel syndrome on 
 
         the right side, Dr. Verdeck performed a surgical release of the 
 
         carpal tunnel tendon in the right wrist on December 17, 1981.  
 
         The only work release slips submitted by Dr. Verdeck in the 
 
         record indicates that claimant was first off work for this 
 
         condition on December 17, 1981.  The EMG test in 1981 on the left 
 
         hand failed to reveal any positive finding of left carpal tunnel 
 
         syndrome.  There was no evidence submitted in either written or 
 
         oral form as to whether claimant was off work prior to the time 
 
         she had her surgery in December, 1981.  Claimant testified that 
 
         she was off work approximately a month as a result of the right 
 
         carpal tunnel syndrome surgery.
 
         
 
              On January 8, 1982, claimant returned to full duty 
 
         performing work similar to the work she was performing in the 
 
         fall of 1981.  Claimant's right wrist pain improved with the 
 
         surgery but according to claimant the pain never subsided 
 
         completely.  Claimant stated that following her return to loin 
 
         converting her left hand began to cause her more difficulties and 
 
         both wrists continued to cause problems in 1982 and 1983.  
 
         Claimant was on strike for a portion of 1983 but upon a return to 
 
         work, claimant's left hand problems became more severe and she 
 
         started to have night pain.  Claimant then went to L. C. 
 
         Strathman, M.D., another orthopedic surgeon.  Dr. Strathman 
 

 
         
 
         
 
         
 
         HARRIS V. WILSON FOODS CORPORATION
 
         Page   4
 
         
 
         
 
         ordered another EMG test and after the test was positive on the 
 
         left side he performed a release surgery for carpal tunnel 
 
         syndrome on the left wrist on October 5, 1983.  Claimant was off 
 
         work from October 5, 1983 until November 21, 1983 for this second 
 
         surgery according to the records submitted in this case.  Dr. 
 
         Strathman, in his work release slip, plainly opines that the 
 
         condition was work related.
 
         
 
              Following her return to full duty on November 22, 1983,
 
         again to the same work as before, claimant continued to 
 
         experience pain in both wrists although the night pain subsided.  
 
         Claimant worked through the summer of 1984 but was laid off in 
 
         the fall for approximately one month.
 
         
 
              No specific findings are made as to the extent of claimant's 
 
         temporary disability for each surgery as claimant indicated in 
 
         the prehearing report that she was not seeking temporary total 
 
         disability or healing period benefits for these times off work.  
 
         Presumably, claimant was paid for these periods of time.
 
         
 
              Dr. Verdeck, in his opinion rendered in 1986, opined that 
 
         there was not two separate injuries.  However, Dr. Verdeck may 
 
         very well be correct as to the medical injury processes occurring 
 
         on claimant's wrists since 1981.  However, the actual injury date 
 
         in gradual injury cases is a legal rather than a medical question 
 
         as will be explained later in this decision.
 
         
 
              4.  The work injury of December 17, 1981, was a cause of a 
 
         six percent permanent partial impairment to the right upper 
 
         extremity and the injury of October 5, 1983 was a cause of a 
 
         three percent permanent partial impairment to the left upper 
 
         extremity.
 
         
 
              Two physicians have rendered opinions regarding the extent 
 
         of claimant's impairment following the two carpal tunnel release 
 
         surgeries.  In November, 1984, claimant returned to Dr. Strathman 
 
         for a disability evaluation.  Additional EMG's were ordered at 
 
         that time but no evidence of neurological pathology was found 
 
         from these tests.  However, the physician who tested claimant at 
 
         the time, B. R. Nichols, M.D., in a later report in 1986 stated 
 
         that it was possible to compress a nerve in a manner sufficient 
 
         to cause symptoms yet insufficient to result in any positive 
 
         finding on the EMG test.  Dr. Strathman, in December, 1984, 
 
         stated as follows:
 
         
 
              Recent examination was essentially normal.  Her EMG's are 
 
              normal and although she offers some complaints there is no 
 
              objective evidence of impairment.  In view of this, 
 
              disability certainly would be minimal and could be related 
 
              only to her subjective complaints.
 
         
 
         
 
         
 
         In February, 1985, the doctor states in addition:
 
         
 
              As we have stated in previous correspondence, this lady's 
 
              findings are essentially negative although she continues to 
 
              complain of difficulty opening fruit jars, etc.  We repeated 
 
              her EMGs in November, 1984 and they were reported as normal.  
 

 
         
 
         
 
         
 
         HARRIS V. WILSON FOODS CORPORATION
 
         Page   5
 
         
 
         
 
              Her wound is well healed and there is no restriction of 
 
              motion about the wrist.
 
         
 
              As you see from the above there is no objective evidence of 
 
              permanent impairment except for the scar associated with the 
 
              volar carpal ligament, release.  The complaints are 
 
              subjective and at this time I do not feel that numerical 
 
              impairment rating is indicated.
 
         
 
              Another orthopedic surgeon, John R. Walker, M.D, examined 
 
         claimant on October 12, 1984.  His examination revealed some loss 
 
         of strength and from her pain complaints he opined that claimant 
 
         has a 12 percent permanent partial impairment of the right upper 
 
         extremity and a six percent permanent partial impairment of the 
 
         left upper extremity.
 
         
 
              Normally, the views of the treating physician, Dr. 
 
         Strathman, would be given greater weight due to the treating 
 
         physician's greater familiarity with claimant's treatment and 
 
         symptoms.  However, in this case, although Dr. Strathman may have 
 
         greater familiarity with claimant's symptoms, he does not have 
 
         greater familiarity with the appropriate manner of rating 
 
         functional impairments in a workers' compensation context.  From 
 
         the language quoted above, Dr. Strathman apparently believes that 
 
         a numerical impairment rating can only be given when there is 
 
         objective findings of loss of strength, loss of range of motion 
 
         or a positive EMG finding.  He makes no attempt to rate the 
 
         subjective pain complaints.  Dr. Strathman's views may have some 
 
         support in the old AMA Guidelines for rating impairments.  These 
 
         guidelines did not mention pain as a criteria for such ratings.  
 
         However, under the new guidelines published in 1984, there is 
 
         extensive guidance given to physicians for the rating of 
 
         impairments caused by subjective loss of sensation, pain or 
 
         discomfort.  See AMA Guides to the Evaluation of Permanent 
 
         Impairment, 2nd Edition, pages 73-83.  The AMA Guidelines have 
 
         long been recognized by this agency as a valid tool for rating 
 
         functional impairments.  See Division of Industrial Services Rule 
 
         343-2.4.  Therefore, it would appear that Dr. Strathman's views 
 
         are contrary to recognized guidelines.  However, Dr. Walker's 
 
         views are likewise not entirely satisfactory.  He did not explain 
 
         his methodology in arriving at his ratings or what if any 
 
         guidelines he used.  As both Dr. Strathman or Dr. Walker appear 
 
         in this record to be equally qualified orthopedic surgeons, their 
 
         views were given equal weight and the ratings averaged for the 
 
         purposes of these findings of fact.
 
              
 
              With reference to the issue of causation, the ownership of 
 
         the packing plant in Cedar Rapids changed from Wilson to Farmland 
 
         Foods on July 2, 1984.  As claimant has experienced considerable 
 
         hand and wrist difficulties since July 2, 1984 and she continues 
 
         to work as a meat packer in the same plant, it is likely that 
 
         claimant has suffered and continues to suffer additional injuries 
 
         from her employment at Farmland.  Despite these subsequent 
 
         injuries, claimant has sufficiently demonstrated by a 
 
         preponderance of the credible evidence presented that her 
 
         permanent partial impairment, as found herein, occurred before 
 
         July 2, 1984.  First, claimant testified that her hands and arms 
 
         did not change much between July 1, 1984 and November, 1984, the 
 
         time of the ratings.  Secondly, Dr. Walker based his opinion upon 
 
         symptoms essentially identical to the description of her 
 

 
         
 
         
 
         
 
         HARRIS V. WILSON FOODS CORPORATION
 
         Page   6
 
         
 
         
 
         condition on July 1, 1984 given by claimant at the hearing.  
 
         Also, claimant was absence from work for a few weeks prior to Dr. 
 
         Walker's examination.  Consequently, the effects of her job at 
 
         Farmland at that time would have been minimal.
 
         
 
              Again, the medical records and claimant's testimony 
 
         demonstrate that claimant has suffered new injuries or at least 
 
         new aggravations of prior injuries from her current work at 
 
         Farmland.  However, her current physician for these difficulties 
 
         since the summer of 1985, Walter Hales, M.D., opines that none of 
 
         her current problems are related to the original carpal tunnel 
 
         releases.  For that reason, none of the absences from work in 
 
         1985 and 1986 can be found to relate to the 1981 and 1983 carpal 
 
         tunnel injuries found in this case.
 
         
 
              6.  Claimant suffered three additional gradual work injuries 
 
         on August 13, 1985, November 12, 1985 and April 28, 1986, while 
 
         working for Farmland Foods, which were a cause of significant 
 
         permanent partial impairment to claimant's left and right hands 
 
         and arms.
 
         
 
              Although Farmland Foods is not a party in this finding and 
 
         is not binding upon it, this finding was necessary in light of 
 
         the Second Injury Fund's involvement in this case.  These 
 
         additional gradual injuries constitute further second injuries 
 
         and increase the Second Injury Fund's liability.
 
         
 
              As stated above, it is clear that claimant has suffered and 
 
         is continuing to suffer recurrent arm and hand injuries from her 
 
         work since July 2, 1984, at Farmland Foods.  Beginning on August, 
 
         1985, Dr. Hales began treatment for claimant for tenosynovitis in 
 
         the joints of her hands and in particular flexor synovitis.  
 
         There is also a reoccurrence of a ganglion in the right wrist and 
 
         another on the left hand.  The left hand shows signs of recurrent 
 
         carpal tunnel syndrome.  These problems according to Dr. Hales 
 
         are all attributable to her work at Farmland and, in particular, 
 
         in using a powered "wizard" knife.  Again new EMG tests were 
 
         taken and as before do not provide objective evidence of nerve 
 
         damage.  In November, 1985, Dr. Hales stated that it was his 
 
         advice to claimant that she and the company find work for her 
 
         less stressful on her hands so that she could remain working for 
 
         Farmland Foods.  Dr. Hales, in his work release slips, 
 
         consistently indicates that claimant's current problems are work 
 
         related but as stated above does not feel that the problems are 
 
         related to the original carpal tunnel problems in 1981 and 1983.  
 
         The opinion that claimant should find different work as a result 
 
         of her current problems is clear evidence of a significant 
 
         permanent impairment.  Since 1986, claimant has had thumb 
 
         difficulties in her right hand but the medical records do not 
 
         indicate whether or not this thumb condition is permanent.
 
         
 
              Dr. Walker examined claimant again in July, 1986, and found 
 
         the following new injuries caused by her work at Farmland Foods:
 
         
 
              This patient is going to end up really a cripple as far as 
 
         work is concerned.  I have seen this before and she is going to 
 
         have extreme problems.  I have tried to warn them at Farmstead to 
 
         get her on something she can handle and not to push it.  At the 
 
         present time she has the following diagnoses:
 

 
         
 
         
 
         
 
         HARRIS V. WILSON FOODS CORPORATION
 
         Page   7
 
         
 
         
 
         
 
              1.)  Recurrent ganglion, right wrist.
 
         
 
              2.)  Tenosynovitis of both forearm flexor musculature, 
 
         particularly oh the right.
 
         
 
              3.)  Trigger fingers, involving the right third and fourth 
 
         digits.
 
         
 
              4.)  Trigger fingers, involving the left third and fourth 
 
         digits.
 
         
 
              5.)  Probable, bilateral recurrence of carpal tunnel 
 
         syndrome, involving the median nerve of both hands.
 
         
 
              6.)  Probable early ulnar nerve entrapment syndrome of both 
 
         wrists.
 
         
 
              All of the above are due to the repetitive work that this 
 
         patient is doing at Farmstead now.  JRW/vw
 
         
 
              The injury dates while working at Farmland Foods were again 
 
         arrived at under a gradual injury theory and coincide with the 
 
         times she was off work because of her pain and wrist problems 
 
         pursuant to the stipulation of the parties in the prehearing 
 
         report.
 
         
 
              7.  The work injuries of December 17, 1981 and the 
 

 
         
 
         
 
         
 
         HARRIS V. WILSON FOODS CORPORATION
 
         Page   8
 
         
 
         
 
         following
 
         
 
         second injuries both at Wilson's and at Farmland Foods on October 
 
         5, 1983, August 13, 1985, November 12, 1985 and April 28, 1986 
 
         are a cause at the present time of a 20 percent permanent partial 
 
         loss of earning capacity.
 
         
 
              Claimant's past employment primarily consists of unskilled 
 
         physical labor requiring repetitive use of her hands and arms and 
 
         any physical impairment of her hands and arms has a serious 
 
         impact on her future earning capacity.  Since 1985 all of her 
 
         doctors have recommended that claimant leave her current 
 
         occupation in order to prevent further physical damage to her 
 
         hands.  Claimant simply for apparent monetary reasons continues 
 
         to work despite this advice.
 
         
 
              Claimant has only a ninth grade education and possesses low 
 
         potential for successful vocational rehabilitation.  Claimant is 
 
         43 years of age and should be in the most productive years of her 
 
         life.  Her loss of earning capacity is much more severe than 
 
         would be the case for a younger or an older individual.
 
         
 
              Admittedly, claimant has not, as yet, suffered a significant 
 
         loss in actual earnings from employment at this time due to her 
 
         return to work against the advice of her physicians but her 
 
         future loss of earnings is largely dependent upon the 
 
         availability of claimant's current job and her willingness to put 
 
         up with her pain.  Claimant is an unskilled physical laborer who 
 
         has been significantly impaired in her ability to perform 
 
         unskilled physical labor.  Should she not be able to continue her 
 
         current employment, she probably will experience great difficulty 
 
         in finding replacement employment.  Claimant testified that she 
 
         has not been able to locate other more suitable work outside of 
 
         Farmland Foods.
 
         
 
              9.  A finding could not be made as to the causal connection 
 
         between claimant's medical expenses listed in the prehearing 
 
         report which were incurred in 1985 and the 1981 or 1983 work 
 
         injuries.  Both Dr. Walker and Dr. Hales believe that claimant's 
 
         current difficulties are the result of her current work at 
 
         Farmland Foods, not from work at Wilson's.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The foregoing findings of fact were made under the following 
 
         principles of law:
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d
 
         63 (1955).  An employer takes an employee subject to any active 
 
         of dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury   Zieqler v. United States Gypsum Co., 252 Iowa 
 

 
         
 
         
 
         
 
         HARRIS V. WILSON FOODS CORPORATION
 
         Page   9
 
         
 
         
 
         613, 620, 106 N.W.2d 591 (1960) and cases cited therein.
 
         
 
              It is not necessary that claimant prove her disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from work activity over a period of time.  
 
         McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  
 
         The McKeever court also held that the date of injury in gradual 
 
         injury cases is the time when pain prevents the employee from 
 
         continuing to work.  In McKeever, the injury date coincided with 
 
         the time claimant was finally compelled to give up his job.  This 
 
         date was then utilized in determining the rate and the timeliness 
 
         of the claim under Iowa Code section 85.26 and notice under Iowa 
 
         Code section 85.23.
 
         
 
              In this case, Harris, the claimant, has not been compelled 
 
         as yet to finally leave her employment at Farmland Foods.  
 
         However, she was compelled to leave work on several occasions to 
 
         seek medical treatment to correct her pain and under the 
 
         rationale of McKeever, this time appears to be the most logical 
 
         as the injury date for her gradual injuries.  Obviously, this 
 
         gradual injury process is continuing and there are many,injury 
 
         dates for the various times of disability which appears to be 
 
         growing progressively worse.  Essentially, under McKeever, each 
 
         disability is causally connected to the most recent work 
 
         experience causing the disability.  If claimant ever is 
 
         eventually compelled to finally leave her work, there would be 
 
         new injury date under McKeever which would be causally related to 
 
         additional disability.
 
         
 
              II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 

 
         
 
         
 
         
 
         HARRIS V. WILSON FOODS CORPORATION
 
         Page  10
 
         
 
         
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              Claimant must establish by a preponderance of the evidence 
 
         the extent of weekly benefits for permanent disability to which 
 
         claimant is entitled.  Permanent partial disabilities are 
 
         classified as either scheduled or unscheduled.  A specific 
 
         scheduled disability is evaluated by the functional method; the 
 
         industrial method is used to evaluate an unscheduled disability. 
 
         Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 
 
         (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
         Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983).  
 
         When the result of an injury is loss to a scheduled member, the 
 
         compensation payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2).  Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 
         of useO of a member is equivalent to "loss" of the member.  Moses 
 
         v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922).  
 
         Pursuant to Code section 85.34(2)(u) the industrial commissioner 
 
         may equitably prorate compensation payable in those cases wherein 
 
         the loss is something less than that provided for in the 
 
         schedule.  Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 
         1969).
 
         
 
              Based upon a finding of a total of nine percent loss of use 
 
         to the upper extremities, claimant is entitled as a matter of law 
 
         to a total of 22.5 weeks of permanent partial disability benefits 
 
         under Iowa Code section 85.34(2)(m) which is nine percent of the 
 
         250 weeks allowable for an injury to the arm in that subsection.
 
              
 
              Claimant also seeks additional disability benefits from the 
 
         Second Injury Fund under Iowa Code sections 85.63-85.69.  This 
 
         Fund was created to compensate an injured worker for a permanent 
 
         industrial disability resulting from the combined effect of 
 
         additional injuries to two scheduled members.  The purpose of 
 
         such a scheme of compensation was to encourage employers to hire 
 
         or retain handicapped workers.  See Anderson v. Second Injury 
 
         Fund, 262 N.W.2d 789 (1978).  There are three requirements under 
 
         the statute to invoke Second Injury Fund liability.  First, there 
 
         must be a permanent loss or loss of use of one hand, arm, foot, 
 
         leg or eye.  Secondly, there must be a permanent loss or loss of 
 
         use of another such member or organ through a compensable 
 
         subsequent injury.  Third, there must be permanent industrial 
 
         disability to the body as a whole arising from both the first and 
 
         second injuries which is greater in terms of relative weeks of 
 
         compensation than the sum of the scheduled allowances for those 
 
         injuries.
 
         
 

 
         
 
         
 
         
 
         HARRIS V. WILSON FOODS CORPORATION
 
         Page  11
 
         
 
         
 
              Unlike scheduled member disabilities, the degree of 
 
         industrial disability to the body as a whole under Iowa Code 
 
         section 85.34(2)(u) is not measured solely by the extent of a 
 
         functional impairment or loss of use of a body member.  An 
 
         industrial disability is a loss of earning capacity resulting 
 
         from a work injury.  Diederich v. Tri-City Railway Co., 219 Iowa 
 
         587, 593, 258 N.W. 899 (1935).  A physical impairment or 
 
         restriction on a work activity may or may not result in such a 
 
         loss of earning capacity.  The extent to which a work injury and 
 
         a resulting medical condition in an industrial disability is 
 
         determined from examination of several factors.  These factors 
 
         include the employee's medical condition prior to the injury, 
 
         immediately after the injury and presently; the cite 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 to 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.
 
         
 
              In the case sub judice, claimant established several "second 
 
         injuries", qualifying him for Second Injury Fund benefits.  These 
 
         second injuries were the result of various gradual injuries to 
 
         claimant's hands and arms at various times since 1981.  Although 
 
         the employer at the time of these injuries is not a party, 
 
         extensive evidence was offered as to claimant's second injuries 
 
         in 1985 and 1986.  The most recent injuries were the most serious 
 
         from an industrial disability standpoint.
 
         
 
              The assessment of industrial disability in this case is 
 
         based in part upon the well known fact of modern economic life 
 
         that the demand for unskilled and semi-skilled labor has been 
 
         rapidly 
 
         
 
         
 
         declining in this country with the advant of the age of 
 
         mechanization and automation, and that the great bulk of the 
 
         persistent hardcore unemployment of the United States is in these 
 
         categories.  Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 
 
         (Iowa 1985).
 
         
 
              At the prehearing conference in this case, claimant 
 
         indicated that she was not relying upon the so called Oodd-lot" 
 
         doctrine under the holding in Guyton, Id.  However, by virtue of 
 
         her current employment, claimant is not, in any event, an odd-lot 
 
         employee.  An odd-lot employee is a worker who cannot find 
 
         employment in any well known branch of the labor market.  In Iowa 
 
         there is no presumption that suitable work is available to an 
 
         odd-lot employee.  An injured worker who establishes by 
 
         substantial evidence that she is not employable in the 
 
         competitive labor market, after exhibiting a reasonable effort to 
 
         secure suitable employment, is entitled to a finding of permanent 
 
         total disability in the absence of a showing by the employer that 
 
         suitable work is available.  Guyton at 106.  Although claimant's 
 
         return to work in this case prevents the application of this 
 
         odd-lot doctrine, at least at this time, a significant loss of 
 
         earning capacity remains which should be compensated.
 

 
         
 
         
 
         
 
         HARRIS V. WILSON FOODS CORPORATION
 
         Page  12
 
         
 
         
 
         
 
              In this decision it was found that claimant suffered a loss 
 
         of earning capacity despite the lack of a showing of a loss of 
 
         actual earnings.  A showing that claimant had no loss of actual 
 
         earnings does not preclude a finding of industrial disability.  
 
         See Michael v. Harrison County, Thirty-four Bienniel Reports, 
 
         Iowa Industrial Commissioner 218, 220 (Appl. Decn. 1979).
 
         
 
              Based upon a finding of a 20 percent loss of earning 
 
         capacity or industrial disability as a result of an injury to the 
 
         body as a whole, claimant is entitled, as a matter of law, to 100 
 
         weeks of permanent partial disability benefits under Iowa Code 
 
         section 85.34(2)(u) which is 20 percent of the 500 weeks 
 
         allowable for an injury to the body as a whole in that 
 
         subsection.  However, credit should be given for the previous 
 
         payment of disability by the employer as ordered herein.  
 
         Therefore, the Second Injury Fund will be ordered to pay only 
 
         77.5 weeks beginning 7.5 weeks following the first second injury 
 
         on October 5, 1983.
 
         
 
              Due to the fact that no fundings could be made as to 
 
         causally connecting the times off work contained in the 
 
         prehearing report to any work injuries in this case, claimant 
 
         could not be awarded weekly benefits for temporary total 
 
         disability or healing period for these periods of time.  Again, 
 
         Farmland Foods was not a party to this proceeding.  Also, because 
 
         no findings could be made as to the causal connection of 
 
         requested medical benefits, such benefits could likewise not be 
 

 
         
 
         
 
         
 
         HARRIS V. WILSON FOODS CORPORATION
 
         Page  13
 
         
 
         
 
         awarded.  The rate of compensation used in the award below was 
 
         the stipulated rate for a gradual injury contained in the 
 
         prehearing report.  This was utilized because the theory of 
 
         gradual injuries was used to arrive at all of the injuries found 
 
         in this case.
 
         
 
                                      ORDER
 
         
 
              1.  Defendant, Wilson, shall pay to claimant fifteen (15) 
 
         weeks of permanent partial disability benefits at the rate of 
 
         three hundred twenty-six and 80/100 dollars ($326.80) per week 
 
         from January 18, 1982 and seven point five (7.5) weeks of 
 
         permanent partial disability benefits at the rate of three 
 
         hundred twenty-six and 80/100 dollars ($326.80) per week from 
 
         November 21, 1983.
 
         
 
              2.  Defendant, Second Injury Fund, shall pay seventy-seven 
 
         point five (77.5) weeks of permanent partial disability benefits 
 
         at the rate of three hundred twenty-six and 80/100 dollars 
 
         ($326.80) from November 26, 1983.
 
         
 
              3.  All defendants shall pay accrued weekly benefits in a 
 
         lump sum and shall receive credit against this award for all 
 
         benefits previously paid, if any.
 
         
 
              4.  All defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants, Wilson and the Second Injury Fund, shall 
 
         equally pay the cost of this action pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              6.  All defendants shall file activity reports upon payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 29th day of July, 1987.
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas J. Currie
 
         Mr. Tom Riley
 
         Mr. Thomas M. Wertz
 
         Attorneys at Law
 
         3401 Williams Blvd. S.W.
 
         P. 0. Box 998
 
         Cedar Rapids, Iowa 52406
 
         
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         500 Merchants National Bank Bldg.
 

 
         
 
         
 
         
 
         HARRIS V. WILSON FOODS CORPORATION
 
         Page  14
 
         
 
         
 
         P. 0. Box 2107
 
         Cedar Rapids, Iowa 52406-2107
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1803; 2209; 3201 
 
                                                     Filed July 29, 1987 
 
                                                     LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JUDY HARRIS,
 
         
 
              Claimant,
 
         
 
                                                  FILE NOS. 688326 & 
 
                                                            808325 
 
         VS.
 
         
 
                                                    A R B I T R A T I 0 N 
 
         
 
         WILSON FOODS CORPORATION,
 
         
 
                                                        D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
         
 
         and
 
         
 
         SECOND INJURY FUND,
 
         
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1803
 
         
 
              Opinions by treating physician that subjective pain and loss 
 
         of sensation complaints cannot be given a numerical impairment 
 
         rating were not given full weight under the new AMA Guidelines 
 
         which provide extensive guidance on how to rate such complaints.
 
         
 
         2209
 
         
 
              Claimant was not permanently compelled to leave work in a 
 
         gradual injury context.  The injury dates were arrived at under 
 
         the rationale of McKeever which coincided with the times claimant 
 
         was compelled by her pain to leave work to receive carpal tunnel 
 
         release surgeries or for other various forms of treatment such as 
 
         rest.
 
         
 
         3201
 
         
 
              Second Injury Fund was assessed for a cumulative effect of 
 
         several gradual injuries to the extent of a 20 percent industrial 
 
         disability.  As claimant is still working against the advice of 
 
         her physicians, the Second Injury Fund's liability for further 
 
         gradual injuries is likewise continuing.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VIRGIL GILBREATH
 
         
 
              Claimant,
 
                                                     File No. 689229
 
         vs.
 
         
 
         WILSON FOODS, INC.,                             A P P E A L
 
         
 
              Employer,                                D E C I S I 0 N
 
              Self-Insured,
 
         
 
         and                                              F I L E D
 
         
 
         SECOND INJURY FUND OF IOWA,                     JUN 20 1988
 
         
 
              Insurance Carrier,               IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening decision denying 
 
         further benefits for claimant's left lower extremity injury.  The 
 
         deputy found that claimant has no permanent disability 
 
         attributable to claimant's right lower extremity injury and 
 
         concludes that claimant is not entitled to benefits from the 
 
         second injury fund.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing, claimant's exhibits 1 through 3; 
 
         defendants' exhibits A, C and D; and Second Injury Fund's exhibit 
 
         F.  All parties have filed briefs on appeal.
 
         
 
                                  ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              1.  Whether claimant has established that this is a second 
 
         injury fund case; specifically, whether the claimant has suffered 
 
         a permanent partial impairment or loss of use as a result of his 
 
         first injury.
 
         
 
              2.  The extent of the claimant's industrial disability.
 
         
 
                          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 an injury to his right knee in 1970 when 
 
                                                
 
                                                         
 
         he slipped on a wet stairway and landed on his right knee. 
 
         Claimant's treating physician for the injury was W. J. Robb, M.D. 
 
         Dr. Robb summarizes the treatment of this injury in a September 
 
         12, 1985 letter:
 
         
 
                   Virgil Gilbreath, at the age of 50, was examined by me 
 
              on August 6, 1970 in regard to an internal derangement of 
 
              the medial compartment of his right knee which had resulted 
 
              from an injury sustained at Wilson Packing House about four 
 
              months earlier.  Conservative management was instituted.  
 
              However, he continued to have fusion and impairment of 
 
              function and therefore on August 17, 1970 a routine medial 
 
              menisectomy was carried out.  He had a torn medial meniscus. 
 
               His postoperative recovery was excellent and he was placed 
 
              on a program of quad exercises and was last seen by me on 
 
              October 6, 1970.  He had recovered an excellent range of 
 
              motion and was performing well.  No impairment of function 
 
              was assigned to him or to the knee for the torn meniscus and 
 
              its excision.
 
         
 
                   He was released to work on September 28, 1970.
 
         
 
                   He was examined again by me on September 17, 1971 for 
 
              an injury to his right knee while at work on that date.  
 
              This was a direct blow to the outer aspect of the right 
 
              knee and produced some soreness and difficulty in kneeling 
 
              and weight bearing.  He had incurred a mild derangement of 
 
              the lateral meniscus for which conservative management was 
 
              instituted.  He apparently recovered from this uneventfully 
 
              as I have no further records of examination or treatment of 
 
              the right knee.
 
         
 
         (Second Injury Fund Exhibit F)
 
         
 
              Claimant stated that after the treatment in 1971 he received 
 
         no more treatment for his right knee except for pain killers. 
 
         Claimant returned to work following this treatment.
 
         
 
              On November 23, 1981, claimant injured his left knee when he 
 
         fell on a catwalk while "pumping hams."  Claimant was treated by 
 
         James W. Turner, M.D., for the left knee injury.  An arthroscopy 
 
         performed on June 30, 1982 revealed a flap tear in the posterior 
 
         portion of the medial meniscus which was resected.
 
         
 
              Concerning the extent of claimant's impairment following 
 
         these procedures, Dr. Turner opines:
 
         
 
                   Virgil Gilbreath was last examined on March 9, 1983.
 
         
 
                   Based on the review of my records, it would be my 
 
              opinion that he had a 5% permanent impairmancy, based on the 
 
              residuals of his knee arthroscopy which consisted of 
 
              resection of the large medial plica and a partial medial 
 
              meniscectomy for a torn degenerated medial meniscus.
 
         
 
                                                
 
                                                         
 
         (Claimant's Exhibit 2, page 10)
 
         
 
              Claimant has also been examined by Jerome G. Bashara, M.D., 
 
         on April 1, 1986.  With regard to claimant's impairment, Dr. 
 
         Bashara opines:
 
         
 
              F. & S.H.:     He is married and is retired.
 
         
 
              P.X.           On physical exam today of the right 
 
                             knee, he lacks 5 degrees of full 
 
                             extension and lacks 15 degrees of 
 
                             flexion.  He has mild tenderness over 
 
                             the medial compartment. His ligaments 
 
                             are stable.  McMurray's test is 
 
                             negative.  Lockman's test is negative.  
 
                             There is no efusion.  He has some very 
 
                             mild quad atrophy.
 
         
 
                             On physical exam today of the left knee, 
 
                             he lacks 10 degrees of full extension 
 
                             and lacks 10 degrees of flexion.  He has 
 
                             some moderate quad atrophy.  His 
 
                             ligaments are stable.  McMurray's test 
 
                             is negative.
 
         
 
              X-RAYS:        X-rays were reviewed, left knee 
 
                             arthrogram dated 12-2-81 Mercy Hospital 
 
                             Medical Center, normal.
 
         
 
                             Linn County Orthopedists dated 3-9-83, 
 
                             left knee, there is a cystic area one 
 
                             centimeter in diameter over the weight 
 
                             bearing surface of the medial femoral 
 
                             condyle.
 
         
 
                             X-rays taken today, weight bearing and 
 
                             AP views, of both of his knees and a 
 
                             lateral of both knees.  He again has a 
 
                             small one centimeter in diameter cystic 
 
                             area, medial femoral condyle.
 
         
 
              DIAGNOSES:     1.  Healed residuals of internal
 
                                 derangement, [sic] both knees with
 
                                 a tear of the medial meniscus, left
 
                                 knee treated surgically, work
 
                                 related; and
 
         
 
                             2.  A tear of the medial meniscus, 
 
                             right
 
                                 knee, treated surgically, work
 
                                 related.
 
         
 
                             I would give the patient a 10% permanent 
 
                             partial physical impairment of his left 
 
                             knee related to the above injury and 
 
                                                
 
                                                         
 
                                                 subsequent surgery.  I would give the 
 
                             patient a 5% permanent partial physical 
 
                             impairment for a subtotal medial 
 
                             meniscectomy and 5% for a mild loss of 
 
                             motion.
 
         
 
                             I would give the patient a 10% permanent 
 
                             partial physical impairment of his right 
 
                             lower extremity for his work related 
 
                             injury.  I would give the patient a 5% 
 
                             permanent partial physical for a medial 
 
                             meniscectomy and 5% for a mild loss of 
 
                             motion.
 
         
 
         (Cl. Ex. 1, p. 2)
 
         
 
              Claimant testified that he filed for early retirement because 
 
         he wanted to avoid possibly losing seniority in a strike.  
 
         Claimant also stated that he retired because he was having 
 
         problems with his knee.  On cross-examination, claimant stated 
 
         that he retired because his knee was bothering him.  Claimant's 
 
         last day working for defendant Wilson Foods Corporation was April 
 
         22, 1983.  Since his retirement claimant has worked for a car 
 
         dealer picking up cars around the state for delivery to the 
 
         dealer.  Claimant now is working for a security firm as a security 
 
 
 
                          
 
                                                         
 
         guard.  Claimant opines that this job involves mainly sitting and 
 
         that he drives a cart when he makes his rounds.
 
         
 
              Roger Scriven testified that he worked with claimant in 
 
         1981, 1982 and 1983 and that he noticed claimant was limping.
 
         
 
                                APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                  ANALYSIS
 
         
 
              Claimant argues that he suffers permanent disability to the 
 
         right knee, and therefore, he has met the first requirement of 
 
         the second injury compensation statute that he must have a prior 
 
         loss of use of the leg.  See Iowa Code section 85.64.  The deputy 
 
         accurately analyzed this issue in the review-reopening decision:
 
         
 
                   Claimant has shown a loss of use of his left knee with 
 
              resulting permanent disability.  We conclude claimant has 
 
              not shown a loss of use with permanent disability to his 
 
              right knee, however.  Dr. Robb, who treated claimant for 
 
              his right knee injury, released claimant for work without 
 
              assigning a permanent partial impairment rating.  He had 
 
              previously found claimant to have good range of motion of 
 
              the right knee and to be making a good recovery.  Dr. Robb 
 
              only once examined claimant after his work return.  That 
 
              was for a minor right knee injury in 1971.  The evidence 
 
              does not show that claimant has seen other physicians on 
 
              account knee problems. When released by Dr. Robb, claimant 
 
              returned to work at the same job as he had performed 
 
              previously.  The evidence does not suggest his job was or 
 
              needed modification on account of problems with his right 
 
              knee.  Claimant's own testimony concerning his decision to 
 
              retire in 1983 relates primarily to the impact of his left 
 
              knee's condition in that decision. He mentioned both knees 
 
              only on subsequent questioning and not of his own accord.  
 
              In April 1985, some fourteen years after claimant's right 
 
              knee injury, Dr. Bashara assigned a ten percent permanent 
 
              partial impairment to the knee based on limitation of 
 
              motion Bashara found and claimant's surgery.  We are not 
 
              persuaded that the opinion and findings of an examining 
 
              physician given some fourteen years after an injury is 
 
              sufficient to override the other evidence suggesting 
 
              claimant suffered no permanent disability on account of his 
 
              1970 injury.  We also note that any loss of use, if present 
 
              some fourteen years beyond the injury, was at best minimal.  
 
              Claimant's claim against the Second Injury Fund fails.
 
         
 
         (RR Dec., p. 6)
 
         
 
              It is easy to see why claimant and his attorney filed this 
 
         action and appeal.  Although they presented some evidence that 
 
         claimant would be entitled to second injury fund benefits because 
 
                                                
 
                                                         
 
         of impairment and disability to the right lower extremity, the 
 
         greater weight of evidence indicates otherwise.  Claimant's 
 
         treating physician for the right lower extremity injury did not 
 
         indicate claimant had any impairment.  Claimant continued to live 
 
         and work but did not see a physician for right lower extremity 
 
         problems until seeing Dr. Bashara some 14 years later for the 
 
         purpose of an evaluation.  Furthermore, the testimony of Dr. 
 
         Bashara reveals that he gives part of his rating based on the 
 
         fact of surgery alone regardless of whether or not claimant had 
 
         total recovery.  When a person has total recovery they may be 
 
         entitled to temporary total disability but not permanent partial 
 
         disability.  Claimant is correct in stating that one determines 
 
         the extent of disability to the previously injured scheduled 
 
         member at the time of the second injury and not at some distant 
 
         preceding moment.  Claimant has not met his burden in proving he 
 
         has any permanent impairment or disability of his right lower 
 
         extremity.
 
         
 
              Claimant did not meet his burden in proving he had any 
 
         impairment to his right lower extremity at the time of his second 
 
         injury.
 
         
 
              The findings of fact, conclusions of law, and order of the 
 
         deputy are adopted herein.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant injured his right knee when he fell at work in 
 
         1970.
 
         
 
              2.  W. J. Robb, M.D., performed a medial menisectomy of the 
 
         right knee August 17, 1970.
 
         
 
              3.  Dr. Robb released claimant to work without assigning a 
 
         permanent partial impairment rating in September 1970.
 
         
 
              4.  Claimant returned to his same job and continued working 
 
         for Wilson until April 23, 1983.
 
         
 
              5.  Claimant injured his left knee November 23, 1981 when 
 
         she slipped at work.
 
         
 
              6.  James W. Turner, M.D., treated claimant and resected a 
 
         tear of the left medial meniscus on June 30, 1986.
 
         
 
              7.  Claimant's retirement was motivated in part by problems 
 
         other than his left knee condition.
 
         
 
              8.  Dr. Bashara examined claimant once in April 1986.
 
         
 
              9.  Claimant has a five percent permanent partial impairment 
 
         of the left lower extremity and minimal, if any, permanent 
 
         partial impairment of the right lower extremity.
 
         
 
              10.  Claimant has no permanent disability attributable to 
 
                                                
 
                                                         
 
         his right knee injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant is not entitled to additional permanent partial 
 
         disability benefits for his November 23, 1981 left lower 
 
         extremity injury.
 
         
 
              Claimant is not entitled to second injury fund benefits.
 
              
 
              WHEREFORE, the decision of the deputy is affirmed.
 
                                      
 
                                      ORDER
 
              
 
              THEREFORE, it is ordered:
 
              
 
              That claimant take nothing further from this proceeding.
 
         
 
              That claimant pay costs of these proceedings pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 20th day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Phillip Vonderhaar
 
         Attorney at Law.
 
         840 Fifth Avenue
 
         Des Moines, Iowa  50309
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         P.O. Box 2107
 
         500 MNB Building
 
         Cedar Rapids, Iowa  52406
 
         
 
         Ms. Cynthia Wickstrom
 
         Ms. Shirley Steffe
 
         Assistant Attorneys General
 
         Tort Claims Division
 
         HOOVER BUILDING
 
         Des Moines, Iowa  50319
 
         
 
         
 
         
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 3200; 3202
 
                                                 Filed June 20, 1988
 
                                                 David E. Linquist
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VIRGIL GILBREATH,
 
         
 
              Claimant,
 
                                                   File No. 689229
 
         vs.
 
         
 
         WILSON FOODS, INC.,                         A P P E A L
 
         
 
              Employer,                            D E C I S I 0 N
 
              Self-Insured,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         3200; 3202
 
         
 
              Claimant's second injury fund claim failed because he did 
 
         not establish the prior loss of one of the members listed in Iowa 
 
         Code section 85.64.  Although claimant presented some evidence 
 
         that claimant would be entitled to second injury fund benefits 
 
         because of impairment and disability to the right lower 
 
         extremity, the greater weight of evidence indicated otherwise.
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            VIRGIL GILBREAITH,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 689229
 
            WILSON FOODS, INC.,           :
 
                                          :        R E M A N D
 
                 Employer,                :
 
                 Self-Insured,            :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                 This case is on remand from the Iowa District Court 
 
            following judicial review.  Claimant seeks Second Injury 
 
            Fund benefits.  In order to be awarded benefits from the 
 
            Second Injury Fund, claimant must show that at the time of 
 
            his November 23, 1983 left knee injury, claimant had a prior 
 
            loss of his right leg.  Iowa Code section 85.64.  The 
 
            judicial review decision orders that this agency "determine, 
 
            using the functional method, the extent of Petitioner's 
 
            permanent partial disability to his right knee, if any, at 
 
            the time of the injury to Petitioner's left knee, and shall 
 
            determine the amount of Petitioner's claim against the 
 
            Second Injury Fund."
 
            
 
                 The judicial review decision found that the agency had 
 
            improperly relied on industrial disability factors, rather 
 
            than functional impairment factors, in assessing claimant's 
 
            right knee injuries.  Specifically, the decision regarded 
 
            discussion of claimant's return to work as indicative of an 
 
            industrial disability approach, even though claimant's right 
 
            knee injuries did not extend to the body as a whole.
 
            
 
                 It is noted that claimant's right knee injuries were 
 
            not assigned formal ratings of impairment.  Evidence that 
 
            claimant was able to return to work following those 
 
            injuries, therefore, is probative as to the extent of the 
 
            functional impairment of the right knee at that point in 
 
            time.  The district court correctly notes that a return to 
 
            work is a factor in assessing industrial disability, and 
 
            should not be a factor in assessing claimant's right knee 
 
            impairment.  However, a distinction exists between using a 
 
            return to work as a factor of industrial disability, and 
 
            using a return to work as evidence of the extent of 
 
            functional impairment of a body part.  In the absence of a 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            medical rating of impairment, claimant's ability to return 
 
            to work and perform the duties of his job is indicative of 
 
            the degree to which his knee was injured.  In this case, 
 
            consideration of claimant's ability to return to work 
 
            following his right knee injuries will be confined to the 
 
            extent the return to work sheds light on the degree of 
 
            claimant's right knee impairment.  
 
            
 
                 The medical evidence of claimant's right knee 
 
            impairment following his 1970 and 1971 right knee injuries 
 
            consists of Plaintiff's exhibit 3 (W.J. Robb, M.D., 1970 
 
            notes), Second Injury Fund exhibit F (Dr. Robb's 1985 letter 
 
            to claimant's attorney), and Plaintiff's exhibit 1 (Jerome 
 
            G. Bashara, M.D., 1986 evaluation).  Dr. Robb's 1970 notes 
 
            indicate that claimant underwent surgery in the form of a 
 
            medial meniscectomy on his right knee on August 17, 1970.  
 
            Dr. Robb describes the result of the surgery as "excellent."  
 
            Claimant was released to work on September 28, 1970.  On 
 
            October 6, 1970, Dr. Robb notes that claimant had right knee 
 
            soreness, but an "excellent range of motion."  Dr. Robb 
 
            added, "I did not take him off his job."  Exhibit 3.  
 
            
 
                 Claimant received a second injury to his right knee on 
 
            September 17, 1971.  Dr. Robb diagnosed internal 
 
            derangement, lateral meniscus, right knee.  Dr. Robb 
 
            prescribed conservative treatment, and postponed a decision 
 
            on further surgery depending on claimant's progress.
 
            
 
                 In a letter dated September 12, 1985, or nearly 14 
 
            years later, Dr. Robb again described the results of the 
 
            initial surgery as "excellent," and stated that following 
 
            the examination of claimant's right knee after his September 
 
            17, 1971 injury, claimant did not return to Dr. Robb for 
 
            further treatment.  Second Injury Fund exhibit F. 
 
            
 
                 Claimant injured his left knee in November 23, 1981.  
 
            In connection with that injury, claimant was examined by 
 
            Jerome Bashara, M.D., an orthopedic surgeon, on April 1, 
 
            1986.  Dr. Bashara issued ratings of impairment for 
 
            claimant's right and left knee injuries.  In regard to 
 
            claimant's right knee, Dr. Bashara found that claimant 
 
            lacked five degrees of full extension, and 15 degrees of 
 
            flexion.  Dr. Bashara gave claimant a permanent physical 
 
            impairment rating of 10 percent of the right lower 
 
            extremity, with five percent for claimant's prior surgery, 
 
            and five percent for loss of motion.
 
            
 
                 Exhibit F, Dr. Robb's 1985 letter to claimant's 
 
            attorney, contains the following statement by Dr. Robb in 
 
            reference to claimant's 1970 surgery (prior to claimant's 
 
            1971 injury): "No impairment of function was assigned to him 
 
            or to the knee for the torn meniscus and its excision."  The 
 
            judicial review decision determined that this statement was 
 
            ambiguous, in that it could be taken to mean either that no 
 
            impairment existed, or simply that no determination of the 
 
            degree of impairment was made. 
 
            
 
                 Dr. Robb stated that claimant's recovery from his first 
 
            right knee injury was excellent.  Dr. Robb also examined 
 
            claimant following his second right knee injury, and at that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            time diagnosed an internal derangement of the lateral 
 
            meniscus.  Claimant was able to return to work in spite of 
 
            his right knee injuries.  Claimant has testified that he 
 
            continued to experience pain for several years following his 
 
            right knee injuries.  Claimant, however, did not return to 
 
            Dr. Robb for further treatment.  There is no evidence of a 
 
            possible intervening cause for claimant's right knee 
 
            condition other than claimant's 1970 and 1971 work injuries.  
 
            In addition, generally speaking an intrusive surgery results 
 
            in some degree of impairment.
 
            
 
                 Dr. Bashara found claimant, in 1986, to have a loss of 
 
            range of motion in his right knee.  Dr. Bashara appears to 
 
            causally link claimant's right knee condition, observed in 
 
            1986, to claimant's 1970 and 1971 work injuries.  Dr. Robb's 
 
            statement that no impairment rating was given, having been 
 
            judicially determined to be ambiguous, cannot be said to 
 
            contradict Dr. Bashara's findings.  Thus, Dr. Bashara's 
 
            rating of 10 percent permanent partial impairment to the 
 
            right knee stands uncontroverted in the record.  
 
            
 
                 Dr. Bashara's evaluation of claimant took place several 
 
            years after the injuries to the right knee, and three years 
 
            after claimant's left knee injury.  However, the other 
 
            evidence on claimant's right knee condition is consistent 
 
            with Dr. Bashara's rating.  Claimant is determined to have 
 
            had a 10 percent permanent partial impairment of his right 
 
            lower extremity as a result of his 1970 and 1971 work 
 
            injuries.
 
            
 
                 In order to determine the liability of the Second 
 
            Injury Fund, it is necessary to determine the degree of 
 
            disability resulting from the 1983 injury, as well as 
 
            claimant's overall disability.  Dr. Bashara, an evaluating 
 
            physician, assigned claimant's left lower extremity a 
 
            permanent partial impairment rating of 10 percent as a 
 
            result of the 1983 work injury.  However, Dr. Turner, 
 
            claimant's treating physician, assigned claimant a permanent 
 
            partial impairment rating of five percent of the left lower 
 
            extremity.  Dr. Turner had more opportunity to observe 
 
            claimant's condition than Dr. Bashara.  Dr. Turner was in a 
 
            better position to gauge the overall effects of claimant's 
 
            left knee condition.  The deputy's arbitration decision gave 
 
            the greater weight to the opinion of Dr. Turner, and 
 
            concluded that claimant's left knee injury had resulted in 
 
            five percent permanent partial impairment of the left leg.  
 
            This finding was adopted in the appeal decision.  The 
 
            judicial review decision adopted Dr. Turner's rating as a 
 
            finding of fact as well.  The analysis, finding of fact, and 
 
            conclusion of law pertaining to claimant's left leg injury 
 
            contained in the June 20, 1988 appeal decision is adopted 
 
            herein.  Claimant's left knee injury of November 23, 1983, 
 
            resulted in a five percent permanent partial impairment of 
 
            the left leg.
 
            
 
                 Claimant has shown that his prior right knee injuries 
 
            did result in permanent physical impairment.  Claimant's 
 
            left knee injury also resulted in loss of use.  Claimant has 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            thus met the threshold criteria for Second Injury Fund 
 
            entitlement.  
 
            
 
                 Claimant's cumulative disability subsequent to the 
 
            second injury must be determined.  Claimant's physical 
 
            impairment as a result of his injuries, as noted above, was 
 
            five percent of the left leg and 10 percent of the right 
 
            leg.  Claimant was born on May 25, 1919.  He was therefore 
 
            64 years old at the time of his November 23, 1983 injury, 
 
            and 67 years old at the time of the arbitration hearing in 
 
            1986.  Claimant had worked in meat packing, as well as for 
 
            John Deere as an assembly line worker, and as a grocery 
 
            store produce manager.  Claimant retired voluntarily, in 
 
            part because of a strike at his employer's plant.  Claimant 
 
            was working as a security guard at the time of the hearing.  
 
            Claimant has a tenth grade education.  
 
            
 
                 Claimant's age affects his industrial disability.  
 
            Compared to a younger worker with the same injury, claimant 
 
            has lost less future earning capacity as a result of his 
 
            injury.  The approach of later years when it can be 
 
            anticipated that under normal circumstances a worker would 
 
            be retiring is, without some clear indication to the 
 
            contrary, a factor which can be considered in determining 
 
            the loss of earning capacity or industrial disability which 
 
            is causally related to the injury.  Becke v. Turner-Busch, 
 
            Inc., 34 Report of the Iowa Industrial Commissioner 34 
 
            (Appeal Decision 1979); Hainey v. Protein Blenders, Inc., 
 
            (Appeal Decision October 18, 1985).
 
            
 
                 Based on these and all other appropriate factors for 
 
            determining industrial disability, claimant is determined to 
 
            have an industrial disability of five percent, or 25 weeks 
 
            of benefits.  Under the Second Injury Fund statute, claimant 
 
            is only entitled to an award of benefits from the Fund if 
 
            the overall industrial disability exceeds the disability 
 
            from the current injury and the prior injuries.  Claimant's 
 
            disability from his 1970 and 1971 right knee injuries is 10 
 
            percent of the right leg, or 22 weeks of benefits.  
 
            Claimant's disability from his 1983 left knee injury is five 
 
            percent of the left leg, or 11 weeks of benefits.  The 
 
            Second Injury Fund of Iowa is therefore entitled to a credit 
 
            of 33 weeks.  Since the credit exceeds claimant's overall 
 
            industrial disability, claimant shall take nothing from the 
 
            Second Injury Fund of Iowa. 
 
            FINDINGS OF FACT
 
            1.  Claimant suffered an injury to his right knee in 1970.
 
            2.  Claimant underwent a medial meniscectomy on his right 
 
            knee on August 17, 1970.
 
            3.  Claimant again injured his right knee on September 17, 
 
            1971.
 
            4.  Claimant injured his left knee on November 23, 1983.
 
            5.  Claimant was given a rating of permanent partial 
 
            impairment of 10 percent of the right lower extremity by Dr. 
 
            Bashara.
 
            6.  Claimant had a ten percent impairment of the right leg 
 
            at the time of his November 23, 1983 injury.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            7.  Claimant was given a rating of permanent partial 
 
            impairment of ten percent of the left lower extremity by Dr. 
 
            Bashara, and five percent of the left lower extremity by Dr. 
 
            Turner.
 
            8.  Claimant was born on May 25, 1919.
 
            9.  Claimant's prior work experience consisted of assembly 
 
            line work, and grocery store management. 
 
            10. Claimant retired voluntarily at age 63.
 
            11. Claimant was employed as a security guard at the time of 
 
            the hearing.
 
            12. Claimant has a tenth grade education.
 
            13. Claimant has a five percent loss of earning capacity as 
 
            a result of his 1970, 1971, and 1983 injuries. 
 
            CONCLUSIONS OF LAW
 
            The opinion of Dr. Turner in regards to claimant's left leg 
 
            should be given greater weight than the opinion of Dr. 
 
            Bashara.
 
            As a result of his work injuries in 1970 and 1971, claimant 
 
            has a permanent partial impairment of ten percent of the 
 
            right leg.
 
            As a result of his work injury in 1983, claimant has a 
 
            permanent partial impairment of five percent of his left 
 
            leg.
 
            Claimant's overall industrial disability as a result of the 
 
            cumulative effect of his 1970, 1971, and 1983 work injuries 
 
            is five percent.
 
            Claimant is not entitled to an award of benefits from the 
 
            Second Injury Fund of Iowa.
 
            ORDER
 
            THEREFORE, it is ordered:
 
            That claimant take nothing further from this proceeding.
 
            That claimant pay the costs of these proceedings pursuant to 
 
            343 IAC 4.33.
 
            
 
            
 
                 Signed and filed this ____ day of April, 1991.
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Phil Vonderhaar
 
            Attorney at Law
 
            840 Fifth Avenue
 
            Des Moines, Iowa 50309
 
            
 
            Mr. John M. Bickel
 
            Attorney at Law
 
            800 MNB Bldg.
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            P.O. Box 2107
 
            Cedar Rapids, Iowa 52406
 
            
 
            Ms. Shirley A. Steffe
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            3203; 1803
 
            Filed April 30, 1991
 
            Clair R. Cramer
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            VIRGIL GILBREAITH,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 689229
 
            WILSON FOODS, INC.,           :
 
                                          :        R E M A N D
 
                 Employer,                :
 
                 Self-Insured,            :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            3203, 1803
 
            On remand from district court, claimant's prior right knee 
 
            impairment at time of later left knee injury was determined 
 
            for Second Injury Fund purposes.  No ratings of impairment 
 
            existed for claimant's right knee at the time of his later 
 
            injury.  Although the district court decision remanding this 
 
            case concluded that the agency had improperly relied on 
 
            claimant's return to work as an industrial disability factor 
 
            in a scheduled injury case, it was held that claimant's 
 
            ability to return to work was again properly considered as 
 
            indicative of the extent of his right knee impairment, and 
 
            was not used as an industrial disability factor.  Claimant's 
 
            age (67) resulted in no award against Second Injury Fund. 
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            BERT WAMPLER,                 :
 
                                          :
 
                 Claimant,                :       File No. 689489
 
                                          :
 
            vs.                           :        R E V I E W - 
 
                                                 R E O P E N I N G
 
                                          :      
 
            JOHN DEERE DUBUQUE WORKS,     :       D E C I S I O N
 
                                          : 
 
                 Self-Insured,            :
 
                 Employer,                :      
 
                 Defendant.               :
 
            ----------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in review-reopening brought by 
 
            Bert Wampler, claimant, as a result of injuries to his neck 
 
            which occurred on August 19, 1980.  An agreement for 
 
            settlement indicating 42 percent industrial disability was 
 
            signed and filed on January 18, 1990.  Claimant has now 
 
            filed a review-reopening petition claiming a change in 
 
            condition.  
 
            
 
                 This case was heard and fully submitted in Dubuque, 
 
            Iowa, on June 30, 1994.  Claimant was represented by Michael 
 
            J. Coyle and Micheal Shubatt, Attorneys at Law.  Employer 
 
            was represented by Leo A. McCarthy and Jennifer Clemens, 
 
            Attorneys at Law.  The record in the proceeding consists of 
 
            joint exhibits 1 through 15 and testimony from claimant, 
 
            Jeannette Wampler, M.L. McClenahan, M.D., James Deiter, Gary 
 
            Nebel, Richard Schnering, and Jimmie Gage.  
 
            
 
                                      ISSUES
 
            
 
                 The issues presented for determination are as follows:
 
            
 
                 .  Whether claimant suffered a change in condition 
 
            which caused permanent partial disability; and
 
            
 
                 .  The commencement date for payment of permanent 
 
            partial disability.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony of the witnesses and having 
 
            examined all of the evidence in the record, the deputy 
 
            industrial commissioner finds:
 
            
 
                 Claimant, Bert Wampler, began work for John Deere 
 
            Dubuque Works of Deere and Company in February 1964.  
 
            Claimant was injured on August 19, 1980, when driving a fork 
 
            lift truck.  The injury was to claimant's cervical spine and 
 
            resulted in several surgeries including disc removal and 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            spine fusion surgery.  Claimant returned to work with Deere 
 
            and Company until he lost his employment for reasons not 
 
            attributable to his employer.  
 
            
 
                 Claimant entered into an agreement for settlement which 
 
            was approved on January 18, 1990.  The settlement consisted 
 
            of 42 percent industrial disability which compensated 
 
            claimant through April 23, 1990.  
 
            
 
                 After the separation of employment and after the 
 
            settlement, claimant's cervical spine condition began to 
 
            worsen.  On March 18, 1993, claimant was diagnosed with a 
 
            new herniated cervical disc at C3/4.  The disc was 
 
            determined to be a work-related incident.  (exhibit 2, page 
 
            2).  
 
            
 
                 As a result of the new herniated disc, it was 
 
            determined that claimant did not have an increase in 
 
            functional permanent partial impairment.  Furthermore, 
 
            claimant did not have an increase in work restrictions.  
 
            Claimant had very severe work restrictions in place at the 
 
            time of his settlement on January 18, 1990.  Furthermore, 
 
            claimant had a significant permanent partial impairment that 
 
            was also in place at the time of settlement.  
 
            
 
                 It is found that the only change in condition related 
 
            to the August 19, 1980 injury, was an additional herniated 
 
            disc at C3/4.  It is found that claimant did not suffer 
 
            increased work restrictions or permanent functional 
 
            impairment as a result of the new diagnosis.  It is also 
 
            found that claimant did not suffer a change of employment 
 
            which can be attributable to the employer. 
 
            
 
                 At the time of hearing claimant was approximately 54 
 
            years of age with a work history as a manual laborer.  
 
            Claimant has an eighth grade education and spent the 
 
            majority of his work life with John Deere Dubuque Works.
 
            
 
                         REASONING AND CONCLUSIONS OF LAW
 
            
 
                 The first issue presented for determination is whether 
 
            claimant suffered additional industrial disability due to a 
 
            change in condition.  
 
            
 
                 Upon review-reopening, claimant has the burden to show 
 
            a change in condition related to the original injury since 
 
            the original award or settlement was made.  The change may 
 
            be either economic or physical.  Blacksmith v. All-American, 
 
            Inc., 290 N.W.2d 348 (Iowa 1980); Henderson v. Iles, 250 
 
            Iowa 787, 96 N.W.2d 321 (1959).  A mere difference of 
 
            opinion of experts as to the percentage of disability 
 
            arising from an original injury is not sufficient to justify 
 
            a different determination on a petition for 
 
            review-reopening.  Rather, claimant's condition must have 
 
            worsened or deteriorated in a manner not contemplated at the 
 
            time of the initial award or settlement before an award on 
 
            review-reopening is appropriate.  Bousfield v. Sisters of 
 
            Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  A failure of a 
 
            condition to improve to the extent anticipated originally 
 
            may also constitute a change of condition.  Meyers v. 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa Ct. 
 
            App. 1978).
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. 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.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the 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.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  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.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 It is held that claimant is 45 percent industrially 
 
            disabled as a result of the August 19, 1980 injury.  This 
 
            allows claimant go receive an additional 3 percent permanent 
 
            partial disability due to a change in condition.  Claimant's 
 
            only change was a herniated disc at C3/4.  Since no change 
 
            in work restrictions or permanent functional impairment were 
 
            incurred, the increase in industrial disability must be held 
 
            to be quite small.  However, even a small change in 
 
            industrial disability must be compensated appropriately.  
 
            There is no doubt that claimant would have a loss of access 
 
            to the job market as a result of an additional diagnosed 
 
            herniated disc.  However, it must be concluded that the loss 
 
            of access would be quite small in light of the severe prior 
 
            permanent work restrictions and the high permanent partial 
 
            impairment.  Therefore, claimant is entitled to an 
 
            additional 3 percent permanent partial disability to the 
 
            body as a whole pursuant to Iowa Code section 85.34(2)(u).
 
            
 
                 The second issue presented to determination is the 
 
            commencement date of permanent partial disability benefits 
 
            under Iowa Code section 85.34(2)(u).  
 
            
 
                 Interest accrues on awards of permanent disability in 
 
            review-reopening proceedings from a prior award or 
 
            settlement from the date of the final agency decision 
 
            awarding further review-reopening benefits.  Bousfield v. 
 
            Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).
 
            
 
                 Compensation begins at the termination of the healing 
 
            period.  Section 85.34(2).  In this situation claimant was 
 
            compensated under the terms of the agreement for settlement 
 
            until April 23, 1990.  Therefore, the commencement date must 
 
            be held to be April 24, 1990, since no permanent partial 
 
            disability benefits were paid after that date.  
 
            
 
                 However, under a review-reopening petition, interest 
 
            does not accrue until the award is actually entered.  
 
            Therefore, interest accrues on this additional industrial 
 
            disability commencing on the date of the review-reopening 
 
            order.
 
            
 
                                      ORDER
 
            
 
                 IT IS, THEREFORE, ORDERED:
 
            
 
                 Employer, John Deere Dubuque Works, self-insured, is to 
 
            pay claimant fifteen (15) weeks of permanent partial 
 
            disability benefits at the rate of two hundred forty and 
 
            14/100 dollars ($240.14) per week for the period beginning 
 
            April 24, 1990.  
 
            
 
                 It is further ordered that interest will accrue 
 
            pursuant to Iowa Code section 85.30 commencing on the date 
 
            of this order.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 It is further ordered that all accrued benefits are to 
 
            be paid in a lump sum.
 
            
 
                 It is further ordered that the costs of this action are 
 
            assessed against the employer, self-insured, pursuant to 
 
            rule 343 IAC 4.33.
 
            
 
                 It is further ordered that employer, self-insured, file 
 
            claim activity as requested by this agency pursuant to rule 
 
            343 IAC 3.1.
 
            
 
                 Signed and filed this __________ day of August, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Michael J. Shubatt
 
            Mr. Michael Coyle 
 
            Attorneys at Law
 
            200 Security Bldg
 
            151 W. 8th St. 
 
            Dubuque, Iowa  52001-6832
 
            
 
            Mr. Leo A. McCarthy
 
            Ms. Jennifer Clemens
 
            Attorneys at Law
 
            222 Fischer Bldg
 
            PO Box 239 
 
            Dubuque, Iowa  52004-0239
 
            
 
            
 
                 
 
            
 
 
            
 
            
 
            
 
            
 
                                            51803 53800
 
                                            Filed August 4, 1994
 
                                            Marlon D. Mormann
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            BERT WAMPLER,  
 
                      
 
                 Claimant,                     File No. 689489
 
                      
 
            vs.                                  R E V I E W - 
 
                                               R E O P E N I N G
 
                            
 
            JOHN DEERE DUBUQUE WORKS,            D E C I S I O N
 
                       
 
                 Self-Insured,  
 
                 Employer,      
 
                 Defendant.     
 
            ------------------------------------------------------------
 
            51803 53800
 
            
 
            Claimant was a 54-year-old John Deere production worker who 
 
            was re-employed by the employer in good faith.  Claimant 
 
            settled his case in January 1990.  In 1993 claimant had an 
 
            additional diagnosis of a herniated cervical disc.  No 
 
            additional work restrictions or permanent impairment were 
 
            imposed.  There were no other changes in the circumstances 
 
            other than an additional diagnosis.  The prior industrial 
 
            disability settlement was 42 percent.  Claimant was awarded 
 
            an additional 3 percent permanent partial disability due to 
 
            the additional diagnosis of a herniated disc.
 
            The commencement date of permanent partial disability was 
 
            determined to start from the date of the last payment of 
 
            permanent partial disability.  Interest was ordered to be 
 
            paid from the date of the review-reopening decision as 
 
            opposed to the commencement date.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         SHIRLEY E. WILLIS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                   File No. 691096
 
         LEHIGH PORTLAND CEMENT CO.,
 
                                                      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
 
         
 
              Claimant appeals from a review-reopening decision which 
 
         concluded that claimant is entitled to permanent partial 
 
         disability from March 15, 1985 until her death on June 16, 1985, 
 
         and from a ruling upon application for rehearing which concluded 
 
         that claimant is entitled to healing period benefits from July 
 
         28, 1984 through January 18, 1985 and that claimant is entitled 
 
         to permanent partial benefits from January 19, 1985 until her 
 
         death on June 16, 1985.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening proceeding, claimant's exhibits 1 through 9 and 
 
         the stipulations of the parties.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                   ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
                     I.  Whether or not the deputy commissioner erred in 
 
              applying issue preclusion to this matter.
 
         
 
                    II.  Whether or not the deputy commissioner erred in 
 
              failing to award permanent partial disability benefits to 
 
              claimant for times preceding her death.
 
         
 
                   III.  Whether or not the deputy commissioner erred by 
 
              not including a service charge for the medical expenses 
 
              awarded.
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be reiterated 
 
         herein.
 
         
 

 
              Briefly stated, claimant sustained a work injury on December 
 
         31, 1981 and has been paid healing period-benefits for the 
 
         periods she was off work following that injury (January 1, 1982 
 
         through May 17, 1982; October 17, 1983 through January 3, 1984; 
 
         March 22, 1984 through March 14, 1985).  From March 1,5, 1985 
 
         until June 15, 1985 claimant was paid permanent partial 
 
         disability benefits.  Claimant died on June 16, 1985 from causes 
 
         unrelated to her work injury of December 31, 1981.
 
         
 
              A review-reopening decision filed October 24, 1984 awarded 
 
         claimant healing period benefits for the periods she was off work 
 
         in 1982, 1983, 1984 and made a running award of healing period 
 
         benefits commencing July 28, 1984.
 
         
 
                                APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision and 
 
         ruling on application for rehearing are appropriate to the issues 
 
         and evidence.
 
         
 
              Division of Industrial Services Rule 343-4.24 states:
 
         
 
                   Any party may file an application for rehearing of 
 
              a decision in any contested case by a deputy 
 
              commissioner within twenty days after the issuance of 
 
              the decision.  A copy of such application shall be 
 
              timely mailed by the applicant to all parties of record 
 
              not joining therein.  Such an application for rehearing 
 
              shall be deemed denied unless the deputy commissioner 
 
              rendering the decision grants the application within 
 
              twenty days after its filing.
 
         
 
         Section 86.24 allows for appeal of decisions of deputies to the 
 
         industrial commissioner.
 
         
 
              Division of Industrial Services Rule 343-4.27 states:
 
         
 
                   Except as provided in 4.2 and 4.25, an appeal to 
 
              the commissioner from a decision, order or ruling of a 
 
              deputy commissioner in contested case proceedings where 
 
              the proceeding was commenced after July 1, 1975, shall 
 
              be commenced within twenty days of the filing of the 
 
              decision, order or ruling by filing a notice of appeal 
 
              with the industrial commissioner.  The notice shall be 
 
              served on the opposing parties as provided in 4.13. An 
 
              appeal under this section shall be heard in Polk 
 
              County or in any location designated by the 
 
              industrial commissioner.
 
         
 
                                 ANALYSIS
 
         
 
              The first two issues claimant asserts on appeal are 
 
         interrelated and will be considered together here.  Claimant is 
 
         seeking throughout this proceeding permanent partial disability 
 
         benefits for the periods that she was working in 1982, 1983 and 
 
         1984.  However, claimant's entitlement to benefits for those 
 
         periods was determined by a previous review-reopening,decision 
 
         filed October 24, 1984.  The prehearing order A filed in that 
 
         action indicated that at issue was whether claimant was entitled 
 
         to temporary, healing period or permanent partial disability.  
 
         The hearing deputy in his decision stated the same thing in 
 
         another way: "a determination of the nature and extent of 
 
         disability related to that injury."  In that decision the deputy 
 

 
         
 
         
 
         
 
         WILLIS V. LEHIGH PORTLAND CEMENT CO.
 
         Page   3
 
         
 
         
 
         stated that claimant's returns to work represented interruptions 
 
         in her healing period but not terminations of her healing period. 
 
          See review-reopening decision filed October 24, 1984 page 9. As 
 
         no request for rehearing nor appeal was made from that decision, 
 
         it is the final agency decision with regard to claimant's 
 
         entitlement to benefits for the periods it covered (December 31, 
 
         1981 to July 27, 1984).  Therefore, claimant may not raise this 
 
         issue in this later proceeding.  The deputy hearing the present 
 
         case did not have jurisdiction to reverse the prior final agency 
 
         decision nor does the undersigned, once that prior decision 
 
         became a final agency decision.
 
         
 
              Even if appeal had been made from the decision of October 
 
         24, 1984, it is likely that the deputy would have been affirmed 
 
         on this aspect of claimant's entitlement to benefits.  See 
 
         Riesselman v. Carroll Health Center, III Iowa Industrial 
 
         Commissioner Report 209 (1982).
 
         
 
              The last issue claimant raises on appeal concerns a service 
 
         charge for late payment of a medical bill which claimant 
 
         incurred.  Iowa Code section 85.27 does not entitle claimant to 
 
         reimbursement from defendants for this charge.
 
         
 
              The deputy's analysis of claimant's entitlement to healing 
 
         period for the period of July 28, 1984 to January 18, 1985 and 
 
         permanent partial disability for the period of January 19, 1985 
 
         to June 16, 1985 set out in the review-reopening decision and 
 
         subsequent ruling on rehearing is accurate and adopted herein.
 
         
 
              The findings of fact, conclusions of law and order of the 
 
         review-reopening as modified by the ruling on rehearing are 
 
         adopted.
 
         
 
         
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant's permanent neck, shoulder, and back conditions 
 
         result from her injury of December 31, 1981.
 
         
 
              2.  Claimant sustained an industrial loss of earning 
 
         capacity on account of her injury as a result of her substantial 
 
         functional impairment; her limited education and work experience; 
 
         and her status as a middle age worker.
 
         
 
              3.  Claimant's condition stabilized and she reached maximum 
 
         medical improvement on January 18, 1985.  Claimant's healing 
 
         period terminated on that date.
 
         
 
              4.  Defendants paid claimant healing period benefits from 
 
         January 18, 1985 to March 15, 1985.
 
         
 
              5.  Claimant received permanent partial disability benefits 
 
         from March 15, 1985 through June 15, 1985.
 
         
 
              6.  Claimant died June 16, 1985 from causes unrelated to her 
 
         compensable injury of December 31, 1981.
 
         
 
              7.  Claimant's industrial loss extended to her death date.
 

 
         
 
         
 
         
 
         WILLIS V. LEHIGH PORTLAND CEMENT CO.
 
         Page   4
 
         
 
         
 
         
 
              8.  Claimant had compensable medical expenses of $45.00 and 
 
         $46.00 from Sick Room Service and Radiologists of Mason City, 
 
         P.C., respectively.
 
         
 
              9.  Claimant received a service charge of $12.24 from Sick 
 
         Room Service.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant has established a causal relationship between her 
 
         injury of December 31, 1981 and the disability on which she bases 
 
         her claim.
 
         
 
              Claimant is entitled to healing period benefits from July 
 
         28, 1984 through January 18, 1985.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         benefits from January 19, 1984 until her death on June 16, 1985.
 
         
 
              Defendants are entitled to a credit against healing period 
 
         benefits paid claimant from January 19, 1984 to March 15, 1985.
 
         
 
              Claimant is entitled to payment of medical costs of $45.00 
 
         and $46.00 with Sick Room Service and Radiologist of Mason City, 
 
         P.C.
 
         
 
              Claimant is not entitled to payment of a service charge of 
 
         $12.2
 
         4.
 
              WHEREFORE the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant healing period benefits from 
 
         July 28, 1984 through January 18, 1985 at a rate of $231.37.
 
         
 
              That defendants pay claimant permanent partial disability 
 
         benefits from January 19, 1985 to June 16, 1985 at the rate of 
 
         two hundred thirty-one and 37/100 dollars ($231.37). Defendants 
 
         receive credit for excess healing period benefits paid and 
 
         permanent partial disability benefits paid.
 
         
 
              That defendants pay claimant medical costs as delineated in 
 
         the above conclusions of law.
 
         
 
              That defendants pay the costs of the review-reopening 
 
         proceeding and claimant pay the costs of the appeal including the 
 
         transcription of the hearing.
 
         
 
         
 
         
 
              Signed and filed this 25th day of June, 1987.
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 

 
         
 
         
 
         
 
         WILLIS V. LEHIGH PORTLAND CEMENT CO.
 
         Page   5
 
         
 
         
 
         Attorney at Law
 
         P.O. Box 679
 
         Mason City, Iowa 50401
 
         
 
         Mr. Jon Stuart Scoles
 
         Mr. C. Bradley Price
 
         Mr. Mark A. Wilson
 
         Attorneys at Law
 
         30-4th St. NW-Box 1953
 
         Mason City, Iowa 50401
 
         
 
 
            
 
 
 
 
 
         
 
 
 
                                                 1802 - 1803
 
                                                 Filed June 25, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         SHIRLEY E. WILLIS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 691096
 
         LEHIGH PORTLAND CEMENT CO.,
 
                                                  A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         
 
         1802 - 1803
 
         
 
              Claimant sustained a work injury on December 31, 1981 and 
 
         was paid healing period benefits for the periods she was off work 
 
         following that injury (January 1, 1982 through May 17, 1982; 
 
         October 17, 1983 through January 3, 1984; and March 22, 1984 
 
         through March 14, 1985).  From March 15, 1983 until June 15, 1985 
 
         claimant was paid permanent partial disability benefits.  
 
         Claimant died on June 16, 1985 from causes unrelated to her work 
 
         injury of December 31, 1981.
 
         
 
              A review-reopening decision filed October 24, 1984 awarded 
 
         healing period benefits for the periods she was off work in 1982, 
 
         1983, 1984 and made a running award of healing period benefits 
 
         commencing July 28, 1984.
 
         
 
              On appeal claimant sought permanent partial disability 
 
         benefits for the periods that she was working in 1982, 1983 and 
 
         1984.  However, claimant's entitlement to benefits for those 
 
         periods was determined by a previous review-reopening decision 
 
         filed October 24, 1984.  Therefore, claimant may not raise this 
 
         issue in this later proceeding.  Affirmed.
 
         
 
         
 
         
 
 
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM GREEN,                :
 
                                          :        File No. 691194
 
                 Claimant,                :
 
                                          :         R E V I E W -
 
            vs.                           :
 
                                          :       R E O P E N I N G
 
            IOWA STATE PENITENTIARY,      :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in review-reopening upon the 
 
            petition of claimant on April 16, 1986.  Claimant sustained 
 
            an injury arising out of and in the course of his employment 
 
            on December 29, 1981.  A hearing was held at the Henry 
 
            County Courthouse on August 25, 1983.  Subsequent to the 
 
            filing of an arbitration decision, a second review-reopening 
 
            proceeding was initiated.  The initial review-reopening 
 
            decision was filed on January 19, 1984.
 
            
 
                 The hearing in the instant matter was held on June 27, 
 
            1990 at the Des Moines County Courthouse in Burlington, 
 
            Iowa.  No one testified at the hearing for either claimant 
 
            or defendant.  However, the following exhibits were admitted 
 
            as evidence:  claimant's exhibits 1-3 and defendant's 
 
            exhibits A-F.
 
            
 
                                      issues
 
            
 
                 The sole issues presented for determination are:  1) 
 
            Whether claimant has experienced a change of condition since 
 
            the prior review-reopening hearing and, if so, the extent of 
 
            his current industrial disability; and, 2) Whether claimant 
 
            is entitled to additional medical benefits.
 
            
 
                             
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 
            
 
                 The deputy industrial commissioner assigned to the 
 
            initial review-reopening proceeding found that claimant had 
 
            an industrial disability in the amount of 10 percent.  She 
 
            also found claimant was entitled to certain medical 
 
            benefits.
 
            
 
                 Following the filing of the review-reopening decision, 
 
            claimant again filed a petition for review-reopening.  In 
 
            his deposition of February 25, 1987, claimant testified at 
 
            pages 40-42:
 
            
 
                 Q  Okay.  Did you receive any money as a result of 
 
                 that proceeding?
 
            
 
                 A  Yes.
 
            
 
                 Q  Okay.  Do you recall how much that was?
 
            
 
                 A  Not the exact figure, no, I don't.
 
            
 
                 Q  Can you tell me about how much money you got?
 
            
 
                 A  I received a little over 4,000.
 
            
 
                 Q  How has your back condition changed since then?
 
            
 
                 A  It's worsened.
 
            
 
                 Q  And how is that?
 
            
 
                 A  Well, length of time I can stay on my feet and 
 
                 ability for movement has changed.
 
            
 
                 Q  How has that changed?
 
            
 
                 A  Just gets tighter quicker.  Takes a lot longer 
 
                 to loosen up.
 
            
 
                 Q  Is it tight when you get up in the morning?
 
            
 
                 A  Yes.
 
            
 
                 Q.  Does it loosen up as you move around during 
 
                 the day?
 
            
 
                 A  Periodically, yes.
 
            
 
                 Q  Anything else different or--
 
            
 
                 A  Increased popping in my hip after the injury 
 
                 has increased.
 
            
 
                 Q  Now, is this popping in your hip related to the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 back injury?
 
            
 
                 A  Yes, it is.
 
            
 
                 Q  Okay.  Anything else?
 
            
 
                 A  No.
 
            
 
                 Q  So your complaint then is that your back has 
 
                 gotten--become tighter more quickly and you have 
 
                 more pain when moving around?
 
            
 
                 A  Yes.
 
            
 
                 Q  Is that the-- And when did that start to 
 
                 change?
 
            
 
                 A  It's been changing ever since I've gotten hurt.
 
            
 
                 Q  Okay.  Do you believe you're a hundred percent 
 
                 disabled, Mr. Green?
 
            
 
                 A  I'm not a doctor.  I can't base an opinion like 
 
                 that.
 
            
 
                 Q  Do you feel that you're completely unqualified 
 
                 and unable to perform any type of work?
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 A  I'm not saying I'm not qualified.  I can't get 
 
                 work because of it, basically.
 
            
 
                 Q  If a job were to come open for which you were 
 
                 qualified, would you feel that you were able to 
 
                 take it?
 
            
 
                 A  I'd try and take it, yes.
 
            
 
                 Q  What kind of work do you feel that you're 
 
                 qualified to do, Mr. Green?
 
            
 
                 A  Actually, only occupation I have that I've been 
 
                 trained at is correctional officer or painting and 
 
                 sandblasting.
 
            
 
                 Q  You can also drive a heavy truck; is that 
 
                 right?
 
            
 
                 A  No, not now.  I couldn't pass the physical.
 
            
 
                 Q  How do you know that you can't pass a physical?
 
            
 
                 A  It's part of the [DOT ruling that no back 
 
                 injuries.
 
            
 
                 Q  Can you drive a one-ton?
 
            
 
                 A  I haven't applied for that.  I probably could, 
 
                 yes.
 
            
 
                 Q  Okay.  You could drive a wrecker again?
 
            
 
                 A  No, anything that comes under ICC, I can't--I 
 
                 can't get a job at.
 
            
 
                 Q  Okay.  What kind of jobs have you been applying 
 
                 for?
 
            
 
                 A  Basically, anything that I, you know, on an 
 
                 application, factory work, you know, labor work, 
 
                 restaurant work, anything.
 
            
 
                 Q  Okay.  What do you do during the day now, Mr. 
 
                 Green?
 
            
 
                 A  Usually just stay at home.  I go on job 
 
                 searches twice a week.
 
            
 
                 Claimant sought a medical examination from an 
 
            orthopaedic surgeon, Jerry L. Jochims, M.D.  Dr. Jochims, in 
 
            his office notes for July 21, 1986, wrote:
 
            
 
                 Overall, Mr. Green states that he is about 30% 
 
                 improved and the worst intensity of his pain at 
 
                 the time of the incident although he has good and 
 
                 bad days averages at about a 70th percentile level 
 
                 of pain.  He is essentially now trying to live 
 
                 with his back problem.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 CURRENTLY, HIS EXAM demonstrates equal leg lengths 
 
                 bilaterally.  Quads are equal and calfs [sic] are 
 
                 equal.  He is able to heel walk and toe walk 
 
                 without difficulty and his examination 
 
                 demonstrates straight leg raising negative 
 
                 bilaterally.  Motor and sensory examinations are 
 
                 within normal limits and reflexess [sic] are 
 
                 normal to the knees and ankles.  On prone 
 
                 examination he has a positive instability sign at 
 
                 L5 Sl and at a standing position as he bends 
 
                 forward he has a hesitancy in extending his spine 
 
                 from the forward flexed position.
 
            
 
                 REVIEW OF LUMBAR SPINE x-rays obtained in the 
 
                 office today without comparison with any previous 
 
                 x-rays indicates mild degenerative change at the 
 
                 L3 4 level.  The remainder of his spine x-rays are 
 
                 unremarkable.  He has not had a CT scan nor 
 
                 myleogram [sic] done.  EMG and nerve conductions 
 
                 test have not been done.
 
            
 
                 WITH THE ABOVE INFORMATION and based on my 
 
                 experience and training, I believe that this 
 
                 gentleman is within a reasonable degree of medical 
 
                 certainty suffering from mild lumbosacral 
 
                 instability which was either present at the time 
 
                 of the incident or caused thereby, but nonetheless 
 
                 if it was present earlier was probably aggravated 
 
                 by the twisting incident he described.
 
            
 
                 BASED ON THE CLINICAL HISTORY and my evaluation, 
 
                 it is my impression that he has sustained a sprain 
 
                 to his lumbosacral spine with subjective symptoms 
 
                 I believe correlating reasonably well with his 
 
                 degenerative findings in the lower lumbar spine 
 
                 but clinically most suspicious of clinically 
 
                 positive instability at L5 Sl.  With that 
 
                 information it is my opinion that he is 5% 
 
                 permanently and partially impaired because of the 
 
                 incident, but I do not believe he has any findings 
 
                 indicative of herniated intervertebral disc and I 
 
                 do not believe that specific further testing is 
 
                 necessary for that purpose.  I believe that his 
 
                 treatment should consist of mild non-narcotic 
 
                 anti-inflammatory medications, possibly as simple 
 
                 as over the counter preparations with aspirin or 
 
                 Ibuprofen.  When symptoms are acute he may require 
 
                 stronger prescription type anti-inflammatory 
 
                 medication.
 
            
 
                 Claimant was also examined by David J. Boarini, M.D., a 
 
            neurological surgeon.  Dr. Boarini, in his report of March 
 
            13, 1987, opined:
 
            
 
                 Upon examination, the patient has no evidence of 
 
                 atrophy fasciculations or abnormalities in the 
 
                 lower extremities.  His gait is entirely normal.  
 
                 He has a normal range of motion in the back and 
 
                 neck in all directions.  There is no palpable 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 paravertebral spasm in the back of the neck, 
 
                 although the patient does complain of some slight 
 
                 tenderness over the L-3 spinous process.
 
            
 
                 On neurological examination, the patient complains 
 
                 of hypesthesia on the entire right side of the 
 
                 body to all modalities, including pinprick, touch 
 
                 and vibration.  This includes the face.  His 
 
                 complaints of the hypesthesia are somewhat 
 
                 inconsistent.  Furthermore, upon tuning fork 
 
                 testing for vibration, the patient clearly splits 
 
                 the midline repeatedly over the back, both in the 
 
                 neck and in the lower back region.  This is 
 
                 clearly impossible physiologically and indicates 
 
                 an invalid complaint.  The patient's reflexes at 
 
                 the biceps, triceps, knees and ankles are 
 
                 physiologic and symmetric and plantar reflexes are 
 
                 down going.  Cremasteric reflexes are normal 
 
                 bilaterally.  Strength testing in all muscle 
 
                 groups in the upper and lower extremities is 
 
                 normal and he has a normal range of motion in all 
 
                 four extremities.  Straight leg raising is 
 
                 negative bilaterally.
 
            
 
                 Lumbosacral spine films taken in Burlington in 
 
                 January of 1986 were reviewed and these appear to 
 
                 be normal.  Lumbosacral spine films taken in Fort 
 
                 Madison in February of 1985 were also normal.  
 
                 Another set of lumbosacral spine films taken in 
 
                 Cedar Rapids in January of 1983 are unremarkable.
 
            
 
                 In summary, Mr. Green has an entirely normal 
 
                 neurological and back examination at this time.  
 
                 His x-rays are normal.  Furthermore, his clearly 
 
                 filaceous findings on his sensory examination 
 
                 could be interpreted as indicating either symptom 
 
                 magnification or possibly malingering.  I don't 
 
                 find any abnormality which would warrant 
 
                 assignment of a permanent partial impairment, nor 
 
                 would I place any restrictions on his ability to 
 
                 work.
 
            
 
                 Claimant was also examined by a licensed physical 
 
            therapist, B. Fellows, at the Pain Management Clinic.  Mr. 
 
            Fellows recommended as of March 19, 1987:
 
            
 
                 RECOMMENDATIONS:  Patient would benefit from:
 
            
 
                 1.  Re-evaluation of left hip and left shoulder 
 
                 for        possible pathology due to discomfort 
 
                 that was        displayed during resisted muscle 
 
                 strength testing          activities.
 
            
 
                 2.  Enrollment of patient into some form of work             
 
                 hardening type program to improve patient's             
 
                 tolerance to lifting and carrying objects.  Also        
 
                 some form of strengthening type program to improve      
 
                 left upper and left lower extremity strength.
 
            
 
                 3.  Patient enrollment into some type of pain                
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                 management program.
 
            
 
                 A sociologist, J. Dan Smeltzer, M.A., and a 
 
            psychologist, Richard A. Dill, Ph.D., also evaluated 
 
            claimant.  Mr. Smeltzer disagreed with the opinion of Mr. 
 
            Fellows that a pain management program was appropriate.  Mr. 
 
            Dill opined claimant might terminate a pain management 
 
            program prior to completion.
 
            
 
                                conclusions of law
 
            
 
                 Pursuant to Iowa Code section 86.14(2), in a proceeding 
 
            to reopen an award for payments, inquiry is to be made into 
 
            whether or not the condition of the employee warrants an end 
 
            to, diminishment of, or increase of compensation previously 
 
            awarded.  A change in condition must be shown to justify 
 
            changing the original award.  Henderson v. Iles, 250 Iowa 
 
            787, 96 N.W.2d 321 (1959).  It is not proper to merely 
 
            redetermine the condition of the employee as adjudicated by 
 
            the former award.  Stice v. Consol. Indus. Coal Co., 228 
 
            Iowa 1031, 291 N.W.2d 452 (1940).
 
            
 
                 A mere difference of opinion of experts or competent 
 
            observers as to the degree of disability arising from the 
 
            original injury is insufficient to justify a different 
 
            determination on a petition for review-reopening; there must 
 
            be substantial evidence of a worsening of the condition not 
 
            contemplated at the time of the first award.  Bousfield v. 
 
            Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  Or, a 
 
            change in condition may be found where claimant has failed 
 
            to improve to the extent initially anticipated, Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 
 
            1978).  Additionally, in cases not involving scheduled 
 
            members, a change in earning capacity subsequent to the 
 
            original award which is proximately caused by the original 
 
            injury may constitute a change in condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 The evidence in this case does not establish that 
 
            claimant has experienced a change of condition since the 
 
            earlier award.  At the time of the review-reopening hearing, 
 
            claimant had been employed as a painter and sandblaster for 
 
            $8.35 an hour.  He was terminated from the position in July 
 
            of 1986.  No reason for the termination was given.  Claimant 
 
            then applied and received unemployment.  As of February 25, 
 
            1987, claimant was still unemployed and receiving benefits.  
 
            Claimant presented no other evidence relative to his 
 
            employment status past March 1987.  Claimant did not appear 
 
            especially motivated to seek employment, although he did 
 
            acknowledged he was capable of working.
 
            
 
                 Claimant's physical condition did not change since the 
 
            earlier award.  Dr. Boarini, in fact, could find no 
 
            objective findings for any functional impairment.  Even Dr. 
 
            Jochims found only "mild lumbosacral instability which was 
 
            either present at the time of the incident or caused 
 
            thereby, but nonetheless if it was present earlier was 
 
            probably aggravated by the twisting incident he described."  
 
            Claimant's employment history appears the same, sporadic at 
 
            best.
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
                 All in all, it appears there has been no change of 
 
            condition since the earlier hearing.  Therefore, claimant is 
 
            not entitled to additional weekly benefits.
 
            
 
                 The final issue to address is whether claimant is 
 
            entitled to reasonable and necessary medical benefits in the 
 
            form of a pain management program.  Section 85.27 provides 
 
            in relevant portion:
 
            
 
                 The employer, for all injuries compensable under 
 
                 this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatrial [sic], physical 
 
                 rehabilitation, nursing, ambulance and hospital 
 
                 services and supplies therefor and shall allow 
 
                 reasonably necessary transportation expenses 
 
                 incurred for such services.  The employer shall 
 
                 also furnish reasonable and necessary crutches, 
 
                 artificial members and appliances but shall not be 
 
                 required to furnish more than one permanent 
 
                 prosthetic device.
 
            
 
                     ...
 
            
 
                 For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee; and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, he should 
 
                 communicate the basis of such dissatisfaction to 
 
                 the employer, in writing if requested, following 
 
                 which the employer and the employee may agree to 
 
                 alternate care resonably [sic] suited to treat the 
 
                 injury.  If the employer and employee cannot agree 
 
                 on such alternate care, the commissioner may, upon 
 
                 application and reasonable proofs of the necessity 
 
                 therefor, allow and order other care.  In an 
 
                 emergency, the employee may choose his care at the 
 
                 employer's expense, provided the employer or his 
 
                 agency cannot be reached immediately.
 
            
 
                 It is the determination of the undersigned that a pain 
 
            management program would benefit claimant.  Such a program 
 
            is reasonable and necessary given the recommendations of the 
 
            licensed physical therapist, B. Fellows, and the opinion of 
 
            Dr. Boarini that claimant is either magnifying his symptoms 
 
            or else claimant is possibly malingering.  Claimant appears 
 
            to have some psychological overlay which could be addressed 
 
            in a pain management program.
 
            
 
                             
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant is to provide reasonable and necessary 
 
            medical expenses to claimant which include, but is not 
 
            limited to, a pain management program for him.
 
            
 
                 Costs of the action are assessed to defendant.
 
            
 
                 Defendant shall file a claim activity report as 
 
            requested by this division pursuant to Division of 
 
            Industrial Services Rule 343-3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of July, 1990.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________               
 
            MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Rd
 
            P O Box 1066
 
            Keokuk  IA  52632
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines  IA  50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    5-2403
 
                                                    Filed July 19, 1990
 
                                                    MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM GREEN,                :
 
                                          :        File No. 691194
 
                 Claimant,                :
 
                                          :         R E V I E W -
 
            vs.                           :
 
                                          :       R E O P E N I N G
 
            IOWA STATE PENITENTIARY,      :
 
                                          :        D E C I S I O N
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-2403
 
            In a review-reopening proceeding, claimant was unable to 
 
            prove by a preponderance of the evidence there was a change 
 
            of condition.
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            AUSTIN K. HENRY,      
 
                        
 
                 Claimant,                      File No. 691991
 
                        
 
            vs.                                   A P P E A L
 
                        
 
            IOWA-ILLINOIS GAS AND               D E C I S I O N
 
            ELECTRIC COMPANY,     
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.
 
 
 
                                   ISSUES
 
 
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  The issues raised on appeal are:
 
 
 
            1.  Whether the services provided by claimant's mother from 
 
            November 30, 1985 to May 22, 1990 were "nursing" services 
 
            within the meaning of Iowa Code section 85.27.
 
 
 
            2.  Whether the parties' stipulation that workers are paid 
 
            35% of the rates charged by homemaker service businesses 
 
            limits payment to claimant's mother to 35% of commercial 
 
            rates.
 
 
 
            3.  Whether there is sufficient evidence to support an award 
 
            of $39,888.63 for claimant's mother's services for the 
 
            period from November 30, 1985 to May 22, 1990.
 
 
 
            4.  Whether there is sufficient evidence to support an award 
 
            of $2,000 for services allegedly performed by claimant's 
 
            sister.
 
 
 
            5.  Whether employer was entitled to partial summary 
 
            judgment.
 

 
            
 
            Page   2
 
            
 
            
 
                                FINDINGS OF FACTS
 
 
 
            The findings of fact contained in the proposed agency 
 
            decision filed February 22, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 
            *****
 
            Claimant filed a petition for medical benefits in this case 
 
            on December 2, 1988.  In his petition, claimant requested, 
 
            "practical nursing services and other services performed by 
 
            claimant's mother from the date of the injury to the 
 
            present."
 
            An answer was filed by defendant whereby defendant admitted 
 
            the work injury of January 8, 1982.  Defendant denied the 
 
            practical nursing services.
 
            [Prior] ***** to the filing of the petition, an arbitration 
 
            decision was filed.  Also, a review-reopening decision was 
 
            filed on January 6, 1986 and appeals were taken of that 
 
            review-reopening decision.  The district court rendered its 
 
            decision on December 10, 1987.  Nursing services from 
 
            January 8, 1982 on were not at issue.  As of November 1, 
 
            1985, the date of the review-reopening hearing, the matter 
 
            was deemed fully submitted, but nursing services were not 
 
            considered an issue.
 
            A motion for partial summary judgment on this matter was 
 
            filed on October 4, 1989 by defendant.  In its motion, 
 
            defendant stated among other things that:
 
               7.  As of November 1, 1985, all issues pertaining to 
 
            Claimant's claim for worker's [sic] compensation benefits as 
 
            a result of his January 8, 1982 injury were subject to 
 
            litigation.  However, following the close of the record on 
 
            November 1, 1985 on Claimant's Petition for 
 
            Review-Reopening, all issues not raised by the time of the 
 
            hearing were waived.  At no time prior to Claimant's filing 
 
            of his present Petition for 85.27 Benefits has Claimant 
 
            raised the issue of practical nursing services.
 
               8.  The doctrines of res judicata, laches, and the 
 
            prohibition against splitting a cause of action preclude 
 
            Claimant from now seeking compensation for practical nursing 
 
            services from January 8, 1982 through November 1, 1985.  
 
            Accordingly, the Industrial Commissioner should enter 
 
            partial summary judgment in favor of Employer and against 
 
            Claimant for any claims for practical nursing services 
 
            rendered between January 8, 1982 through November 1, 1985.
 
               9.  Claimant's claim for practical nursing services and 
 
            other services performed by Claimant's mother from January 
 
            8, 1982 through November 1, 1985 are barred as a matter of 
 
            law.
 
            A resistance was filed by claimant.
 
            *****
 
            As of October 30, 1985, claimant had returned to work.  He 
 

 
            
 
            Page   3
 
            
 
            
 
            was capable of driving himself to and from work by that 
 
            date.  Claimant could not do his own laundry or lay out all 
 
            of his own clothes in preparation of the day.  Claimant 
 
            could not perform his own maintenance on his wheelchair.  He 
 
            was incapable of preparing meals, other than quick microwave 
 
            meals.  He could not shop for his own clothes.  Nor could he 
 
            engage in household chores such as snow removal.  These 
 
            duties had to be performed by someone else.
 
            Claimant had these services performed for him by his mother 
 
            and by another relative.  Neither individual is a registered 
 
            nurse or licensed practical nurse.  Claimant seeks payment 
 
            to these individuals by defendant under Iowa Code section 
 
            85.27.
 
 
 
                                 CONCLUSIONS OF LAW
 
 
 
            Iowa Code section 85.27 provides in part:  "The employer, 
 
            for all injuries compensable under this chapter or chapter 
 
            85A, shall furnish reasonable surgical, medical, dental, 
 
            osteopathic, chiropractic, podiatric, physical 
 
            rehabilitation, nursing, ambulance and hospital services and 
 
            supplies therefor and shall allow reasonably necessary 
 
            transportation expenses incurred for such services."
 
            It appears that the services provided here were not nursing 
 
            services, but more in the nature of homemaker services.  
 
            Iowa Code section 85.27 does not obligate defendant to pay 
 
            for such services.  Cooking, cleaning, dressing assistance, 
 
            etc., were provided to claimant as part of the familial 
 
            relationship and were not nursing services.  The services 
 
            provided did not require medical training or licensure.  
 
            This issue has been previously considered:
 
               Claimant's mother-in-law was not a registered nurse or 
 
            licensed practical nurse....the services she provided were 
 
            in the nature of cooking, child care and housekeeping rather 
 
            than nursing care for claimant.  Her services were provided 
 
            gratuitously pursuant to the family relationship.  Claimant 
 
            is not entitled to payment for his mother-in-law's services.  
 
            Wuebker v. Oscar Mayer & Co., Inc., Appeal Decision, June 
 
            20, 1988 (#758401, 639440, 770363).
 
            The services in question were not nursing services and will 
 
            not be reimbursed under Iowa Code section 85.27.  All other 
 
            issues on appeal are therefore moot.
 
            WHEREFORE, the decision of the deputy is reversed.
 
 
 
                                       ORDER
 
 
 
            THEREFORE, it is ordered:
 
            That claimant shall take nothing from these proceedings.
 
            That defendant shall pay the costs of this matter including 
 
            the transcription of the hearing.
 
            Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                        ________________________________
 
                                                BYRON K. ORTON
 
                                          INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Bldg.
 
            Davenport, Iowa 52801
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg.
 
            111 East Third St.
 
            Davenport, Iowa 52801-1596
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                           2503
 
                                           Filed November 23, 1992
 
                                           Byron K. Orton
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            AUSTIN K. HENRY,      
 
                        
 
                 Claimant,                      File No. 691991
 
                        
 
            vs.                                  A P P E A L
 
                        
 
            IOWA-ILLINOIS GAS AND              D E C I S I O N
 
            ELECTRIC COMPANY,     
 
                        
 
                 Employer,   
 
                 Self-Insured,    
 
                 Defendant.       
 
            ____________________________________________________________
 
            
 
            2503
 
            Deputy's award of $39,000 to claimant's mother and $2000 to 
 
            claimant's sister for home care services such as helping 
 
            claimant dress himself, etc., reversed.  Neither the mother 
 
            nor the sister were licensed nurses, and the services 
 
            performed, although arguably similar to services performed 
 
            in a nursing home, were performed out of the familial 
 
            relationship.  They were not proper medical expenses under 
 
            section 85.27.  Citing Wuebker v. Oscar Mayer & Co., Appeal 
 
            Decision, June 20, 1988 (#758401, 639440, 770363). 
 
            
 
 
        
 
 
 
 
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ROBERT A. BIRD,
 
        
 
             Claimant,
 
             
 
        vs.                                                File No. 
 
        692179
 
        
 
        T.H.I COMMAND HYDRAULICS,                          A P P E A L
 
        
 
            Employer,                                     D E C I S I O 
 
        N
 
        
 
        and
 
                                                        F I L E D
 
        UNITED STATES FIDELITY
 
        & GUARANTY,                                        MAR 31 1989
 
        
 
            Insurance Carrier,              IOWA INDUSTRIAL 
 
        COMMISSIONER
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
             Defendants appeal from a review-reopening decision awarding 
 
             permanent total disability benefits as a result of an injury on 
 
             January 18, 1982.
 
        
 
            The record on appeal consists of the transcript of the 
 
        review-reopening hearing and the exhibits listed in the 
 
        prehearing report. Both parties filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
             Defendants state the issues on appeal are whether:
 
        
 
            1. The claimant sustained his burden of proving a 
 
        substantial change of condition subsequent to the agreement for 
 
        settlement approved by the Iowa Industrial Commissioner on July 
 
        26, 1983; and
 
        
 
            2. The claimant sustained his burden of proof that he is 
 
        permanently and totally disabled as a result of the injury of 
 
        January 18,~1982.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             The review-reopening decision adequately and accurately 
 
             reflects the pertinent evidence and it will not be reiterated 
 
             herein.
 
                                                
 
                                 APPLICABLE LAW
 
        
 
             The citations of law in the review-reopening decision are 
 
             appropriate to the issues and evidence. In addition, Iowa Code 
 
             section 85.34(3) (1981) provides in relevant part: "Permanent 
 
             total disability ... said weekly compensation shall be payable 
 
             during the period of the employee's disability."
 

 
        
 
 
 
 
 
        
 
                                      ANALYSIS
 
        
 
             The first issue to be resolved is whether claimant suffered 
 
             a change of condition or a failure to improve as medically 
 
             anticipated subsequent to the settlement agreement. In this case 
 
             the claimant has not only suffered a change of condition but he 
 
             has also failed to improve as anticipated. Claimant was released 
 
             to full duty without restrictions in June 1983 by an associate of 
 
             his primary treating physician at the time. Claimant testified 
 
             that he was feeling good and that he expected to return to work 
 
             as a welder. Claimant attempted to work as a welder but found 
 
             that he was not able to do so. Claimant now has difficulty with 
 
             prolonged sitting and standing. Robert E. McCoy, M.D., who has 
 
             been a treating physician, now finds claimant to be 20 percent 
 
             permanently impaired and prior to the July 1983 agreement he 
 
             rated claimant's impairment at 10 percent in March of 1983. As 
 
             late as December 17, 1982 Dr. McCoy did not expect the impairment 
 
             to be severe. Furthermore, it appears that Dr. McCoy thought 
 
             that claimant would benefit from treatment at the Sister Kinney 
 
             Institute. While Dr. McCoy did not think that there had been a 
 
             deterioration of claimant's condition which was not contemplated, 
 
             he expected claimant to improve. Either claimant's condition is 
 
             worse than it was prior to the settlement or claimant failed to 
 
             medically improve as anticipated. Either situation demonstrates 
 
             a change of condition which means that Dr. McCoy rates claimant 
 
             as 10 percent more impaired than before the settlement. Dr. 
 
             McCoy's opinion as a treating physician will be given the greater 
 
             weight. The opinion of A. J. Wolbrink, M.D., cannot be given more 
 
             weight than Dr. McCoy's. Dr. Wolbrink examined claimant for 
 
             evaluation purposes only. Also, Dr. Wolbrink's statement in 1987 
 
             that the claimant had "not had any significant change in his 
 
             problem over the past few years" is unclear what time period he 
 
             was referencing. It is not known whether or not Dr. Wolbrink 
 
             thought claimant's condition had changed subsequent to the July 
 
             1983 settlement. Claimant has demonstrated a substantial change 
 
             of condition.
 
        
 
            The next issue to be resolved is the extent of claimant's 
 
        permanent disability. Defendants argue on appeal that the deputy 
 
        erred in finding that claimant was an "odd-lot" employee and in 
 
        determining that claimant was permanently and totally disabled.
 
        
 
            Claimant demonstrated that he has an impairment of 20 
 
        percent of the body as a whole due to a back injury; that he was 
 
        30 years old at the time of the injury; that his work experience 
 
        has been manual labor; and that he has no formal schooling or 
 
        training beyond the eighth grade . The vocational rehabilitation 
 
        counselor, Kathryn Schrott, testifying on behalf of claimant, 
 
        indicated that claimant's intelligence is at the low end of the 
 
        dull normal range and that he has below average visual motor 
 
        coordination. She stated that she was familiar with the local 
 
        labor market and that she thought claimant would have difficulty 
 
        retraining. She opined that claimant is not employable. 
 
        Claimant submitted a list of potential employers where he had 
 
        unsuccessfully sought employment since July 1983. It is 
 
        claimant's uncontradicted testimony that he had contacted 
 
        numerous potential employers who were hiring and he was unable to 
 
        gain employment. Claimant has established a prima facie case 
 
        that he is an "odd-lot" employee.
 
        
 
             It must be determined if defendants have presented 
 
             sufficient evidence to overcome claimant's prima facie showing 
 
             that he is an "odd-lot" employee. Defendants rely on the 
 
             testimony of the vocational rehabilitation counselor, Pricilla 
 
             Waitek, they retained. Waitek disagreed with Schrott's 
 

 
        
 
 
 
 
 
             determination that claimant was not employable. Waitek described 
 
             jobs that she thought claimant could perform and that are "from 
 
             time to time" available. Waitek worked with claimant from May 
 
             1987 until the hearing in December 1987. During that time 
 
             claimant had completed two of the five parts necessary to obtain 
 
             a GED and claimant had applied for employment. The primary 
 
             disagreement between the parties is whether jobs are available 
 
             that claimant can perform. Despite the fact that claimant had 
 
             worked with the vocational rehabilitation counselor retained by 
 
             defendants for six months, he had not completed his GED, he had 
 
             not been offered employment, he had not demonstrated any good 
 
             possibility of retraining, and there had been no openings for 
 
             jobs he could perform. If defendants' efforts in assisting 
 
             claimant are successful so that claimant sometime in t, 
 
             he expected claimant to improve. Either claimant's condition is 
 
             worse than it was prior to the settlement or claimant failed to 
 
             medically improve as anticipated. Either situation demonstrates 
 
             a change of condition which means that Dr. McCoy rates claimant 
 
             as 10 percent more impaired than before the settlement. Dr. 
 
             McCoy's opinion as a treating physician will be given the greater 
 
             weight. The opinion of A. J. Wolbrink, M.D., cannot be given more 
 
             weight than Dr. McCoy's. Dr. Wolbrink examined claimant for 
 
             evaluation purposes only. Also, Dr. Wolbrink's statement in 1987 
 
             that the claimant had "not had any significant change in his 
 
             problem over the past few years" is unclear what time period he 
 
             was referencing. It is not known whether or not Dr. Wolbrink 
 
             thought claimant's condition had changed subsequent to the July 
 
             1983 settlement. Claimant has demonstrated a substantial change 
 
             of condition.
 
        
 
            The next issue to be resolved is the extent of claimant's 
 
        permanent disability. Defendants argue on appeal that the deputy 
 
        erred in finding that claimant was an "odd-lot" employee and in 
 
        determining that claimant was permanently and totally disabled.
 
        
 
            Claimant demonstrated that he has an impairment of 20 
 
        percent of the body as a whole due to a back injury; that he was 
 
        30 years old at the time of the injury; that his work experience 
 
        has been manual labor; and that he has no formal schooling or 
 
        training beyond the eighth grade . The vocational rehabilitation 
 
        counselor, Kathryn Schrott, testifying on behalf of claimant, 
 
        indicated that claimant's intelligence is at the low end of the 
 
        dull normal range and that he has below average visual motor 
 
        coordination. She stated that she was familiar with the local 
 
        labor market and that she thought claimant would have difficulty 
 
        retraining. She opined that claimant is not employable. 
 
        Claimant submitted a list of potential employers where he had 
 
        unsuccessfully sought employment since July 1983. It is 
 
        claimant's uncontradicted testimony that he had contacted 
 
        numerous potential employers who were hiring and he was unable to 
 
        gain employment. Claimant has established a prima facie case 
 
        that he is an "odd-lot" employee.
 
        
 
             It must be determined if defendants have presented 
 
             sufficient evidence to overcome claimant's prima facie showing 
 
             that he is an "odd-lot" employee. Defendants rely on the 
 
             testimony of the vocational rehabilitation counselor, Pricilla 
 
             Waitek, they retained. Waitek disagreed with Schrott's 
 

 
        
 
 
 
 
 
             determination that claimant was not employable. Waitek described 
 
             jobs that she thought claimant could perform and that are "from 
 
             time to time" available. Waitek worked with claimant from May 
 
             1987 until the hearing in December 1987. During that time 
 
             claimant had completed two of the five parts necessary to obtain 
 
             a GED and claimant had applied for employment. The primary 
 
             disagreement between the parties is whether jobs are available 
 
             that claimant can perform. Despite the fact that claimant had 
 
             worked with the vocational rehabilitation counselor retained by 
 
             defendants for six months, he had not completed his GED, he had 
 
             not been offered employment, he had not demonstrated any good 
 
             possibility of retraining, and there had been no openings for 
 
             jobs he could perform. If defendants' efforts in assisting 
 
             claimant are successful so that claimant sometime in t, 
 
             he expected claimant to improve. Either claimant's condition is 
 
             worse than it was prior to the settlement or claimant failed to 
 
             medically improve as anticipated. Either situation demonstrates 
 
             a change of condition which means that Dr. McCoy rates claimant 
 
             as 10 percent more impaired than before the settlement. Dr. 
 
             McCoy's opinion as a treating physician will be given the greater 
 
             weight. The opinion of A. J. Wolbrink, M.D., cannot be given more 
 
             weight than Dr. McCoy's. Dr. Wolbrink examined claimant for 
 
        
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                                          1302.1 - 4100
 
                                          Filed March 31, 1989
 
                                          DAVID E. LINQUIST
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ROBERT A. BIRD,
 
        
 
             Claimant,
 
             
 
                                                  File No. 692179
 
        vs.
 
                                                    A P P E A L
 
        T.H.I COMMAND HYDRAULICS,
 
                                                  D E C I S I O N
 
            Employer,
 
        
 
        and
 
        
 
        UNITED STATES FIDELITY
 
        & GUARANTY,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
             
 
        1302.1
 
        
 
             Claimant had not medically improved as anticipated. 
 
             Treating physician rated claimant as ten percent more impaired 
 
             than at the time of the prior settlement agreement. Claimant had 
 
             demonstrated a change of condition.
 
        
 
        4100
 
        
 
             Claimant made prima facie showing that he was an "odd-lot" 
 
             employee. Claimant was 30 years old at the time of the injury; 
 
             had an impairment of 20 percent due to a back injury; had below 
 
             average intelligence and visual motor coordination; had no formal 
 
             education beyond the eighth grade; had work experience in manual 
 
             labor; and had unsuccessfully sought employment at numerous 
 
             potential employers. The vocational rehabilitational counselor 
 
             retained by defendants did not demonstrate that jobs were 
 
             available claimant could perform. Claimant was found to be 
 
             unemployable and entitled to permanent total disability benefits.