BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            ALBERT L. WARNER,               :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 702191
 
            JENSEN TRANSPORT, INC.,         :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            IOWA NATIONAL MUTUAL INS. CO.,  :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.
 
            
 
                                      ISSUES
 
            
 
                 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:
 
            Whether the deputy industrial commissioner erred in giving 
 
            substantial weight to the testimony of Nils R. Varney, 
 
            Ph.D., since his conclusions were based on an inaccurate 
 
            medical history.  Whether the deputy industrial commissioner 
 
            erred in applying the "odd-lot" doctrine since claimant was 
 
            employed following his alleged injury.  Whether the deputy 
 
            industrial commissioner erred in finding that claimant 
 
            sustained his burden of proof with regard to a claim of 
 
            permanent total disability.
 
            
 
                                 FINDINGS OF FACT
 
 
 
            Claimant testified that he worked for Jensen as an 
 
            over-the-road trucker from August 1976 until June of 1982.  
 
            According to Jerry Jensen, the president of Jensen, claimant 
 
            earned $530 per week at the time of the injury.  Claimant 
 
            testified that on April 5, l982, while driving on an icy 
 
            roadway, his truck left the roadway striking a bridge 
 
            abutment and coming to rest in the field.  Claimant said 
 
            that he was thrown around inside the cab striking the top, 
 
            front of his head and other areas of his body.  Claimant 
 
            said that he lost consciousness after the first blow to his 
 
            head and that he "came to" in the hospital.  He eventually 
 
            recalled only talking to someone in a black pickup after the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            accident.  His next recollection is a nurse taking an x-ray 
 
            in the hospital.  Hospital records indicate an admission of 
 
            claimant on April 5, l982, with a history of a truck 
 
            accident immediately before admission.  The diagnosis was 
 
            multiple soft tissue injuries and probable concussion of the 
 
            brain.  Claimant was held overnight for observation and 
 
            released the next morning.
 
            The extent of the accident and the damage to the truck 
 
            became an issue at hearing.  Jerry Jensen testified that the 
 
            truck suffered only minor damage and was quickly placed back 
 
            into service.  Elmer Jensen, the father of Jerry, testified 
 
            that he was the person who traveled to the accident site the 
 
            day following the accident to pick up the truck and 
 
            claimant.  He testified that the truck had been moved by the 
 
            state police prior to his arriving at the accident scene 
 
            because it was blocking the roadway.  Elmer initially said 
 
            that the truck was not operable after the accident and was 
 
            so badly damaged that it had to be taken out of service.  
 
            Elmer appeared to back off his testimony on redirect 
 
            examination.  The excessive damage to the truck was again 
 
            denied by Jerry in rebuttal testimony.  Although Elmer 
 
            testified that he took pictures of the truck, no such 
 
            pictures were offered at hearing.
 
            Upon discharge from the hospital, claimant was referred to 
 
            his family physician.  Claimant remained off work until 
 
            April 18, 1982, at which time he returned to full duties as 
 
            an over-the-road trucker for Jensen.  Following his return, 
 
            claimant continued driving while receiving treatment from 
 
            his family physician, A.E. Barnes, M.D., for back, neck and 
 
            shoulder pain which began with the accident.  Finally, on 
 
            June 13, l982, while participating in Sunday religious 
 
            services, claimant suddenly lost consciousness for a few 
 
            seconds shortly after experiencing a sensation of being hot 
 
            and noticing that the letters in his Bible began to enlarge.  
 
            Claimant was taken to the hospital and evaluated by Dr. 
 
            Barnes and a neurologist, Winthrop Risk, M.D.  Drs. Barnes 
 
            and Risk agreed that claimant suffered a posttraumatic 
 
            seizure disorder as a result of the April 5, l982 brain 
 
            concussion.  Treatment of claimant's back, neck and shoulder 
 
            problems continued after June 13, l982.  However, this 
 
            treatment tapered off and claimant's complaints of continued 
 
            seizures became his physician's primary focus.  Claimant 
 
            testified that since the initial seizure, the subsequent 
 
            seizures occur without a loss of consciousness which was 
 
            termed on one occasion as "blank stare episodes."  Claimant 
 
            testified that he cannot talk or perform activity during 
 
            these episodes which last
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            a few minutes.  After the episodes, claimant becomes 
 
            extremely weak and tired.  Some of these episodes involve 
 
            teeth clenching.  Initially, EEG testing was abnormal and 
 
            supported the diagnosis that claimant was suffering from 
 
            seizure disorders.  More recent testing has not shown EEG 
 
            abnormalities.  Claimant has been prescribed anticonvulsive 
 
            drugs and claimant testified that he continues to take this 
 
            medication at the present time.  Claimant says that the 
 
            taking of this drug reduces the frequency of his blank stare 
 
            episodes.
 
            In November 1985, claimant was evaluated by W.H. Verduyn, 
 
            M.D.  Noting symptoms of forgetfulness, indecisiveness, slow 
 
            thinking and loss of sensation of smell, Dr. Verduyn 
 
            diagnosed closed head injury and frontal lobe damage of 
 
            claimant's brain.  Dr. Verduyn referred claimant then to 
 
            Nils R. Varney, Ph.D., a neuropsychologist.  Dr. Varney 
 
            testified at hearing that he specializes in closed head 
 
            injuries at Veterans Hospital in Iowa City, Iowa and in his 
 
            private practice.  He explained that his work is in 
 
            conjunction with the field of neurology in the 
 
            identification and vocational treatment of persons suffering 
 
            from trauma induced head injuries.  Dr. Varney who touts his 
 
            extensive experience, training and writing on the subject, 
 
            stated that claimant does indeed suffer from all of these 
 
            symptoms of closed head injury with temporal lobe damage.  
 
            These symptoms he states are medical problems separate and 
 
            distinct from seizure disorders or any other depressive 
 
            disorder symptoms claimant has experienced since the 
 
            accident.  Dr. Varney's opinions are based upon his 
 
            examination of the medical records and his interviews not 
 
            only with claimant but with claimant's wife and daughter.  
 
            Dr. Varney did talk to claimant's current employer shortly 
 
            before the hearing, but according to Dr. Varney he did not 
 
            learn anything new from this conversation.  Dr. Varney 
 
            points to the following symptoms which he has concluded has 
 
            developed since the April 5, l982 accident and as further 
 
            justification for his diagnosis:  lack of spontaneity of 
 
            thought, absentmindedness, misplaced memory, poor planning 
 
            and anticipation, indecisiveness, poor judgment and poor 
 
            insight.  Dr. Varney explained that these symptoms have 
 
            occurred in spite of claimant's overall high intelligence 
 
            and claimant's past education and experience in the business 
 
            world.  Dr. Varney states that claimant's intellectual 
 
            capacity of thought have dramatically changed since the 
 
            April 5, l982 accident.  Dr. Varney placed great emphasis on 
 
            claimant's reduced sense of smell and taste.  Dr. Varney 
 
            explained that olfactory nerves lying just beneath the 
 
            frontal lobe of the brain on bony ridges of the skull are 
 
            susceptible to damage in closed head injuries.  Injury to 
 
            this nerve also affects the sense of smell.  Dr. Varney 
 
            notes the claimant has experienced smelling hallucinations 
 
            and has increased his use of spices in Mexican
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            food since the accident.  Dr. Varney then concludes that 
 
            with such brain damage, claimant is 92 percent unemployable 
 
            in his experience with other closed head injuries.  Dr. 
 
            Varney believes claimant to be permanently and totally 
 
            disabled.
 
            The Neurology Department at the University of Iowa has 
 
            evaluated claimant several times since 1982.  Most of these 
 
            physicians stated that claimant's story is unreliable but do 
 
            not explain the source of this belief.  These physicians do 
 
            not believe that claimant's seizures are organic in nature.  
 
            They stated that it is simply impossible to reach a 
 
            conclusion as to causation of claimant's difficulties.  
 
            There is no mention in any of their reports concerning a 
 
            possible closed head injury diagnosed by Dr. Verduyn.  
 
            Claimant has been evaluated by a psychiatrist since the 
 
            accident who opines that claimant has no psychiatric 
 
            diagnosis.
 
            Claimant testified that he continues to have "blank stare" 
 
            episodes approximately twice a month.  He complains of 
 
            forgetfulness.  Under state law a person cannot be licensed 
 
            to drive on a public roadway for six months following a 
 
            seizure.  As a result of claimant's complaints, no 
 
            physician, even the University of Iowa Neurology Department, 
 
            has released claimant to return to truck driving or any 
 
            other type of driving.  Consequently, claimant has not been 
 
            able to return to work as an over-the-road trucker since his 
 
            seizure on June 13, l982.  Claimant states that today he 
 
            continues to drive for only a few miles each day but 
 
            utilizes family members for long trips.  Whether or not this 
 
            driving is legal in his current state of residence is 
 
            unknown.
 
            Claimant said that he looked for work in the area of his 
 
            residence after the injury which was Cedar Rapids, Iowa but 
 
            could not find any suitable work.  Claimant had been offered 
 
            a job in the maintenance shop of Jensen in the town of 
 
            Independence, Iowa but claimant refused to accept this job.  
 
            He said that it would require him to commute 42 miles which 
 
            he could not do without the help of his wife who had a job 
 
            of her own.  Claimant explained that he was also reluctant 
 
            to move his residence.  Claimant then did move his residence 
 
            to the State of California in March 1984 to obtain 
 
            employment in conjunction with his wife as apartment 
 
            managers.  Claimant said that his wife was to handle the 
 
            paperwork and book work and he was to handle the maintenance 
 
            and repair activity.  They both were paid $650 a month in 
 
            addition to their free rent and utilities.  Claimant's wife 
 
            has since passed away.  Claimant's employer testified by 
 
            deposition that she currently is quite dissatisfied with 
 
            claimant's job performance because of his forgetfulness and 
 
            that she must do the administrative work.  She complains 
 
            that claimant is too slow and
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            cannot handle the work of normal apartment managers.  This 
 
            employer is considering replacing claimant with another 
 
            married couple.  To date, claimant has not been fired and 
 
            there has been no reduction in what he is being paid.
 
            Claimant is 61 years of age at the time of hearing.  
 
            Claimant is a high school graduate and holds an associate of 
 
            arts degree in business administration.  Claimant earned 
 
            over 190 hours of additional college credit while in his 
 
            30's pursuing various courses of study at junior colleges in 
 
            the State of California.  However, claimant failed to obtain 
 
            sufficient hours in any specific field to earn a 
 
            baccalaureate degree.  Claimant's first employment involved 
 
            various jobs including factory work and sales.  He taught 
 
            elementary school for one year.  For several years in the 
 
            late 60's and early 70's, claimant was an equipment 
 
            technician for the chemistry labs of CAL State University at 
 
            Fullerton, California.  This job involved not only storeroom 
 
            type duties but work involving the purchasing, planning and 
 
            proposed budgeting of laboratory physical needs in 
 
            conjunction with the head of the chemistry department.  Both 
 
            of claimant's superiors at CAL State during this period of 
 
            time testified that claimant performed excellently in this 
 
            job before he left in 1972.  Both also testified that they 
 
            have noticed a significant drop in his intellectual 
 
            functions and thought processes from their observations of 
 
            claimant's behavior since his return to the State of 
 
            California in March of 1984.  Despite the occurrence of a 
 
            vacancy in this equipment technician job since claimant has 
 
            returned to California, he was not offered the job by the 
 
            Chemistry Department.  Claimant said that he was told he was 
 
            "overqualified" for the position.
 
            After leaving the equipment technician job in 1972, claimant 
 
            purchased a couple of grocery stores in the State of 
 
            Colorado and operated them for a period of time until he 
 
            purchased a larger store in Tipton, Iowa.  Claimant said 
 
            that for a period of time these grocery store operations 
 
            were successful but the store in Tipton eventually began to 
 
            lose money for some reason unknown to claimant and he was 
 
            forced to give up the operation.  Claimant then moved from 
 
            Tipton, Iowa to Cedar Rapids, Iowa and began working for 
 
            Jensen.
 
            Claimant's medical condition before the work injury was 
 
            excellent and he had no functional mental impairments or 
 
            ascertainable mental disabilities.  Claimant was fully able 
 
            to perform highly intellectual tasks such as the completion 
 
            of close to 200 hours of college credit, the management of 
 
            several chemistry labs at a state university, the attainment 
 
            of an associates of arts degree in business administration 
 
            and the operation of two grocery store businesses.  Claimant 
 
            was a successful truck driver at the time of the injury 
 
            earning close to $600 per week.
 
            As a result of his seizure disorders and his mental 
 
            injuries, claimant's treating physicians are unable to 
 
            release claimant to return to work as a truck driver.  Due 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            to his mental impairment, claimant is today unable to 
 
            competently perform any administrative duties or even simple 
 
            maintenance and repair activities at an apartment complex.  
 
            Claimant's mental condition prevents him from returning to 
 
            his former work and to competently perform any type of 
 
            employment he has held in the past.
 
            conclusions of law
 
            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 
 
            insufficient along 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. Asse 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).
 
            In the case sub judice, the fighting issue is the causal 
 
            connection of claimant's alleged seizure difficulties and 
 
            alleged frontal lobe damage to the truck accident.  Claimant 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            has not shown that he suffers permanent disability due to 
 
            his neck, back and shoulder problems following the accident 
 
            as treatment lasted for only a few months and he does not 
 
            apparently have any current complaints.
 
            First, the dispute at hearing concerning the extent of 
 
            damage to the truck is an extraneous issue.  The real issue 
 
            is the extent of the damage to claimant's head and brain.  
 
            The uncontroverted diagnosis of brain concussion by the 
 
            admitting hospital physicians after the accident is 
 
            conclusive as to the nature of claimant's initial injury.
 
            Second, with reference to the causal connection of 
 
            claimant's alleged seizures or "blank stare episodes," the 
 
            physicians at University of Iowa appear to disagree with the 
 
            treating physicians as to the exact nature of claimant's 
 
            difficulties.  Drs. Risk and Verduyn have been treating 
 
            claimant for convulsive disorders with anticonvulsive 
 
            medication which claimant testified helps reduce the 
 
            incidents of these seizures.  University of Iowa physicians 
 
            had trouble concluding that claimant's diagnosis was organic 
 
            but offered no other plausible explanation for claimant's 
 
            symptoms which he credibly testified began at the time of 
 
            the accident.  The only psychiatric evaluation was negative.  
 
            Therefore, given claimant's credible testimony and the 
 
            available medical records which show a total lack of 
 
            symptomatology before April 5, l982, the more convincing 
 
            opinions are those of Drs. Risk and Verduyn.
 
            Third, with reference to the claim of closed head injury and 
 
            temporal lobe damage to the brain, again we must give 
 
            considerable weight to Dr. Verduyn's medical diagnosis and 
 
            the clinical observations of the psychologist, Dr. Varney, 
 
            who has extensively worked with patients with such injuries.  
 
            Such evidence is most convincing given claimant's education 
 
            and business activities prior to the truck accident and his 
 
            condition today.  One cannot ignore the fact that two 
 
            chemistry professors verify that there has been a 
 
            significant dramatic change in claimant's thought processes 
 
            since before and after the accident.  We are dealing with a 
 
            man who had significant management and educational skills 
 
            developed at CAL State University and who went on to manage 
 
            a grocery store business for a period of time which was 
 
            successful.  Today, this man cannot even perform simple
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            maintenance and repair duties with any degree of competency.  
 
            The greater weight of the credible evidence demonstrates a 
 
            clear causal connection of the April 5, l982 accident and 
 
            claimant's current mental difficulties.
 
            Claimant must establish by a preponderance of the evidence 
 
            the extent of weekly benefits for permanent disability to 
 
            which claimant is entitled.  As the claimant has shown that 
 
            the work injury was a cause of a permanent physical 
 
            impairment or limitation upon activity involving the body as 
 
            a whole, the degree of permanent disability must be measured 
 
            pursuant to Iowa Code section 85.34(2)(u).  However, unlike 
 
            scheduled member disabilities, the degree of disability 
 
            under this provision is not measured solely by the extent of 
 
            a functional impairment or loss of use of a body member.  A 
 
            disability to the body as a whole or an "industrial 
 
            disability" is a loss of earning capacity resulting from the 
 
            work injury.  Diederich v. Tri-City Railway Co., 219 Iowa 
 
            587, 593, 258 N.W. 899 (1935).  A physical impairment or 
 
            restriction on 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 has resulted 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 situs of the injury, its severity 
 
            and the length of healing period; the work experience of the 
 
            employee prior to the injury, after the injury and potential 
 
            for rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 
 
            (1963).  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985).
 
            The work injury of April 5, l982, was a cause of two brief 
 
            periods of total disability from work from April 6, 1982 
 
            through April 17, l982 and from May 10, l982 through June 5, 
 
            l982 due to back, neck and shoulder pain.  During this time 
 
            claimant was treated by his physicians with medication, rest 
 
            and physical therapy.
 
            Beginning on June 13, l982, the work injury of April 5, 
 
            1982, was a cause of a significant and dramatic permanent 
 
            partial mental impairment.  Claimant has developed seizure 
 
            or convulsive disorders in which he experiences regular 
 
            seizures or "blank stare episodes" where he is conscious but 
 
            unable to communicate
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            or perform activity.  Claimant experiences such episodes at 
 
            least twice each month.  Claimant has taken anticonvulsive 
 
            medication for this condition since 1982.  Claimant has also 
 
            suffered a closed head injury resulting in frontal temporal 
 
            lobe brain damage.  Although his overall intellectual 
 
            intelligence is high, claimant's thinking is impaired.  
 
            Claimant is indecisive, absent minded, slow in decision 
 
            making, and lacks insight in his everyday contacts and 
 
            social and work activity.  Prior to the injury, claimant's 
 
            thinking was developed to a high degree and he was able to 
 
            earn 190 hours of college credit and the requirements for an 
 
            associate arts degree in business administration.  Prior to 
 
            the injury claimant successfully performed work involving 
 
            the management of equipment needs at chemistry labs at a 
 
            large state university where he was expected to keep not 
 
            only inventory of the equipment but perform purchasing and 
 
            planning activities in conjunction with chemistry 
 
            professors.  Following this employment, claimant was able to 
 
            operate and manage grocery store business and to perform 
 
            successful over-the-road trucking activities until the work 
 
            injury.  Claimant had no mental impairments before April 5, 
 
            l982.
 
            Claimant was, at the time of the hearing, employed in his 
 
            capacity as an apartment manager.  Claimant is therefore not 
 
            permanently totally disabled.  A claimant cannot be both 
 
            employed and permanently totally disabled at the same time.  
 
            Claimant's employer's possible plans to terminate his 
 
            employment had not occurred as of the date of the hearing, 
 
            and it would be speculative to base an award on events that 
 
            may or may not happen in the future.
 
            Claimant has clearly suffered a loss of mental capacity.  
 
            There is no rating of impairment for his condition, other 
 
            than a medical opinion that claimant is "92% unemployable."  
 
            Assessing impairment is properly the province of medical 
 
            testimony, but the assessment of disability is the province 
 
            of this agency.
 
            In spite of the lack of a numerical rating of percentage of 
 
            impairment, numerous witnesses attested to claimant's 
 
            forgetfulness, his inability to organize and to perform 
 
            otherwise routine tasks.  He is not able to return to his 
 
            former job as a truck driver, or to drive any substantial 
 
            distance.  He is not able to perform other jobs he formerly 
 
            held, due to his lack of mental capacity.  It appears he 
 
            even has difficulty performing the duties of his current 
 
            employment, which appear to be minimally demanding.
 
            Claimant's age at the time of the accident was 53.  Claimant 
 
            was 61 at the time of the hearing.  Claimant has not lost as 
 
            much of his earning capacity as a younger worker, as 
 
            claimant had less worklife remaining.  Claimant's age and 
 
            his mental condition after the accident make retraining an 
 
            unlikely prospect.
 
            Claimant's education is extensive, but his reduced mental 
 
            capacity nullifies any benefit this would otherwise provide 
 
            to him.
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            Prior to the accident, claimant was earning $600 per week, 
 
            or approximately $2400 per month.  Claimant and his wife, 
 
            when she was living, were paid $640 per month for their 
 
            apartment management services.  Claimant has suffered a 
 
            substantial loss of earnings as a result of his injury.
 
            Based on these and all other appropriate factors for 
 
            determining industrial disability claimant is determined to 
 
            have an industrial disability of 65 percent.
 
            The requested medical expenses in exhibits I and J are fair 
 
            and reasonable and were incurred by claimant for reasonable 
 
            and necessary treatment of his work injury.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay to claimant healing period 
 
            benefits from April 6, l982 through April 17, l982; from May 
 
            10, l982 through June 5, l982 at the rate of two hundred 
 
            ninety-eight and 14/l00 dollars ($298.14). 
 
            
 
                 That defendants shall pay claimant permanent partial 
 
            disability benefits for three hundred twenty-five (325) 
 
            weeks from June 13, l982 at the rate of two hundred 
 
            ninety-eight and 14/l00 dollars ($298.14).
 
            
 
                 That defendants shall pay the medical expenses listed 
 
            in exhibits I and J as described in the prehearing report.  
 
            Claimant shall be reimbursed for any of these expenses paid 
 
            by him.  Otherwise, defendants shall pay the provider 
 
            directly along with any lawful late payment penalties 
 
            proposed on the account by the provider.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.
 
            
 
                 That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this matter 
 
            including the transcription of the hearing.  
 
            
 
                 That defendants shall file activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 
            to Division of Industrial Services Rule 343-3.l.
 
            
 
            
 
                 Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Joseph M. Bauer
 
            Attorney at Law
 
            The Saddlery Bldg, Suite 500
 
            309 Court Ave
 
            Des Moines, IA  50309
 
            
 
            Mr. W. H. Gilliam
 
            Attorney at Law
 
            Water St Ct, Second Floor
 
            Waterloo, IA  50703-4785
 
            
 
            Mr. E. J. Giovannetti
 
            Attorney at Law
 
            2700 Grand Ave., Ste lll
 
            Des Moines, Iowa 50312
 
            
 
 
            
 
 
 
 
 
 
 
 
 
                                            1804; 4100
 
                                            Filed November 23, 1992
 
                                            Byron K. Orton
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER            
 
 
 
            ____________________________________________________________
 
                                            
 
            ALBERT L. WARNER,               :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 702191
 
            JENSEN TRANSPORT, INC.,         :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            IOWA NATIONAL MUTUAL INS. CO.,  :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            
 
            1804, 4100
 
            Claimant, age 61, suffered a loss of mental capacity as a 
 
            result of his work injury.  Claimant is now working as an 
 
            apartment manager, a job he shared with his late wife.  Now 
 
            that claimant's wife is gone, claimant is having difficulty 
 
            performing the duties of that job, although at the time of 
 
            hearing was still employed.  Deputy's award of permanent 
 
            total disability under odd-lot reversed on appeal as 
 
            inconsistent with claimant's present employment status.  
 
            Possibility claimant would lose his job in the future was 
 
            speculation.  Claimant's award based on present 
 
            circumstances.  
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ALBERT L. WARNER,
 
         
 
              Claimant,                              File No. 702191
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         JENSEN TRANSPORT, INC.,                     D E C I S I O N
 
              
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       MAR 13 1990
 
         IOWA NATIONAL MUTUAL INS. CO.,
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Albert L. 
 
         Warner, claimant, against Jensen Transport, Inc., employer 
 
         (hereinafter referred to as Jensen), and Iowa National Mutual 
 
         Insurance Company, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on April 
 
         5, 1982.  On July 25, 1989, 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 was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On April 5, 1982, claimant received an injury which 
 
         arose out of and in the course of his employment with Jensen.
 
         
 
              2.  Claimant is seeking temporary total disability or 
 
         healing period benefits from April 6, 1982 through April 17, 
 
         1982; from May 10, 1982 through June 5, 1982; and from June 14, 
 
         1982 through July 1, 1984.  Defendants agree that claimant was 
 
         not employed during these times.
 
         
 
              3.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              4.  If permanent partial disability benefits are awarded, 
 
         they shall begin as of July 2, 1984.
 
         
 
              5.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $298.14.
 
         
 
              6.  With reference to the requested medical expenses, it was 
 
         agreed that the fees were reasonable and that the providers of 
 
         the services would testify that they constitute reasonable 
 
         treatment for the alleged work injury.  Defendants are not 
 
         offering contrary evidence.  Also, it was agreed that the 
 
         requested expenses are causally connected to the medical 
 
         condition upon which the claim was based but that the causal 
 
         connection of this condition to the work injury remained at 
 
         issue.
 
         
 
                                      ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
              
 
                I.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 
              
 
               II.  The extent of claimant's entitlement to weekly 
 
         benefits for disability and the applicability of the "odd-lot" 
 
         doctrine to this case; and,
 
              
 
              III.  The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                              STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions about the evidence received 
 
         contained in the following statement shall be viewed as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he worked for Jensen as an 
 
         over-the-road trucker from August 1976 until June of 1982.  
 
         According to Jerry Jensen, the president of Jensen, claimant 
 
         earned $530 per week at the time of the injury.  Claimant 
 
         testified that on April 5, 1982, while driving on an icy roadway, 
 
         his truck left the roadway striking a bridge abutment and coming 
 
         to rest in the field.  Claimant said that he was thrown around 
 
         inside the cab striking the top, front of his head and other 
 
         areas of his body. Claimant said that he lost consciousness after 
 
         the first blow to his head and that he "came to" in the hospital.  
 
         He eventually recalled only talking to someone in a black pickup 
 
         after the accident.  His next recollection is a nurse taking an 
 
         x-ray in the hospital.  Hospital records indicate an admission of 
 
         claimant on April 5, 1982, with a history of a truck accident 
 
         immediately before admission.  The diagnosis was multiple soft 
 
         tissue injuries and probable concussion of the brain.  Claimant 
 
         was held overnight for observation and released the next morning.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The extent of the accident and the damage to the truck 
 
         became an issue at hearing.  Jerry Jensen testified that the 
 
         truck suffered only minor damage and was quickly placed back into 
 
         service.  Elmer Jensen, the father of Jerry, testified that he 
 
         was the person who traveled to the accident site the day 
 
         following the accident to pick up the truck and claimant.  He 
 
         testified that the truck had been moved by the state police prior 
 
         to his arriving at the accident scene because it was blocking the 
 
         roadway.  Elmer initially said that the truck was not operable 
 
         after the accident and was so badly damaged that it had to be 
 
         taken out of service. Elmer appeared to back off his testimony on 
 
         redirect examination. The excessive damage to the truck was again 
 
         denied by Jerry in rebuttal testimony.  Although Elmer testified 
 
         that he took pictures of the truck, no such pictures were offered 
 
         at hearing.
 
         
 
              Upon discharge from the hospital, claimant was referred to 
 
         his family physician.  Claimant remained off work until April 18, 
 
         1982, at which time he returned to full duties as an 
 
         over-the-road trucker for Jensen.  Following his return, claimant 
 
         continued driving while receiving treatment from his family 
 
         physician, A. E. Barnes, M.D., for back, neck and shoulder pain 
 
         which began with the accident.  Finally, on June 13, 1982, while 
 
         participating in Sunday religious services, claimant suddenly 
 
         lost consciousness for a few seconds shortly after experiencing a 
 
         sensation of being hot and noticing that the letters in his Bible 
 
         began to enlarge. Claimant was taken to the hospital and 
 
         evaluated by Dr. Barnes and a neurologist, Winthrop Risk, M.D.  
 
         Drs. Barnes and Risk agreed that claimant suffered a 
 
         post-traumatic seizure disorder as a result of the April 5, 1982 
 
         brain concussion.  Treatment of claimant's back, neck and 
 
         shoulder problems continued after June 13, 1982.  However, this 
 
         treatment tapered off and claimant's complaints of continued 
 
         seizures became his physician's primary focus.  Claimant 
 
         testified that since the initial seizure, the subsequent seizures 
 
         occur without a loss of consciousness which was termed on one 
 
         occasion as "blank stare episodes."  Claimant testified that he 
 
         cannot talk or perform activity during these episodes which last 
 
         a few minutes.  After the episodes, claimant becomes extremely 
 
         weak and tired.  Some of these episodes involve teeth clenching.  
 
         Initially, EEG testing was abnormal and supported the diagnosis 
 
         that claimant was suffering from seizure disorders.  More recent 
 
         testing has not shown EEG abnormalities. Claimant has been 
 
         prescribed anti-convulsive drugs and claimant testified that he 
 
         continues to take this medication at the present time.  Claimant 
 
         says that the taking of this drug reduces the frequency of his 
 
         blank stare episodes.
 
         
 
              In November 1985, claimant was evaluated by W. H. Veduyn, 
 
         M.D.  Noting symptoms of forgetfulness, indecisiveness, slow 
 
         thinking and loss of sensation of smell, Dr. Veduyn diagnosed 
 
         closed head injury and frontal lobe damage of claimant's brain. 
 
         Dr. Veduyn referred claimant then to Nils R. Varney, Ph.D., a 
 
         neuropsychologist.  Dr. Varney testified at hearing that he 
 
         specializes in closed head injuries at Veterans Hospital in Iowa 
 
         City, Iowa and in his private practice.  He explained that his 
 
         work is in conjunction with the field of neurology in the 
 
         identification and vocational treatment of persons suffering from 
 
         trauma induced head injuries.  Dr. Varney who touts his extensive 
 
         experience, training and writing on the subject, stated that 
 
         claimant does indeed suffer from all of these symptoms of closed 
 
         head injury with temporal lobe damage.  These symptoms he states 
 
         are medical problems separate  and distinct from seizure 
 
         disorders or any other depressive disorder symptoms claimant has 
 
         experienced since the accident.  Dr. Varney's opinions are based 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         upon his examination of the medical records and his interviews 
 
         not only with claimant but with claimant's wife and daughter.  
 
         Dr. Varney did talk to claimant's current employer shortly before 
 
         the hearing, but according to Dr. Varney he did not learn 
 
         anything new from this conversation.  Dr. Varney points to the 
 
         following symptoms which he has concluded have developed since 
 
         the April 5, 1982 accident and as further justification for his 
 
         diagnosis: lack of spontaneity of thought, absentmindedness, 
 
         misplaced memory, poor planning and anticipation, indecisiveness, 
 
         poor judgment and poor insight.  Dr. Varney explained that these 
 
         symptoms have occurred in spite of claimant's overall high 
 
         intelligence and claimant's past education and experience in the 
 
         business world. Dr. Varney states that claimant's intellectual 
 
         capacity of thought has dramatically changed since the April 5, 
 
         1982 accident.  Dr. Varney placed great emphasis on claimant's 
 
         reduced sense of smell and taste.  Dr. Varney explained that 
 
         olfactory nerves lying just beneath the frontal lobe of the brain 
 
         on bony ridges of the skull are susceptible to damage in closed 
 
         head injuries.  Injury to this nerve also affects the sense of 
 
         smell.  Dr. Varney notes the claimant has experienced smelling 
 
         hallucinations and has increased his use of spices in Mexican 
 
         food since the accident.  Dr. Varney then concludes that with 
 
         such brain damage, claimant is 92 percent unemployable in his 
 
         experience with other closed head injuries. Dr. Varney believes 
 
         claimant to be permanently and totally disabled.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The Neurology Department at the University of Iowa has 
 
         evaluated claimant several times since 1982.  Most of these 
 
         physicians stated that claimant's story is unreliable but do not 
 
         explain the source of this belief.  These physicians do not 
 
         believe that claimant's seizures are organic in nature.  They 
 
         stated that it is simply impossible to reach a conclusion as to 
 
         causation of claimant's difficulties.  There is no mention in any 
 
         of their reports concerning a possible closed head injury 
 
         diagnosed by Dr. Veduyn.  Claimant has been evaluated by a 
 
         psychiatrist since the accident who opines that claimant has no 
 
         psychiatric diagnosis.
 
         
 
              Claimant testified that he continues to have "blank stare" 
 
         episodes approximately twice a month.  He complains of 
 
         forgetfulness.  Under state law a person cannot be licensed to 
 
         drive on a public roadway for six months following a seizure.  As 
 
         a result of claimant's complaints, no physician, even the 
 
         University of Iowa Neurology Department, has released claimant to 
 
         return to truck driving or any other type of driving.  
 
         Consequently, claimant has not been able to return to work as an 
 
         over-the-road trucker since his seizure on June 13, 1982.  
 
         Claimant states that today he continues to drive for only a few 
 
         miles each day but utilizes family members for long trips.  
 
         Whether or not this driving is legal in his current state of 
 
         residence is unknown.
 
         
 
              Claimant said that he looked for work in the area of his 
 
         residence after the injury which was Cedar Rapids, Iowa but could 
 
         not find any suitable work.  Claimant had been offered a job in 
 
         the maintenance shop of Jensen in the town of Independence, Iowa 
 
         but claimant refused to accept this job.  He said that it would 
 
         require him to commute 42 miles which he could not do without the 
 
         help of his wife who had a job of her own.  Claimant explained 
 
         that he was also reluctant to move his residence.  Claimant then 
 
         did move his residence to the State of California in March 1984 
 
         to obtain employment in conjunction with his wife as apartment 
 
         managers.  Claimant said that his wife was to handle the 
 
         paperwork and book work and he was to handle the maintenance and 
 
         repair activity.  They both were paid $650 a month in addition to 
 
         their free rent and utilities.  Claimant's wife has since passed 
 
         away. Claimant's employer testified by deposition that she 
 
         currently is quite dissatisfied with claimant's job performance 
 
         because of his forgetfulness and that she must do the 
 
         administrative work.  She complains that claimant is too slow and 
 
         cannot handle the work of normal apartment managers.  This 
 
         employer is considering replacing claimant with another married 
 
         couple.  To date, claimant has not been fired and there has been 
 
         no reduction in what he is being paid.
 
         
 
              Claimant is 61 years of age at the time of hearing.  
 
         Claimant is a high school graduate and holds an associate of arts 
 
         degree in business administration.  Claimant earned over 190 
 
         hours of additional college credit while in his 30's pursuing 
 
         various courses of study at junior colleges in the State of 
 
         California. However, claimant failed to obtain sufficient hours 
 
         in any specific field to earn a baccalaureate degree.  Claimant's 
 
         first employment involved various jobs including factory work and 
 
         sales. He taught elementary school for one year.  For several 
 
         years in the late 60's and early 70's, claimant was an equipment 
 
         technician for the chemistry labs of CAL State University at 
 
         Fullerton, California.  This job involved not only storeroom type 
 
         duties but work involving the purchasing, planning and proposed 
 
         budgeting of laboratory physical needs in conjunction with the 
 
         head of the chemistry department.  Both of claimant's superiors 
 
         at CAL State during this period of time testified that claimant 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         performed excellently in this job before he left in 1972.  Both 
 
         also testified that they have noticed a significant drop in his 
 
         intellectual functions and thought processes from their 
 
         observations of claimant's behavior since his return to the State 
 
         of California in March of 1984.  Despite the occurrence of a 
 
         vacancy in this equipment technician job since claimant has 
 
         returned to California, he was not offered the job by the 
 
         Chemistry Department.  Claimant said that he was told he was 
 
         "overqualified" for the position.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              After leaving the equipment technician job in 1972, claimant 
 
         purchased a couple of grocery stores in the State of Colorado and 
 
         operated them for a period of time until he purchased a larger 
 
         store in Tipton, Iowa.  Claimant said that for a period of time 
 
         these grocery store operations were successful but the store in 
 
         Tipton eventually began to lose money for some reason unknown to 
 
         claimant and he was forced to give up the operation.  Claimant 
 
         then moved from Tipton, Iowa to Cedar Rapids, Iowa and began 
 
         working for Jensen.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Note:  A credibility finding is necessary to this decision 
 
         as defendants place claimant's credibility at issue during 
 
         cross-examination as to the nature and extent of the initial 
 
         injury.  The credibility of Dr. Varney is also at issue in this 
 
         case.  From their demeanor while testifying, both claimant and 
 
         Dr. Varney are found quite credible.
 
         
 
                I.  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 
 
         insufficient along 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. Asse 
 
         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).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In the case sub judice, the fighting issue is the causal 
 
         connection of claimant's alleged seizure difficulties and alleged 
 
         frontal lobe damage to the truck accident.  Claimant has not 
 
         shown that he suffers permanent disability due to his neck, back 
 
         and shoulder problems following the accident as treatment lasted 
 
         for only a few months and he does not apparently have any current 
 
         complaints.
 
         
 
              First, the dispute at hearing concerning the extent of 
 
         damage to the truck is an extraneous issue.  The real issue is 
 
         the extent of the damage to claimant's head and brain.  The 
 
         uncontroverted diagnosis of brain concussion by the admitting 
 
         hospital physicians after the accident is conclusive as to the 
 
         nature of claimant's initial injury.
 
         
 
              Second, with reference to the causal connection of 
 
         claimant's alleged seizures or "blank stare episodes", the 
 
         physicians at University of Iowa appear to disagree with the 
 
         treating physicians as to the exact nature of claimant's 
 
         difficulties.  Drs. Risk and Veduyn have been treating claimant 
 
         for convulsive disorders with anti-convulsive medication which 
 
         claimant testified helps reduce the incidents of these seizures.  
 
         University of Iowa physicians had trouble concluding that 
 
         claimant's diagnosis was organic but offered no other plausible 
 
         explanation for claimant's symptoms which he credibly testified 
 
         began at the time of the accident.  The only psychiatric 
 
         evaluation was negative.  Therefore, given claimant's credible 
 
         testimony and the available medical records which show a total 
 
         lack of symptomatology before April 5, 1982, the more convincing 
 
         opinions are those of Drs. Risk and Veduyn.
 
         
 
              Third, with reference to the claim of closed head injury and 
 
         temporal lobe damage to the brain, again we must give 
 
         considerable weight to Dr. Veduyn's medical diagnosis and the 
 
         clinical observations of the psychologist, Dr. Varney, who has 
 
         extensively worked with patients with such injuries.  Such 
 
         evidence is most convincing given claimant's education and 
 
         business activities prior to the truck accident and his condition 
 
         today.  One cannot ignore the fact that two chemistry professors 
 
         verify that there has been a significant dramatic change in 
 
         claimant's thought processes since before and after the accident.  
 
         We are dealing with a man who had significant management and 
 
         educational skills developed at CAL State University and who went 
 
         on to manage a grocery store business for a period of time which 
 
         was successful. Today, this man cannot even perform simple 
 
         maintenance and repair duties with any degree of competency.  The 
 
         greater weight of the credible evidence demonstrates a clear 
 
         causal connection of the April 5, 1982 accident and claimant's 
 
         current mental difficulties.
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on 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 has resulted 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 situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's medical condition before the work injury was 
 
         excellent and he had no functional mental impairments or 
 
         ascertainable mental disabilities.  Claimant was fully able to 
 
         perform highly intellectual tasks such as the completion of close 
 
         to 200 hours of college credit, the management of several 
 
         chemistry labs at a state university, the attainment of an 
 
         associates of arts degree in business administration and the 
 
         operation of two grocery store businesses.  Claimant was a 
 
         successful truck driver at the time of the injury earning close 
 
         to $600 per week.
 
         
 
              As a result of his seizure disorders and his mental 
 
         injuries, claimant's treating physicians are unable to release 
 
         claimant to return to work as a truck driver.  Due to his mental 
 
         impairment, claimant is today unable to competently perform any 
 
         administrative duties or even simple maintenance and repair 
 
         activities at an apartment complex.  Claimant's mental condition 
 
         prevents him from returning to his former work and to competently 
 
         perform any type of employment he has held in the past.
 
         
 
              Claimant requests application of the odd-lot doctrine.  This 
 
         doctrine is a procedural device designed to shift the burden of 
 
         proof with respect to employability to the employer in certain 
 
         factual settings.  Klein v. Furnas Elec. Co., 384 N.W.2d 370, 375 
 
         (Iowa 1986)  Under the "odd-lot" doctrine, claimant is able to 
 
         establish  a prima facie case for unemployability and permanent 
 
         total disability benefits from only a factual showing of a 
 
         reasonable but unsuccessful effort to find suitable work.  At 
 
         that time if defendants then fail to go forward with the evidence 
 
         on the issue of availability of suitable work, claimant is 
 
         entitled to an award of permanent total disability.  Guyton v. 
 
         Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985).  However, the 
 
         industrial commissioner has directed that this doctrine cannot be 
 
         applied by a deputy without a showing of a reasonable effort to 
 
         secure employment.  Collins v. Friendship Village, Inc., case no. 
 
         679258, Appeal Decision filed October 31, 1988; Pyle v. 
 
         Carstensen, Inc., case no. 753361.
 
         
 
              First, claimant has shown a reasonable attempt to return to 
 
         work.  Claimant has first attempted to find employment in the 
 
         Cedar Rapids area.  He then moved to California with his wife to 
 
         jointly manage an apartment complex.  The importance of his 
 
         wife's presence in this relationship is evident now that she has 
 
         passed away.  Claimant's current employer has clearly indicated 
 
         that she is dissatisfied with claimant's current work performance 
 
         and she is looking to replace him.  Claimant has therefore 
 
         established sufficient grounds for the application to shift the 
 
         burden of proof under the odd-lot doctrine.  Second, with 
 
         reference to defendants going forward with the evidence on 
 
         availability, Jensen's offer of employment was of little help to 
 
         defendants. Claimant is simply unable to competently perform 
 
         maintenance work in an apartment complex.  How then is he 
 
         competent to perform more complicated maintenance work on trucks.  
 
         Also, it would appear that having a driver's license would be 
 
         important to any truck mechanic which claimant cannot obtain in 
 
         the State of Iowa. However, claimant was working at the time of 
 
         the hearing as an apartment complex maintenance man.  Such 
 
         evidence prevents the automatic application of the odd-lot 
 
         doctrine and places the burden back upon claimant to demonstrate 
 
         that such work is not evidence of employability.  Third, claimant 
 
         has shown that despite his current employment as a part-time 
 
         maintenance and repair person, he is unemployable in the 
 
         competitive labor market and is permanently and totally disabled.  
 
         Claimant's employer clearly expressed the view that claimant's 
 
         current work as incompetent and unsatisfactory.  At the present, 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         claimant's job exists by virtue of the grace of his employer.  
 
         This is little more than a "shelter workshop" type of employment 
 
         in the private sector.  Claimant's current condition in 
 
         employment is consistent with Dr. Varney's opinion that claimant 
 
         is totally and permanently disabled.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant is 61 years of age and was nearing the end of his 
 
         working career at the time of the injury.  However, he was only 
 
         53 at the time of the injury with no plans for early retirement.  
 
         It is well settled that such an age is no impediment to a finding 
 
         of permanent total disability in appropriate cases.  Diederich, 
 
         219 Iowa 587, 258 N.W. 899 (1935).
 
         
 
              After examination of all of the factors, it is found from 
 
         claimant's and Dr. Varney's credible testimony that claimant has 
 
         suffered a 100 percent loss of earning capacity from his work 
 
         injury.  Based upon such a finding, claimant is entitled as a 
 
         matter of law to permanent total disability benefits under Iowa 
 
         Code section 85.34(3) for the  balance of his life absence a 
 
         change in his condition.  Due to the finding of permanent total 
 
         disability, the extent of healing period benefits is a moot 
 
         question.  Claimant will be awarded weekly benefits for the times 
 
         off work prior to June 13, 1982 and continuing with weekly 
 
         benefits from June 13, 1982 when the mental condition developed 
 
         and permanent total disability began.
 
         
 
              III.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  However, claimant is entitled to an 
 
         order of reimbursement only if claimant has paid these expenses. 
 
         otherwise, claimant is entitled to an order directing the 
 
         responsible defendants to make such payments.  See Krohn v. 
 
         State, 420 N.W.2d 463 (Iowa 1988).  The parties stipulated as to 
 
         the causal connection of claimant's mental health condition to 
 
         the requested medical expenses.  Consequently, the finding above 
 
         that the condition is causally connected to the work injury 
 
         causally connects the expenses to the injury.  Payment of these 
 
         expenses will be awarded.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant and Dr. Varney were credible witnesses.  Their 
 
         appearance while testifying indicated that they were testifying 
 
         truthfully.
 
         
 
              2.  The work injury of April 5, 1982, was a cause of two 
 
         brief periods of total disability from work from April 6, 1982 
 
         through April 17, 1982 and from May 10, 1982 through June 5, 1982 
 
         due to back, neck and shoulder pain.  During this time claimant 
 
         was treated by his physicians with medication, rest and physical 
 
         therapy.
 
         
 
              3.  Beginning on June 13, 1982, the work injury of April 5, 
 
         1982, was a cause of a significant and dramatic permanent partial 
 
         mental impairment.  Claimant has developed seizure or convulsive 
 
         disorders in which he experiences regular seizures or "blank 
 
         stare episodes" where he is conscious but unable to communicate 
 
         or perform activity.  Claimant experiences such episodes at least 
 
         twice each month.  Claimant has taken anti-convulsive medication 
 
         for this condition since 1982.  Claimant has also suffered a 
 
         closed head injury resulting in frontal temporal lobe brain 
 
         damage.  Although his overall intellectual intelligence is high, 
 
         claimant's thinking is impaired.  Claimant is indecisive, absent 
 
         minded, slow in decision making, and lacks insight in his 
 
         everyday contacts and social and work activity.  Prior to the 
 
         injury, claimant's thinking was developed to a high degree and he 
 
         was able to earn 190 hours of college credit and the requirements 
 
         for an associate arts degree in business administration.  Prior 
 
         to the injury claimant successfully performed work involving the 
 
         management of equipment needs at chemistry labs at a large state 
 
         university where he was expected to keep not only inventory of 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         the equipment but perform purchasing and planning activities in 
 
         conjunction with chemistry professors.  Following this 
 
         employment, claimant was able to operator and manage grocery 
 
         store business and to perform successful over-the-road trucking 
 
         activities until the work injury.  Claimant had no mental 
 
         impairments before April 5, 1982.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              4.  The work injury of April 5, 1982 and the resulting 
 
         permanent partial mental impairment is a cause of a 100 percent 
 
         loss of his earning capacity.  Claimant is unable to return to 
 
         truck driving due to his seizures.  Claimant is 61 years of age 
 
         but was 53 at the time of the injury.  Claimant has a high school 
 
         education.  Claimant had no plans for early retirement at the 
 
         time of the injury.  Claimant is currently earning $650 a month 
 
         as a maintenance and repair worker for an apartment complex 
 
         business. This job was obtained initially only by reason of his 
 
         wife joining him in the employment as apartment managers.  
 
         Claimant's wife performed the administrative work and book work 
 
         duties.  Claimant was to perform the maintenance duties.  
 
         Claimant's wife has since passed away and claimant's employer is 
 
         currently considering replacing him because he is performing the 
 
         job in an incompetent manner.  Due to his diminished intellectual 
 
         capacities, claimant is unable to perform even routine simple 
 
         maintenance work. Claimant was offered light maintenance work by 
 
         Jensen after the injury, but claimant has shown that he would not 
 
         be able to perform such work in a competent manner.  Despite the 
 
         fact that he is currently employed, his current job is due only 
 
         to the grace of his current employer.  Claimant's current 
 
         employment is merely a shelter workshop type of setting.  
 
         Claimant is not employable in the competitive labor market due to 
 
         his mental disabilities.
 
         
 
              5.  The requested medical expenses in exhibits I and J are 
 
         fair and reasonable and were incurred by claimant for reasonable 
 
         and necessary treatment of his work injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to permanent 
 
         total disability benefits and to medical expenses totaling 
 
         $861.55.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant permanent total 
 
         disability benefits during the period of his disability from 
 
         April 6, 1982 through April 17, 1982; from May 10, 1982 through 
 
         June 5, 1982; and from June 13, 1982 for an indefinite period of 
 
         time during the period of his disability at the rate of two 
 
         hundred ninety-eight and 14/100 dollars ($298.14).
 
         
 
              2.  Defendants shall pay the medical expenses listed in 
 
         exhibits I and J as described in the prehearing report.  Claimant 
 
         shall be reimbursed for any of these expenses paid by him. 
 
         Otherwise, defendants shall pay the provider directly along with 
 
         any lawful late payment penalties proposed on the account by the 
 
         provider.
 
              
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              4.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 13th day of March, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       LARRY P. WALSHIRE
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Joseph M. Bauer
 
         Attorney at Law
 
         Suite 500
 
         The Saddlery Bldg
 
         309 Court Ave
 
         Des Moines, IA  50309
 
         
 
         Mr. W. H. Gilliam
 
         Attorney at Law
 
         Water St Ct, Second Floor
 
         Waterloo, IA  50703-4785
 
         
 
         Mr. E. J. Giovannetti
 
         Attorney at Law
 
         2700 Grand Ave
 
         Suite 111, Terrace Center
 
         Des Moines, IA  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1804
 
                                            Filed March 12, 1990
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ALBERT L. WARNER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 702191
 
         JENSEN TRANSPORT, INC.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         IOWA NATIONAL MUTUAL INS. Co.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1804
 
         
 
              Permanent total disability benefits awarded despite the fact 
 
         that claimant was employed at the time of hearing.  The odd-lot 
 
         doctrine was not applied.
 
         
 
              It was found that claimant was rendered mentally impaired by 
 
         a truck accident causing frontal lobe damage and seizure 
 
         disorders.  Prior to the injury, claimant was fully able to 
 
         engage in intellectual pursuits both in academic and business 
 
         environments.  After the injury, claimant was unable to 
 
         competently perform even routine maintenance and repair work in 
 
         an apartment complex.  This job was initially obtained only 
 
         because he and his wife were employed together as apartment 
 
         managers.  His wife was able to perform the administrative duties 
 
         and book work. However, claimant's wife has now died and the 
 
         current employer is dissatisfied with claimant's performance 
 
         which she believes is incompetent due to his mental deficiencies.  
 
         Claimant is currently working only by the grace of his employer 
 
         in what would be termed a private sheltered workshop environment.  
 
         It was held that claimant is not employable in the competitive 
 
         labor market despite his current job.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEITH D. WORRELL,
 
         
 
              Claimant,
 
                                                    File No. 702268
 
         vs.
 
         
 
                                                      A P P E A L
 
         GRIFFIN WHEEL CO.
 
                                                    D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from a review-reopening decision awarding 
 
         12 1/2 percent permanent partial disability of the body as a 
 
         whole and nursing services expenses.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing; claimant's exhibits 1 through 18; and 
 
         defendant's exhibits 1 through 4.  Defendant filed a brief on 
 
         appeal.
 
         
 
                                      ISSUES
 
         
 
              The issues on appeal are whether there is a causal 
 
         connection between claimant's disability and his May 7, 1982 
 
         injury and whether claimant is entitled to nursing services 
 
         expenses for care provided by his spouse.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be totally 
 
         reiterated herein.
 
         
 
              On May 7, 1982, while claimant was working, a one-half ton 
 
         railroad wheel fell from behind him and struck him in the legs 
 
         below the knees and knocked him to the floor.  As a result of 
 
         this incident he received broken bones in both legs and kneecaps. 
 
          He was hospitalized for about two weeks and returned home where 
 
         he was bedridden for about six and a half months.  His wife, who 
 
         is certified as a nurse's aide in the state of Missouri and had 
 
         been working part-time at a nursing home for $3.75 per hour, 
 
         cared for claimant while he was bedridden.
 
         
 
              Claimant testified that while he was in the hospital, he 
 
         complained of back pain to Bruce L. Sprague, M.D., and that two 
 
         or three weeks after his return home from the hospital he asked 
 
         his local doctor, John Beckert, D.O., for pain medication for his 
 
         back.  Claimant also testified that the pain grew worse after his 
 
         return to work.
 
         
 
              Dr. Sprague was claimant's treating physician for his leg 
 

 
         
 
         
 
         
 
         WORRELL V. GRIFFIN WHEEL CO.
 
         Page   2
 
         
 
         
 
         injuries.  The doctor advised that claimant did not complain to 
 
         him of back pain until October 1983, shortly after claimant 
 
         returned to work.  Dr. Sprague said there was no indication of 
 
         trauma to claimant's back in May 1982 and he could not 
 
         therefore see any causal relationship between the May 1982 
 
         injury and October  1983 back complaints.  However, it was Dr. 
 
         Sprague's opinion that claimant's back condition could have 
 
         been indirectly related due to muscle weakness as a result of 
 
         being off work for fifteen months.  Dr. Sprague found a 20 
 
         percent permanent partial  impairment to the lower left 
 
         extremity and no permanent impairment to the lower right 
 
         extremity.  A March 27, 1984 letter from Dr. Sprague indicates 
 
         that he could not say whether claimant's back problem was 
 
         "directly" related to his work injury but opined that the back 
 
         problem could be secondary to the incident of injury and weak 
 
         muscles due to one year of rehabilitation.
 
         
 
              Dr. Beckert testified in his deposition that he had 
 
         treated claimant on several occasions, both before and after 
 
         his work accident.  The doctor said that he had treated 
 
         claimant previously for back pain in the cervical and dorsal 
 
         areas but not for lumbar pain until after the leg injuries.  He 
 
         opined that claimant's back complaints were causally related to 
 
         the work injury primarily based upon the fact that claimant had 
 
         no complaints prior to that injury.  The doctor described the 
 
         condition as permanent but did not express an opinion on the 
 
         degree of disability.
 
         
 
              Jerry L. Jochims, M.D., stated that he examined claimant 
 
         on August 14, 1984.  At that time he obtained a history from 
 
         claimant and reviewed evaluation reports from other doctors who 
 

 
         
 
         
 
         
 
         WORRELL V. GRIFFIN WHEEL CO.
 
         Page   3
 
         
 
         
 
         had examined claimant.  Based upon that examination, Dr. 
 
         Jochims opined that claimant had probably not reached his full 
 
         tolerance for physical activity at the time of the August 1984 
 
         examination.  He said, however, that this would not affect his 
 
         impairment rating of claimant's back condition which he 
 
         described as minimal.  He assessed a total impairment to 
 
         claimant of 17 percent of the body as a whole.  This was 
 
         composed of a five percent rating to the dorsal spine for an 
 
         old compression fracture; five percent to the lumbar spine for 
 
         instability; and, the remainder being related to the lower 
 
         extremities.  Dr. Jochims related all of these problems to 
 
         claimant's work injury but said the compression fracture could 
 
         have other causes if claimant's history included such things as 
 
         auto accidents.  The doctor further opined that claimant had a 
 
         five percent impairment to the right lower extremity as a 
 
         result of a fractured patella and a 12 percent impairment of 
 
         the left extremity for a fractured patella and crushing 
 
         injury.
 
         
 
              Webster B. Gelman, M.D., examined claimant relative to low 
 
         back complaints in March 1984.  After examining claimant and 
 
         certain of his medical records, the doctor said he found 
 
         nothing suggestive of injury to claimant's low back.  He 
 
         stated, however, that he believed claimant to be honest about 
 
         his back pain and believed that the pain was by implication 
 
         related to the May 1982 injury.
 
         
 
              D. Mackenzie, M.D., examined claimant and in a letter 
 
         dated February 19, 1986 stated that the thoracic and lumbar 
 
         spines were entirely normal.  The doctor stated that there was 
 
         no evidence that any of claimant's back problems were 
 
         neurological or post-traumatic in nature.
 
         
 

 
         
 
         
 
         
 
         WORRELL V. GRIFFIN WHEEL CO.
 
         Page   4
 
         
 
         
 
              Claimant's wife testified that when claimant was released 
 
         from the hospital following his injury he was totally 
 
         incapacitated and confined to a hospital bed.  She stated that 
 
         she washed his hair in bed and changed the bed with him in it.  
 
         She helped him get in and out of the wheelchair from the bed.  
 
         After a therapist had shown claimant's wife how to do therapy, 
 
         she did therapy with him.
 
         
 
                              APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and evidence.
 
         
 
         
 
                                     ANALYSIS
 
         
 
              Defendant attempted to introduce evidence which consisted of 
 
         certain medical reports after the review-reopening hearing.  The 
 
         defendant admits in its application that it had received them and 
 
         that it was erroneously assumed that claimant would introduce the 
 
         exhibits at the time of the hearing.  Defendant's application to 
 
         introduce is herein denied and the medical records are not part 
 
         of the evidence in this matter.  See Division of Industrial 
 
         Services Rule 343-4.31.
 
         
 
              Defendant argues on appeal that the deputy erred in finding 
 
         a causal connection between claimant's work injury and a 
 
         permanent partial disability of the body as a whole of 12 1/2 
 
         percent.  Defendant's argument is not persuasive.  Claimant 
 
         clearly suffered a severe injury which required many months of 
 
         convalescence including being bedridden for six and a half 
 
         months.  It is reasonable to believe that not all of claimant's 
 
         injuries were immediately known to him or his physicians.  It is 
 
         also reasonable to believe that his lower back condition did not 
 
         manifest itself until after the injury or until after his 
 
         extensive bedridden period.  The examining physicians generally 
 
         found that claimant suffered a back strain as a result of his 
 
         injury.  While Dr. Sprague, one of the treating physicians, is 
 
         reluctant to state that the back injury was directly related to 
 
         the work injury, he nonetheless indicates that the back injury is 
 
         secondary to the incident of the work injury.
 
         
 
              Doctors Beckert and Gelman found, by implication, that 
 
         claimant had a sprain resulting from the work injury.  Dr. 
 
         Jochims thought claimant's back problem was causally connected to 
 
         his work injury but Dr. Mackenzie found no evidence that his back 
 
         problem was neurological or post-traumatic in nature.  Dr. 
 
         Jochims was the only doctor that gave an impairment rating for 
 
         the lower right extremity, the back or the body as a whole.  Dr. 
 
         Sprague was the primary treating physician and his testimony 
 
         should be given the most weight.  The deputy correctly concluded 
 
         that claimant's thoracic compression fracture was not the result 
 
         of the work injury.  Claimant has proved by the great weight of 
 
         evidence that the lumbar sprain was causally connected to his 
 
         work injury.
 
         
 
              There is no dispute that claimant has suffered permanent 
 
         impairment to his left leg.  Dr. Sprague's opinion is relied upon 
 

 
         
 
         
 
         
 
         WORRELL V. GRIFFIN WHEEL CO.
 
         Page   5
 
         
 
         
 
         and it is concluded that claimant has no impairment to the right 
 
         leg.  Claimant does have an impairment of five percent to his 
 
         lumbar spine.  Considering all the factors, the deputy was 
 
         correct in determining that claimant has proved by the greater 
 
         weight of evidence that claimant suffered a 12 1/2 percent 
 
         industrial disability of the body as a whole.
 
         
 
              Defendant next argues that the deputy erred in awarding 
 
         payment to claimant's wife for services for 21 hours per week for 
 
         26 weeks at $3.50 per hour.  Defendant's main argument is that 
 
         claimant wishes to be paid after the services were performed and 
 
         as a result, defendant did not have an opportunity to approve the 
 
         services beforehand.  Claimant was bedridden for approximately 
 
         six and one-half months after his injury and the amount awarded 
 
         by the deputy for the services of claimant's wife constitute only 
 
         three hours per day at nearly minimum wage.  Iowa Code section 
 
         85.27 provides that an employer has an obligation to furnish 
 
         reasonable services and supplies to treat an injured employee and 
 
         has the right to choose the care.  The services of claimant's 
 
         wife the deputy ordered are certainly reasonable in both amount 
 
         and cost.  Defendant should have known that claimant was going to 
 
         require extended care, especially in light of the fact he was in 
 
         the hospital for two weeks after surgery with two broken legs.  
 
         Defendant, by not objecting to claimant's wife's services and by 
 
         not offering alternative services, in effect, waived its right to 
 
         choose the services.  Defendant will not now be allowed to object 
 
         to the services which are definitely reasonable.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On May 7, 1982 claimant suffered an injury arising out 
 
         of and in the course of his employment.
 
         
 
              2.  As a result of his injury, claimant broke both legs and 
 
         suffered a back strain.
 
         
 
              3.  Claimant has a 20 percent permanent impairment to his 
 
         left extremity; five percent impairment to his lumbar spine; and 
 
         no impairment to his lower right extremity.
 
         
 
              4.  Claimant has returned to work.
 
         
 
              5.  Claimant is young, intelligent, and well motivated.
 
         
 
              6.  Claimant's rate of compensation is $243.74.
 
         
 
              7. Claimant has been previously paid 44 weeks of permanent 
 
         disability representing 20 percent disability to the lower left 
 
         extremity.
 
         
 
              8.  Teresa worrell provided nursing services to claimant 
 
         equal in value to $1,911.
 
         
 
              9.  Dr. Jochims' bill for an independent medical examination 
 
         is fair and reasonable.
 
         
 
             10.  Claimant's industrial disability as a result of his 
 
         injuries is 12 1/2 percent.
 

 
         
 
         
 
         
 
         WORRELL V. GRIFFIN WHEEL CO.
 
         Page   6
 
         
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         there is a causal connection between his injury of May 7, 1982 
 
         and industrial disability of 12 1/2 percent.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         nursing services from his wife were authorized and the reasonable 
 
         value thereof is $1,911.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         the charges for Dr. Jochims' examination are fair and 
 
         reasonable.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay claimant an additional eighteen and 
 
         one-half (18 1/2) weeks of compensation at the rate of two 
 
         hundred forty-three and 74/100 dollars ($243.74) commencing April 
 
         6, 1984.  All accrued payments to be made in a lump sum together 
 
         with statutory interest.
 
         
 
              That defendant pay unto Teresa Worrell one thousand nine 
 
         hundred eleven dollars ($1,911) for nursing services rendered to 
 
         claimant.
 
         
 
              That defendant reimburse claimant for four hundred two 
 
         dollars ($402) expended for the examination by Dr. Jochims.
 
         
 
              That the costs of this action including costs of the appeal 
 
         and the transcription of the hearing proceeding are taxed to 
 
         defendant.
 
         
 
              That defendant shall file a claim activity report as 
 
         requested by this agency pursuant to Division of Industrial 
 
         Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 26th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                  DAVID E.LINQUIST
 
                                                  INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         Keokuk, Iowa 52632-1066
 

 
         
 
         
 
         
 
         WORRELL V. GRIFFIN WHEEL CO.
 
         Page   7
 
         
 
         
 
         
 
         Mr. John E. Kultala
 
         Attorney at Law
 
         511 Blondeau Street
 
         Keokuk, Iowa 52632
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1108.50 - 2505
 
                                                  Filed February 26, 1988
 
                                                  DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEITH D. WORRELL,
 
         
 
              Claimant,
 
                                                    File No. 702268
 
         vs.
 
                                                      A P P E A L
 
         GRIFFIN WHEEL CO.,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1108.50
 
         
 
              Claimant's lumbar sprain did not manifest itself until after 
 
         claimant's six and a half month convalescence resulting from two 
 
         broken legs in a work accident.  The lumbar sprain was causally 
 
         connected to the work injury.  The five percent impairment to the 
 
         lumbar spine and 20 percent impairment to the left leg resulted 
 
         in an industrial disability to the body as a whole of 12 1/2% 
 
         percent.
 
         
 
         2505
 
         
 
              Defendant should have known that claimant would require 
 
         nursing care as a result of two broken legs and surgery followed 
 
         by two weeks of hospitalization.  Payment for nursing care 
 
         provided by claimant's spouse who was a nurse's aide was allowed 
 
         even though claim for payment was not made until after the 
 
         services were provided.  The claim for services was reasonable 
 
         both in amount and cost.
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT MORGAN,
 
                                          File No. 703009
 
              Claimant,
 
                                         R E V I E W
 
          VS.
 
                                         R E 0 P E N I N G
 
          ARMOUR DIAL COMPANY,
 
                                         D E C I S I O N
 
               Employer,
 
               Self-Insured,
 
               Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by Robert 
 
         Morgan, claimant, against Armour Dial Company, self-insured 
 
         employer (hereinafter referred to as Dial), defendant, for the 
 
         recovery of further workers' compensation benefits as a result of 
 
         an alleged injury on May 4, 1982.         A prior final 
 
         arbitration/appeal decision for this injury was filed on August 
 
         23, 1985.  On April 17, 1990, 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 was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
                                      ISSUES
 
         
 
              The only issues submitted by the parties at hearing for 
 
         determination in this proceeding is whether claimant is entitled 
 
         to further physical therapy under Iowa Code section 85.27 as the 
 
         result of the May 4, 1982 injury.
 
         
 
                              STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions
 
         
 
         
 
         
 
         MORGAN V. ARMOUR DIAL COMPANY
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         about the evidence received contained in the following statement 
 
         shall be viewed as preliminary findings of fact.
 
         
 
              According to prior agency decisions in this matter, claimant 
 
         injured his back while attempting to lift some meat while in the 
 
         employ of Armour on May 4, 1982.  As a result of that injury, 
 
         claimant lost a considerable amount of time from work and had to 
 
         undergo a surgical fusion of a portion of his spine.  The 
 
         disputes in the prior agency proceedings involved the causal 
 
         connection of claimant's difficulties and the extent of 
 
         claimant's entitlement to permanent disability benefits.  A 
 
         finding by a deputy commissioner of causal connection and a 17.5 
 
         percent industrial disability was upheld on appeal.
 
         
 
              Claimant testified that sometime prior to the hearing in 
 
         this case (claimant was not specific as to when) defendant 
 
         stopped paying for physical therapy which he had been receiving 
 
         since the injury.  Claimant desires such therapy which he states 
 
         helps him deal with his frequent muscle spasms which occur 
 
         approximately two or three times a day.  Claimant states that the 
 
         frequency of these spasms have not changed since the original 
 
         injury.  Claimant denies that his outside activities such as his 
 
         involvement in the National Guard affected the frequency of these 
 
         spasms.  He stated that he now is retired from the Guard but 
 
         still experiences the same spasms as before.
 
         
 
              Claimant's current treating physician, James Kannenberg, 
 
         M.D., testified by deposition.  He stated that he took over 
 
         claimant's primary care when the treating orthopedic surgeon, 
 
         Donald MacKenzie, M.D., moved out of town in May 1986.  Dr. 
 
         Kannenberg stated that claimant's current condition is unchanged 
 
         from that time.  Claimant suffers from periods of flare-ups which 
 
         require more treatment in the form of physical therapy and 
 
         medications.  Dr. Kannenberg stated that the fusion surgery could 
 
         have caused the muscle spasms but admitted that claimant had 
 
         spasms before the surgery.  He stated that it was possible for 
 
         the spasms to have been caused by claimant's scoliosis condition 
 
         which existed prior to the work injury in 1982.  Dr. Kannenberg 
 
         responded to the affirmative to the following question with 
 
         reference to claimant's muscle spasms: "Doctor, the things we've 
 
         talked about.  They have been limited to the work injury that he 
 
         originally have.  Is that correct?" (Dr. Kannenberg's deposition, 
 
         page 9)
 
         
 
              Koert Smith, M.D., examined claimant on April 1, 1987, and 
 
         diagnosed degenerative arthritis with scoliosis with radicular 
 
         symptoms intermittently with no neurologic deficits.
 
         
 
         
 
         
 
         MORGAN V. ARMOUR DIAL COMPANY
 
         Page 3
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant is apparently still working at Dial.  Claimant had 
 
         to discontinue physical therapy when defendant refused to pay for 
 
         such treatment.      Claimant states that he still continues to 
 
         have muscle spasms which at the present time go untreated.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Pursuant to Iowa Code section 85.27, claimant is entitled to 
 
         payment of reasonable medical expenses incurred for treatment of 
 
         a work injury.        Claimant is entitled to an order of 
 
         reimbursement if claimant has paid those expenses. otherwise, 
 
         claimant is entitled to an order directing the responsible 
 
         defendants to make those payments directly to the providers.    
 
         See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
         
 
              Claimant testified that he needs physical therapy to deal 
 
         with his occasional flare-ups so he could continue to work.  This 
 
         need for therapy is verified by his current treating physician.
 
         
 
              Defendant contends that the physical therapy for spasms is 
 
         caused by the scoliosis, a condition unrelated to the work 
 
         injury.  Dr. Kannenberg's testimony that such spasms began after 
 
         the fusion surgery appears incorrect.  However, claimant 
 
         testified that the spasms definitely began to occur after the 
 
         work injury and this testimony is uncontroverted.  In both the 
 
         prior review-reopening decision and appeal decision by this 
 
         agency, it was found that claimant had ongoing muscle spasms and 
 
         both found claimant's disability was the result of the work 
 
         injury of May 1982.  The issue of the causal connection of 
 
         claimant's muscle spasms herein has apparently already been 
 
         litigated in this matter.
 
         
 
              Defendant relies upon Dr. Smith's opinions and the notes of 
 
         the physical therapist as to claimant's National Guard 
 
         activities.  With reference to Dr. Smith, he merely diagnosed 
 
         arthritis  with scoliosis without rendering any causal connection 
 
         opinion.  Dr. Kannenberg's causal connection opinions clearly 
 
         relate claimant's problems to the work injury.  If anything, Dr. 
 
         Smith supports claimant's case for physical therapy by stating 
 
         that  such therapy is needed for claimant to continue working.  
 
         The physical therapist did state that claimant's need for 
 
         physical therapy was dependant at times upon  his activities 
 
         including the National Guard activities.  Claimant denies this 
 
         but in any event, the underlining condition, which creates his 
 
         susceptibility to flare-ups and injury was caused by the original 
 
         injury according to the prior agency decisions in this matter and
 
         
 
         
 
         MORGAN V. ARMOUR DIAL COMPANY 
 
         Page 4
 
         
 
         
 
         the current views of Dr. Kannenberg.  The medical opinions 
 
         offered by defendant in this case do not refute this finding.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Since the last hearing, claimant has been suffering from 
 
         occasional back spasms and flare-ups requiring more extensive 
 
         physical therapy and medication.
 
         
 
              2. Claimant continues to experience regular muscle spasms in 
 
         his back.
 
         
 
              3. The work injury of May 4, 1982, is one of the significant 
 
         causes of claimant's occasional back flare-ups and muscle spasms.
 
         
 
              4. Physical therapy treatment for muscle spasms and 
 
         occasional flare-ups as recommended by Dr. Kannenberg and Dr. 
 
         Smith is reasonable and necessary treatment of the work injury.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has established under law entitlement to the 
 
         medical benefits requested.
 
         
 
                                      ORDER
 
         
 
              1. Defendant shall provide to claimant any and all physical 
 
         therapy treatment and other treatment recommended by James 
 
         Kannenberg, M.D., to treat claimant's muscle spasms and 
 
         occasional back flare-ups.
 
         
 
              2. Defendant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
         
 
              Signed and filed this 26th day of April, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MORGAN V. ARMOUR DIAL COMPANY
 
         Page 5
 
         
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         Keokuk  IA  52632-1066
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         111 E Third St
 
         Davenport IA 52801-1550
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-2700
 
                                         Filed April 26, 1990
 
                                         LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT MORGAN,
 
                                                File No. 703009
 
              Claimant,
 
                                              R E V I E W
 
         VS.
 
                                                R E 0 P E N I N G
 
         ARMOUR DIAL COMPANY,
 
                                              D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         5-2700
 
         
 
              Claimant is entitled to physical therapy according to his 
 
         treating physician.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         HENRY L. HEWITT,
 
         
 
             Claimant,
 
         
 
         VS.
 
         
 
                                                   File No. 704533
 
         SIOUX CITY BRICK AND TILE,
 
                                                     A P P E A L
 
             Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
             Insurance Carrier,
 
             Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying all 
 
         compensation because he failed to establish that his alleged work 
 
         injury aggravated his preexisting condition.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing, claimant's exhibits A through H and joint 
 
         exhibits 1 through 16.  Both parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              Claimant states the following issue on appeal: Whether there 
 
         is a causal relationship between the injury of May 24th, 1982 and 
 
         claimant's asserted disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              On May 24, 1982 claimant alleges he sustained a work-related 
 
         injury to his neck when he hit his head getting into a company 
 
         owned automobile.  Claimant continued to work, but sought 
 
         treatment following this injury from John W. Schwietert, D.C., 
 
         and R. G. Knuth, D.C.
 
         
 
         Dr. Schwietert stated in a letter dated November 18, 1982 that 
 
         "[t]he Lat. Cerv. film reveals definite narrowing of the
 
         
 
         C5-6 IVD space, with lipping and spurring of the bodies in that 
 
         area; the Obliques reveal definite narrowing of the right 
 
         Intervertebral foramina and slight narrowing of the IVF on the 
 

 
         
 
         
 
         
 
         HEWITT V. SIOUX CITY BRICK AND TILE
 
         Page   2
 
         
 
         
 
         left."  (Claimant's Exhibit C)  Neither Dr. Schwietert's nor 
 
         Dr. Knuth's treatment alleviated claimant's neck problems.
 
         
 
              Claimant eventually sought treatment from William P. 
 
         Isgreen, M.D.  Dr. Isgreen stated in a letter following his 
 
         examination of claimant on January 7, 1983:
 
         
 
                 In summary, I think he has cervical spondylosis, which 
 
              has been aggravated, symptomwise, by his. injury.  I don't 
 
              think that it has been changed significantly, however, 
 
              x-raywise by his alleged injury.  I would tend to do an EMG 
 
              on the man and cervical myelogram.
 
         
 
         (Joint Ex. 6, pages 2-3)
 
         
 
              Claimant also was examined by Gonzalo M. Sanchez, M.D., on 
 
         April 22, 1983.  Dr. Sanchez indicated in his report of this 
 
         examination that claimant had evidence of mild C7 radiculopathy 
 
         on the left and some changes of the C5-6 level.  He could not 
 
         ascertain whether these changes were due to degenerative 
 
         processes or due to trauma.  He recommended a myelogram be 
 
         performed.
 
         
 
               A cervical myelogram was performed on October 4, 1983 which 
 
         showed a defect at C5-6.
 
         
 
               Exhibits 11, 13, 14 and 15 are copies of First Report of 
 
         Injury.  These reports reveal that claimant has sustained 
 
         injuries to his neck on four prior occasions.  There is no 
 
         indication in any of these reports that claimant has missed any 
 
         work as a result of his neck injuries.
 
         
 
               At the arbitration hearing Dr. Isgreen testified that at 
 
         the time of the 1983 examination claimant gave no indication of 
 
         any injuries, trivial or serious, previously.
 
         
 
               Dr. Sanchez states the following in a letter to defense 
 
         counsel concerning claimant's medical history and subsequent 
 
         disability:
 
         
 
                 In answer to your questions, the additional medical 
 
              history provided in your letter indicates that certainly 
 
              some incidents were omitted in the past by the patient.  In 
 
              reviewing the individual alleged injuries, it appears to be 
 
              that at no time did the patient describe symptoms radiating 
 
              into the distal upper extremity, indicative of nerve root 
 
              irritation.
 
         
 
         
 
         
 
              I do not know if the patients complaints for which he was 
 
              referred to me in 1983 and the findings of a C7 
 
              radiculopathy on the left, could be attributed to the May 
 
              24, 1982 incident alone.
 
         
 
         (Joint Ex. 9)
 
         
 
              Dr. Isgreen opined the following in response to 
 
         cross-examination by claimant's attorney:
 

 
         
 
         
 
         
 
         HEWITT V. SIOUX CITY BRICK AND TILE
 
         Page   3
 
         
 
         
 
         
 
              Q.  Let me carry this one step further.  Doctor, assuming 
 
              that the patient of -- such as Mr. Hewitt, had a trauma and 
 
              had some significant -- number of traumas prior to the most 
 
              recent trauma and had gotten better, his problem had 
 
              resolved itself after each of the previous traumas, but 
 
              after the last trauma had not resolved itself, would be in 
 
              any way significant to you?
 
         
 
              A.  Well, again, you are talking about two things.  You are 
 
              talking about resolution.  Obviously, you are not talking 
 
              about structural resolution; you are talking about 
 
              symptomatic resolution, so that structurally nothing has 
 
              been resolved, structurally things are the same.  We all 
 
              have aches and pains that come and go.  We all do things to 
 
              ourselves that provoke difficulties, sometimes for a 
 
              prolonged period of time.  In Mr. Hewitt's case, there are 
 
              other liabilities there.  Smoking is a liability in anybody 
 
              with neck or back disease.  Weight is a liability.  
 
              Inactivity is a liability.  So that I think that there -- 
 
              there are multiple factors in this process of aging, this 
 
              degenerative process; trauma, however, is not felt to be a 
 
              significant part.
 
         
 
         (Transcript, pp. 72-73)
 
         
 
              Dr. Isgreen opines on redirect that he would not recommend 
 
         surgery for claimant's neck problems.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law are appropriate to the issues and 
 
         evidence.
 
         
 
                                     ANALYSIS
 
         
 
              Contrary to claimant's argument, claimant has failed to 
 
         establish by the greater weight of evidence that his injury on 
 
         May 24, 1982 resulted in any disability.
 
         
 
         
 
         
 
              The medical record establishes that claimant has cervical 
 
         spondylosis and a defect at C5-6.  Dr. Isgreen opines that the 
 
         injury on May 24, 1982 did not play a significant part in causing 
 
         claimant's present disability.  Dr. Sanchez had stated that in 
 
         his examination report the fact that the C5-6 defect is limited 
 
         to one space suggests that that defect is related mostly to 
 
         trauma. (See Cl. Ex. D, p. 2)  However, Dr. Sanchez retracted 
 
         this opinion when he learned of claimant's history of previous 
 
         neck injuries. (See Joint Exhibit 9)
 
         
 
              Claimant does not meet his burden in proving a causal 
 
         connection because he produces some evidence which,might indicate 
 
         a causal connection of the injury to the disability while at the 
 
         same time the greater weight of evidence indicates otherwise.  
 
         Claimant's failure to fully inform his treating physicians of his 
 
         prior history of neck problems only makes claimant's case 
 
         weaker.
 

 
         
 
         
 
         
 
         HEWITT V. SIOUX CITY BRICK AND TILE
 
         Page   4
 
         
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant has a work history of manual labor jobs and 
 
         sales jobs.
 
         
 
              2.  Claimant started working for Sioux City Brick and Tile 
 
         Company in about March 1978 and separated from this employer in 
 
         1982.
 
         
 
              3.  Claimant injured his neck or shoulder on more than one 
 
         occasion prior to May 24, 1982.
 
         
 
              4.  Claimant has cervical spondylosis and a defect at C5-6.
 
         
 
              5.  On May 24, 1982, claimant hit his head on a car door 
 
         while entering a vehicle.
 
         
 
              6.  Claimant's injury of May 24, 1982 resulted in no lost 
 
         time.
 
         
 
              7.  Claimant's injury of May 24, 1982 resulted in no 
 
         permanent impairment.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant failed to establish by a preponderance of the 
 
         evidence that his injury of May 24, 1982 resulted in any 
 
         temporary total, healing period or permanent partial disability.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
         
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That defendants pay the costs of the arbitration proceeding 
 
         and claimant pay the costs of the appeal including the 
 
         transcription of the hearing proceeding.
 
         
 
         
 
              Signed and filed this 13th day of August, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. William L. Miller
 
         Attorney at Law
 
         509 Ninth Street
 

 
         
 
         
 
         
 
         HEWITT V. SIOUX CITY BRICK AND TILE
 
         Page   5
 
         
 
         
 
         P.O. Box 3107
 
         Sioux City, Iowa 51102
 
         
 
         Mr. John R. Timmermier 
 
         Mr. Craig G. Ongley
 
         Attorneys at Law
 
         1800 First National Center 
 
         16th & Dodge Streets 
 
         Omaha, Nebraska 68102
 
 
 
 
 
 
 
 
                        
 
                        
 
                                                   1108.5 - 1402.40
 
                                                   Filed August 13, 1987
 
                                                   DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         HENRY L. HEWITT,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                   File No. 704533
 
         
 
         SIOUX CITY BRICK AND TILE,
 
                                                     A P P E A L
 
         
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         
 
         1108.5 - 1402.40
 
         
 
              Claimant sustained no temporary total, healing period or 
 
         permanent partial disability as a result of his work injury.  
 
         Medical testimony revealed that claimant had preexisting cervical 
 
         spondylosis.  Claimant failed to fully inform his treating 
 
         physicians of his prior history of neck problems.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         WANDA KEBERNIK,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 704973
 
         THATCHER PLASTIC PACKAGING,
 
         
 
              Employer,
 
         
 
         and
 
                                                      R E V I E W -
 
         IDEAL MUTUAL INSURANCE CO.,
 
                                                   R E O P E N I N G
 
         CONTINENTAL INSURANCE CO.,
 
                                                     D E C I S I O N
 
         and
 
         
 
         U.S. INSURANCE COMPANY,
 
         
 
              Insurance Carriers,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening brought by Wanda 
 
         Kebernik, claimant, against Thatcher Plastic Packaging, employer, 
 
         Ideal Mutual Insurance Company, Continental Insurance Company, 
 
         and U.S. Insurance Company, insurance carriers, and the Second 
 
         Injury Fund of Iowa, defendants, for benefits as the result of an 
 
         alleged injury to the left thumb, hand, wrist and arm on October 
 
         4, 1980, and another alleged injury to the right hand, wrist and 
 
         arm on June 4, 1982.  A memorandum of agreement for the injury of 
 
         October 4, 1980, was filed on December 11, 1980.  A memorandum of 
 
         agreement for the injury of June 4, 1982, was filed on June 25, 
 
         1982.
 
         
 
              A hearing was held in Davenport, Iowa, on November 21, 1988, 
 
         and the case was fully submitted at the close of the hearing.  
 
         The record consists of the testimony of Keith Herrick, former 
 
         director of industrial relations, Wanda Kebernik, claimant, 
 
         Claimant's Exhibits 1, 2a, 2b, 2c, 2d, 3 and 5, and Defendants' 
 
         exhibits A through G.  Both parties ordered copies of the 
 
         transcript and the Second Injury Fund of Iowa provided a copy of 
 
         the transcript to the industrial commissioner's office.  Attorney 
 
         for the Second Injury Fund of Iowa submitted an excellent brief.  
 
         No brief was received from claimant's counsel.
 
         
 
        
 
         
 

 
         
 
         
 
         
 
         KEBERNIK V. THATCHER PLASTICS
 
         PAGE   2
 
         
 
                   
 
                                PRELIMINARY MATTER
 
              
 
              Immediately before the hearing commenced, claimant and 
 
         various defendants, at the suggestion of the hearing deputy 
 
         discussed settlement.  As a result of these settlement 
 
         discussions, defendant, employer, Thatcher Plastic Packaging and 
 
         the three insurance companies, Ideal Mutual Insurance Company, 
 
         Continental Insurance Company and U.S. Insurance Company, entered 
 
         into an agreement for settlement.  The settlement received 
 
         preliminary telephone approval from the industrial commissioner 
 
         and the employer and the insurance carriers were thus eliminated 
 
         from the case.  Thereafter, the case of Wanda Kebernik, claimant 
 
         against Second Injury Fund of Iowa, defendant, then proceeded to 
 
         hearing.
 
         
 
                                   STIPULATIONS
 
         
 
              Claimant and Second Injury Fund of Iowa stipulated to the 
 
         following matters.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of both alleged injuries.
 
         
 
              That the rate of compensation to which the employee was 
 
         entitled on October 4, 1980, was $187.42 per week and the rate of 
 
         compensation to which the employee was entitled on June 4, 1982, 
 
         was $207.54 per week.
 
         
 
              That medical expenses, credits and bifurcated claims were 
 
         not issues between claimant and the Second Injury Fund of Iowa.
 
         
 
                                      ISSUES
 
         
 
              Claimant and Second Injury Fund of Iowa submitted the 
 
         following issues for determination at the time of the hearing.
 
         
 
              Whether claimant sustained an injury on October 4, 1980, and 
 
         again on June 4, 1982, which arose out of and in the course of 
 
         employment with employer.
 
         
 
              Whether either injury was the cause of permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits for either injury, and if so, the nature and extent of 
 
         benefits; to include whether claimant is entitled to benefits as 
 
         an odd-lot employee.
 
         
 
              Whether the Second Injury Fund of Iowa is liable for any 
 
         benefits to claimant, and if so, the extent of that liability.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of the evidence most pertinent to 
 
         this decision.
 
         
 
              Keith Herrick, a retired employee of employer, testified 
 
         that he worked for employer for 30 years.  He was director of 
 
         industrial relations at the time of both alleged injuries.  He 
 
         testified from claimant's personal file.  Herrick related that 
 
         claimant started to work for employer on December 1, 1952, on 
 

 
         
 
         
 
         
 
         KEBERNIK V. THATCHER PLASTICS
 
         PAGE   3
 
         
 
         
 
         what was then called the utility job.  On March 1, 1954, she 
 
         became a manual trimmer, trimming and boxing cellulose seals as 
 
         they came out of both sides of a machine.  On August 20, 1954, 
 
         claimant became an automatic trimmer.  She continued to be an 
 
         automatic trimmer until her last day of work on May 26, 1983.  
 
         Her official termination date with employer was May 31, 1984, due 
 
         to certain provisions of the company's employee benefit plans.  
 
         Claimant's employment with employer therefore, spanned 
 
         approximately 32 years.
 
         
 
              Herrick verified that claimant used both her right hand and 
 
         her left hand and her fingers very quickly everyday in her work 
 
         for approximately 31 years.  He described her job as follows.  
 
         The automatic trimming machine produces, cuts and ejects plastic 
 
         seals from both sides of the machine.  Claimant gathered up these 
 
         cut plastic seals from both sides of the machine with her hands 
 
         and fingers and arranged them either in a box or in a pail on a 
 
         conveyor belt in front of her.  Herrick confirmed that claimant 
 
         reported tenosynovitis to her left hand and thumb on October 4, 
 
         1980, and that she reported inflammation of the tendons of her 
 
         right wrist on June 4, 1982, according to employer's records.  
 
         Herrick clarified that these dates are the dates that injuries 
 
         were reported.  Whether an injury actually occurred on those 
 
         dates or not he did not know.
 
         
 
              Herrick testified that claimant was released to return to 
 
         work on September 6, 1983, but the restrictions imposed by 
 
         William Catalona, M.D., were so severe that employer did not have 
 
         any work that claimant could do either in her old department or 
 
         on two other lines.  Claimant then followed the procedures of the 
 
         employee benefit plans and took leave of absence until she 
 
         retired for disability based on permanent and total disability 
 
         with a full pension.  Herrick explained that on August 19, 1983, 
 
         Dr. Catalona prohibited any repetitive use of the fingers, 
 
         forearms or shoulders and that claimant was not to lift more than 
 
         five pounds.
 
         
 
              Claimant testified that she was born in East Germany on 
 
         April 4, 1925.  She migrated to West Germany and from there to 
 
         the United States in 1952.  She stated that she accomplished 
 
         approximately an eighth grade education in Germany.  She learned 
 
         to speak English by speaking with people at work.  In Germany, 
 
         she performed farm work which she described as much more 
 
         primitive than the farming methods in the United States.  She and 
 
         her husband, Walter, performed farm labor for relatives for a few 
 
         months after they arrived in the United States in 1952.  Claimant 
 
         then began work for employer on December 1, 1952.  This 
 
         employment was terminated on May 26, 1983, and her official 
 
         retirement date was May 31, 1984.
 
         
 
              Claimant testified that her hand problems began in 1978 or 
 
         1979 slowly in both hands and forearms and they gradually became 
 
         worse.  She stated that the doctor told her not to do repetitive 
 
         work.
 
         
 
              Claimant said that she was told that she had carpal tunnel 
 
         and tendonitis of her left hand for which she received surgery.  
 
         She then received a second surgery on the left hand because her 
 
         thumb and fingers got stiff.  Dr. Catalona rated the impairment 
 

 
         
 
         
 
         
 
         KEBERNIK V. THATCHER PLASTICS
 
         PAGE   4
 
         
 
         
 
         to her left hand at 50 percent.  Claimant related that her right 
 
         hand then became bad and she had carpal tunnel surgery on the 
 
         right hand.  Dr. Catalona rated the permanent impairment of the 
 
         right hand at 20 percent.  Claimant testified that Dr. Catalona 
 
         then increased his rating on the right hand to 50 percent because 
 
         fluid built-up in her right hand.  She demonstrated that her 
 
         right forearm was larger than her left forearm.  Dr. Catalona 
 
         sent her to see William Blair, M.D., an orthopedic surgeon at the 
 
         University of Iowa Hospitals and Clinics.  He cast it twice, but 
 
         it is still swollen.  Claimant said that she tried to return to 
 
         work, but her hands were weak and she could not lift the boxes 
 
         which weigh between 20 and 50 pounds.
 
         
 
              Claimant testified that she was examined by Dr. Blair and 
 
         Dr. Catalona for social security disability benefits.  She added 
 
         that she qualified for, has been awarded and is receiving social 
 
         security disability benefits.
 
         
 
              Claimant related that her right hand is primarily her 
 
         dominant hand.  She said she has no blood circulation in her 
 
         hands and cannot lift anything.  Claimant testified that she 
 
         cannot vacuum because she has no strength in her hands and they 
 
         ache all of the time.  She cannot peel potatoes or wash her hair.  
 
         If she washes dishes, she breaks more than she washes.  If she 
 
         cooks, she drops things.  She doesn't wear seat belts because she 
 
         cannot get out of them.  Twice she was locked in her car in 
 
         parking lots and she needed assistance to get out of her car 
 
         because she could not get out of the seat belt.  Claimant said 
 
         she is nervous, drops things and eats more.  She is frustrated 
 
         and she cries a lot.  She can fold clothes, but she cannot iron 
 
         because she cannot push down on the iron.  If she does, her arm 
 
         swells up.  She is not getting better; she is getting worse as 
 
         she gets older.
 
         
 
              Claimant said she is now 63,years old.  When she terminated 
 
         her employment in May of 1983, she was age 58 going on age 59.  
 
         Claimant testified that she applied for jobs three times but 
 
         could not do them.  Claimant said that she could not perform 
 
         factory work at Heinz, U.S.A.. She could not be a maid at the 
 
         Muskie Hotel because she could not run the vacuum or change the 
 
         fitted sheets on the beds.  She does not know of any work that 
 
         she can do.  She is getting social security disability benefits 
 
         and she is getting retirement disability benefits from her 
 
         employer's income disability carrier.  She applied for 
 
         unemployment compensation benefits, but was declined because she 
 
         was medically incapable of performing the work her employer had 
 
         offered her.
 
         
 
              The following is a summary of the medical evidence.  William 
 
         Catalona, M.D., an orthopedic surgeon, was the primary treating 
 
         physician and surgeon.  He performed all three surgeries.  He 
 
         referred claimant to Bruce L. Sprague, M.D., an orthopedic 
 
         surgeon who specializes in hand surgery, for an examination, 
 
         evaluation and consultation (Exhibit C).  On June 23, 1982, Dr. 
 
         Sprague discussed claimant's problems in both upper extremities 
 
         and rated the left hand with a 2 percent permanent impairment 
 
         (Ex. C, page 2).
 
         
 
              Dr. Catalona also referred claimant to William Blair, M.D., 
 

 
         
 
         
 
         
 
         KEBERNIK V. THATCHER PLASTICS
 
         PAGE   5
 
         
 
         
 
         of the orthopedic department at the University of Iowa Hospitals 
 
         and Clinics (Def. Ex. E.).  He wrote a letter of introduction 
 
         dated March 23, 1983, in which Dr. Catalona said he had been 
 
         treating claimant for the past two years for intermittent 
 
         episodes of pain in both forearms, wrists and hands which she 
 
         relates to repetitive use of her forearms, wrists and hands at 
 
         work (Ex. E, p. 9).  Dr. Blair and Dr. Lowry (full name unknown) 
 
         saw claimant on April 12, 1983.  The first office note says that 
 
         claimant was referred for bilateral upper extremity pain.  Their 
 
         impression was bilateral forearm pain, etiology unknown (Ex. E, 
 
         pp. 10, 13 & 16).  Dr. Blair found an inflammatory process about 
 
         a nerve at the left elbow and the tendons of the right wrist and 
 
         forearm probably secondary to relative overuse.  He recommended a 
 
         ten pound weight restriction and advised against rapidly 
 
         repetitive activities (Ex. E, p. 15).
 
         
 
              Claimant was examined and evaluated independently for 
 
         employer by Leland G. Hawkins, M.D., an orthopedic surgeon (Ex. 
 
         D).  Dr. Hawkins diagnosed chronic tenosynovitis of the left and 
 
         right hand including carpal tunnel flexor tendons and extensor 
 
         tendons (Ex. D, p. 1).  He ordered EMG studies and said that 
 
         claimant had normal median and ulnar nerves on both the right and 
 
         left hands.  She had full range of motion of the fingers.  He 
 
         rated claimant with a permanent impairment of 3 percent of each 
 
         hand due to stress intolerance to repeated activities (Ex. D, p. 
 
         12).
 
         
 
              Claimant was also seen by Raymond W. Dasso, M.D., an 
 
         orthopedic surgeon for an evaluation (Ex. 2a).  Dr. Dasso 
 
         recorded that claimant first developed pain in her hands and 
 
         forearms in 1979.  He diagnosed carpal tunnel syndrome, 
 
         postoperative, bilateral with marked weakness of the flexors of 
 
         both hands and moderate weakness of the extensors of both hands.  
 
         He stated that claimant is markedly disabled on a permanent 
 
         basis.  He said her restrictions have been and continue to be no 
 
         lifting over five pounds and no repetitive use of either 
 
         forearms, wrists or hands.  He felt claimant was permanently and 
 
         totally disabled (Ex. 2b, pp. 5-8).
 
         
 
              The social security award certificate dated January 31, 
 
         1984, verifies that claimant was awarded social security 
 
         disability benefits (Ex. 3).  Also claimant has verified that she 
 
         has been granted permanent and total income disability benefits 
 
         from employers income disability carrier (Ex. 2d, pp. 127-132).  
 
         The letter from the attorney for the Second Injury Fund of Iowa 
 
         to Dr. Catalona dated January 8, 1985, and Dr. Catalona's reply 
 
         letter dated January 11, 1985, are published in their entirety 
 
         because the attorney's letter summarizes the evidence most 
 
         pertinent to,this decision and Dr. Catalona's reply letter is the 
 
         evidence upon which the decision in this case is based primarily 
 
         (Ex. G).
 
         
 
              The attorney for the Second injury Fund wrote to Dr. 
 
         Catalona as follows on January 8, 1985.
 
         
 
              I represent the Second Injury Fund of Iowa in the 
 
              above-referenced workers' compensation proceeding filed 
 
              on behalf of Wanda Kebernik.  I have been provided a 
 
              copy of your office notes on Mrs. Kebernik (9/30/80 
 

 
         
 
         
 
         
 
         KEBERNIK V. THATCHER PLASTICS
 
         PAGE   6
 
         
 
         
 
              through 10/24/83) as well as copies of correspondence 
 
              from you to various individuals and entities regarding 
 
              Mrs. Kebernik.
 
         
 
              These documents indicate that Mrs. Kebernik's initial 
 
              visit to you was for the purpose of evaluating the 
 
              paresthesia of both hands which she stated was of one 
 
              year duration and which she related to repetitive use 
 
              at work.  Your diagnosis on the initial visit was 
 
              bilateral carpal tunnel syndrome and de Quervain's 
 
              disease of the left hand.  Thereafter, Mrs. Kebernik 
 
              returned with various complaints and you performed 
 
              various operations.  As you indicated in your March 23, 
 
              1983, letter to Dr. William Blair, M.D., you had been 
 
              following Mrs. Kebernik for the past two years for 
 
              intermittent episodes of pain both forearms, wrists and 
 
              hands which she relates to repetitive use of her 
 
              forearms, wrists and hands at work."  In your letter 
 
              dated December 15, 1983, to James E. Shipman, Attorney, 
 
              you provided the following comments:
 
                                   * * *
 
         
 
              The [clinical notes] regarding Mrs. Kebernik's hands 
 
              start on 9/23/80 and continue in sequence as numbered.  
 
              Her symptoms are related to the effect of repetitive 
 
              use of her hands at work.  There is an individual 
 
              tolerance to repetitive motion by people.  Mrs. 
 
              Kebernik suffered chronic irritation and inflammation 
 
     
 
         
 
         
 
         
 
         
 
         KEBERNIK V. THATCHER PLASTICS
 
         PAGE   7
 
         
 
         
 
              of the wrist and finger flexor extensor tendons and 
 
              median and ulnar nerves in her hand.  I did the 
 
              following operations for her:  10/9/80-Decompression 
 
              median nerve in carpal tunnel and de Quervain's 
 
              stenosing tenosynovitis left hand; 
 
              4/l/81-Tendovaginotomy left thumb and small finger to 
 
              relieve triggering; 7/8/82-Decompression median nerve 
 
              in carpal tunnel and ulnar nerve in Guyon's canal right 
 
              wrist.
 
         
 
              As you can see, Mrs. Kebernik had a prolonged period of 
 
              discomfort and pain in both her forearms, wrists and 
 
              hands.  Persistence in working only aggravated her 
 
              condition.
 
         
 
                                   * * *
 
         
 
         There are also references in correspondence to "chronic 
 
         progressive flexor tendonitis left forearm and hand "and 
 
         occupational compression neuritis and tenosynovitis of her right 
 
         hand."
 
         
 
         Your office notes and correspondence present various questions 
 
         regarding this patient's history and medical problems.  Your 
 
         response to the following questions will be of assistance to our 
 
         evaluation of the above-referenced case.
 
         
 
                   1.  Would it be possible to fit under a broad 
 
              category (i.e. tendonitis, tenosynovitis, and others) 
 
              the condition which the patient suffered and, if so, 
 
              which one(s)?
 
         
 
                   2.  Would you agree that the bilateral carpal 
 
              tunnel syndrome you diagnosed on 9/23/80 developed 
 
              simultaneously?
 
         
 
                   3.  Would you agree that the bilateral problems 
 
              with the patient's fingers, wrists, hands and forearms 
 
              experienced subsequent to the 9/23/80 diagnosis was the 
 
              result of the patient's repetitive use of her hands at 
 
              work?
 
         
 
                   4.  Would you agree that the patient's bilateral 
 
              problems could be considered an overuse syndrome which 
 
              manifested itself on separate occasions when the 
 
              patient was subjected to repetitive work?
 
         
 
                   5.  Would you agree that no separate and distinct 
 
              injury or trauma was the cause of the patient's 
 
              bilateral condition?
 
         
 
         (Ex. G, pp. 1 & 2)
 
         
 
              Dr. Catalona replied to the attorney for the Second Injury 
 
         Fund on January 11, 1985 as follows:
 
         
 
              In reply to yours of January 8, 1985 regarding the 
 
              above:
 
         
 

 
         
 
         
 
         
 
         KEBERNIK V. THATCHER PLASTICS
 
         PAGE   8
 
         
 
         
 
              1)  I would classify the conditions which this patient 
 
              has suffered under the broad category of tendonitis and 
 
              tenosynovitis.
 
         
 
              2)  I agree that the bilateral carpal tunnel syndrome 
 
              developed simultaneously.
 
         
 
              3)  I agree that the bilateral problems with the 
 
              patient's fingers, wrists, hands and forearms 
 
              experienced subsequent to the 9/23/80 diagnosis was the 
 
              result of the patient's repetitive use of her hands at 
 
              work.
 
         
 
              4)  I agree the patient's bilateral problems can be 
 
              considered as an overuse syndrome manifesting itself on 
 
              occasions when the patient was subjected to repetitive 
 
              work.
 
         
 
              5) I agree no separate and distinct injury or trauma 
 
              was the cause of the patient's bilateral condition.
 
         
 
         (Ex. G, p. 4)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she is entitled to Second 
 
         Injury Fund benefits.
 
         
 
              Claimant testified that bilateral hand problems developed 
 
         simultaneously and first manifested themselves in 1978 or 1979 
 
         after some 26 years of repetitive use of both hands grasping 
 
         seals and arranging them in boxes every working day.  Herrick 
 
         corroborated that claimant performed repetitive work with her 
 
         hands and fingers simultaneously in her employment since March 1, 
 
         1954, when she became a manual trimmer.  Dr. Blair, Dr. Hawkins, 
 
         Dr. Dasso and Dr. Sprague all talked about and addressed 
 
         bilateral hand problems stemming from repetitive overuse in 
 
         claimant's activities at work.
 
         
 
              Dr. Catalona, the treating physician, testified 
 
         unequivocally that claimant suffered tendonitis and tenosynovitis 
 
         which he further described as carpal tunnel syndrome that 
 
         developed simultaneously and was caused by use of her hands at 
 
         work.  Dr. Blair further refined his opinion to state that even 
 
         though the bilateral problems manifested themselves on different 
 
         occasions, nevertheless, there was no separate and distinct 
 
         injury or trauma that caused claimants bilateral condition (Ex. 
 
         G, 4).
 
         
 
              In order to be entitled to benefits under Iowa Code section 
 
         85.64 from the Second Injury Fund of Iowa, the claimant must 
 
         first prove a permanent injury to a scheduled member and 
 
         secondly, prove a separate permanent injury to a second scheduled 
 
         member.  Lawyer and Higgs, Iowa Workers' Compensation--Law and 
 
         Practice, section 17-4, stresses that the employee must have a 
 
         loss to another member or organ. (emphasis supplied)  By footnote 
 
         one, the book points out that an 85.34(2)(s) injury is a single 
 
         incident and shall be compensated as such.  Manifestation of one 
 

 
         
 
         
 
         
 
         KEBERNIK V. THATCHER PLASTICS
 
         PAGE   9
 
         
 
         
 
         injury on two occasions does not satisfy that requirement for a 
 
         second loss.  McMurrin v. Quaker Oats Co., I Iowa Industrial 
 
         Commissioner Reports 222, (1981); Himschoot v. Montezuma 
 
         Manufacturing, file nos. 672778 & 738235, appeal decision April 
 
         15, 1988 (on judicial review).
 
         
 
              The facts of this case are quite similar to those two cases 
 
         because claimant developed what was described as tendonitis, 
 
         tenosynovitis and de Quervain's disease in both wrists.  Both of 
 
         these cases held that claimant did not have a prior loss as 
 
         contemplated by Iowa Code section 85.64.  The attorney for the 
 
         Second Injury Fund of Iowa pointed out the Himschoot case at the 
 
         hearing and in her brief.  In that case it was determined that 
 
         bilateral carpal tunnel syndrome was one injury when the symptoms 
 
         for both hands developed simultaneously even though treatment and 
 
         surgery occurred on different dates about a year apart.  
 
         Bilateral carpal tunnel syndrome that developed simultaneously in 
 
         both hands and wrists was held to be one injury even though two 
 
         separate reports of injury were filed, two claim files were 
 
         maintained in the industrial commissioner's office and two 
 
         separate surgeries were performed.  This case is like Himschoot, 
 
         in that, there were two separate first reports of injury, two 
 
         claim files were established in the office of the industrial 
 
         commissioner with separate file numbers and separate surgeries 
 
         were performed on each hand.  Also, like Himschoot, both alleged 
 
         injuries occurred prior to July 1, 1982, when the use of the 
 
         memorandum of agreement was in effect in the industrial 
 
         commissioner' office.  Like Himschoot, a separate memorandum of 
 
         agreement was filed by employer for each of the alleged injury 
 
         dates.
 
         
 
              A memorandum of agreement has, in other cases, been 
 
         determined to establish that claimant did receive an injury 
 
         arising out of and in the course of employment with employer.  
 
         Freeman v. Luppes Transport Company, Inc., 227 N.W.2d 143 (Iowa 
 
         1975).  Nevertheless, it was held in Himschoot that there were 
 
         not separate injuries as a matter of law.  The industrial 
 
         commissioner addressed this issue as follows in Himschoot:
 
         
 
                 Claimant argues that the separate memoranda of 
 
              agreement for injuries of April 27, 1981 and February 
 
              12, 1982 establish as a matter of law that there are 
 
              two separate injuries.  This argument is also not 
 
              persuasive.  A memorandum of agreement establishes an 
 
              employer-employee relationship and that the injury 
 
              arose out of and in the course of employment.  It does 
 
              not indicate what the injuries were or if any permanent 
 
              impairment resulted.  It does not establish any fact 
 
              relating to liability of the second injury fund.  In 
 
              this case, the second injury fund specifically did not 
 
              stipulate that there were two injuries that arose out 
 
              of and in the course of employment.  Claimant has not 
 
              proved by the greater weight of evidence that she 
 
              received two separate injuries and is not entitled to 
 
              benefits from the second injury fund.
 
         
 
         (Himschoot, file nos. 672778 & 738235, app. dec. April 15, 1988, 
 
         p. 4)
 
         
 

 
         
 
         
 
         
 
         KEBERNIK V. THATCHER PLASTICS
 
         PAGE  10
 
         
 
         
 
              What the industrial commissioner said in Himschoot applies 
 
         directly to this case.  In this case, like Himschoot, it should 
 
         be noted that bilateral carpal tunnel syndrome was diagnosed in 
 
         the beginning, well before the second surgery.
 
         
 
              Furthermore, the Second Injury Fund was not a party to 
 
         either memorandum of agreement and therefore, should not be bound 
 
         by either agreement.  Hickson v. W.A. Klinger Co., Thirty-fourth 
 
         Biennial Report of Industrial Commissioner 135 (1978).  Sometimes 
 
         a memorandum of agreement is an agreement signed by both parties, 
 
         but more frequently it is simply a unilateral act on the part of 
 
         employer or insurance carrier.  The Second Injury Fund should not 
 
         be bound by an agreement to which it was not a party or to an 
 
         action to which it did not concur.  In Hickson, the industrial 
 
         commissioner said, "Since the Second injury Fund was not a party 
 
         to the previous precedings, in that case the Second Injury Fund 
 
         should not be foreclosed from challenging the nature and extent 
 
         of claimant's disability."  In the Hickson case, an agreement as 
 
         to disability contained in an application for commutation was not 
 
         binding upon the fund and it was found that they should have an 
 
         opportunity to produce evidence as to the nature and extent of 
 
         claimant's disability.  By analogy then, in this case, the Second 
 
         Injury Fund should not be bound by the memorandums of agreement 
 
         filed by employer or insurance carrier and be foreclosed from 
 
         presenting evidence as to whether claimant did, in fact, sustain 
 
         separate injuries on the dates alleged.  Hickson, Thirty-fourth 
 
         Biennial Report of the Industrial Commissioner 135, 137.  
 
         McMurrin, Himschoot and this case are all Simbro types of cases.  
 
         They are governed by Iowa Code section 85.34(2)(s) because they 
 
         involve loss to both hands or arms caused by a single accident. 
 
         Simbro v. DeLongs Sportswear, 332 N.W.2d 886 (Iowa 1983).
 
         
 
              Therefore it is determined that claimant has not sustained 
 
         the burden of proof by a preponderance of the evidence that she 
 
         has sustained two separate injuries in order to trigger Second 
 
         Injury Fund liability under Iowa Code section 85.64.  Since it 
 
         has been determined that there is no Second Injury Fund liability 
 
         in this case, all other issues are then moot.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant was employed by employer from December 1, 1952 
 
         until May 26, 1983, and retired for disability from employer on 
 
         May 31, 1984.
 
         
 
              That claimant's work for 31 years involved repetitive use of 
 
         both hands and all of her fingers gathering seals from either end 
 
         of a trimming machine and arranging them in a box or pail on an 
 
         assembly line.
 
         
 
              That in approximately 1978 or 1979 claimant developed 
 
         bilateral pain in both hands and wrists simultaneously which was 
 
         described as tenosynovitis, tendonitis and carpal tunnel 
 
         syndrome.
 
         
 
              That claimant's testimony  and Dr. Catalona's testimony both 
 

 
         
 
         
 
         
 
         KEBERNIK V. THATCHER PLASTICS
 
         PAGE  11
 
         
 
         
 
         verified that the injury to both upper extremities developed 
 
         bilaterally simultaneously.
 
         
 
              That Dr. Catalona, the treating physician, made a 
 
         professional statement that even though the condition manifested 
 
         itself on different occasions, when claimant was subjected to 
 
         repetitive work, nevertheless, no separate or distinct injury or 
 
         trauma was the cause of claimant's bilateral condition.
 
         
 
              That Dr. Sprague, Dr. Blair, Dr. Dasso and Dr. Hawkins all 
 
         described and discussed simultaneous development of bilateral 
 
         carpal tunnel syndrome in general terms.
 
         
 
              That claimant did not sustain separate injuries on October 
 
         4, 1980 and June 4, 1982.
 
                                
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained two separate 
 
         injuries as required by Iowa Code section 85.64, in order to 
 
         establish liability against the Second Injury Fund of Iowa.
 
         
 
              That all other possible issues in this case are then moot.
 
         
 

 
         
 
         
 
         
 
         KEBERNIK V. THATCHER PLASTICS
 
         PAGE  12
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That no benefits are owed by the Second Injury Fund of Iowa 
 
         to claimant.
 
         
 
              That so much of the costs of this case that pertain to the 
 
         action of claimant against the Second Injury Fund of Iowa, are 
 
         charged to claimant pursuant to Division of Industrial Services 
 
         Rule 343-4.33, except the cost of the transcript was ordered by 
 
         defendant Second Injury of Iowa.
 
         
 
              Signed and filed this 22nd day of December, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Robert DeKock
 
         Attorney at Law
 
         103 Hotel Muscatine
 
         101 W. Mississippi Dr.
 
         Muscatine, Iowa 52761
 
         
 
         Ms. Shirley Ann Steffe
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 
         Des Moines, Iowa 56319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              3201; 3202; 3203
 
                                              Filed December 22, 1988
 
                                              WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WANDA KEBERNIK,
 
         
 
              Claimant,
 
                                                   File No.  704973
 
         vs.
 
         
 
         THATCHER PLASTIC PACKAGING,                R E V I E W -
 
         
 
              Employer,                           R E O P E N I N G
 
         
 
         and                                       D E C I S I O N
 
         
 
         IDEAL MUTUAL INSURANCE CO.,
 
         
 
         CONTINENTAL INSURANCE CO.,
 
         
 
         and
 
         
 
         U.S. INSURANCE COMPANY,
 
         
 
              Insurance Carriers,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         
 
         3201; 3202; 3203
 
         
 
              It was determined that claimant was not entitled to Second 
 
         Injury Fund benefits under Iowa Code section 85.64 for bilateral 
 
         carpal tunnel which developed simultaneously even though (1) two 
 
         separate injuries were reported, (2) two separate claim files 
 
         with separate file numbers were opened, (3) two separate 
 
         memorandums of agreement were flied for two different injury 
 
         dates and (4) separate surgeries were performed on two different 
 
         dates.
 
         
 
              The memorandas of agreement which normally concede (1) 
 
         employer and employee relationship and (2) that an injury 
 
         occurred on that date did not bind the Second Injury Fund of Iowa 
 
         which was not a party to the memorandums of agreement.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAUL PRUITT,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 619638/705526
 
            IOWA POWER AND LIGHT COMPANY, :
 
                                          :          A P P E A L
 
                 Employer,                :
 
                 Self-Insured,            :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Second Injury Fund appeals and claimant cross-appeals 
 
            from a review-reopening decision awarding claimant benefits 
 
            from the Second Injury Fund.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            review-reopening hearing; claimant's exhibit 1; and 
 
            defendant's exhibits A through C.  Second Injury Fund and 
 
            claimant filed briefs on appeal.
 
            
 
                                      issues
 
            
 
                 The issues on appeal are whether claimant is entitled 
 
            to benefits from Second Injury Fund and if Second Injury 
 
            Fund benefits accrue interest.
 
            
 
                              review of the evidence
 
            
 
                 The review-reopening decision filed April 17, 1989 ade
 
            quately and accurately reflects the pertinent evidence and 
 
            it will not be reiterated herein.
 
            
 
                                  applicable law
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and evidence.  The following 
 
            additional citation is also appropriate.
 
            
 
                 The Iowa Supreme Court most recently discussed the 
 
            liability of the Second Injury Fund in Second Injury Fund v. 
 
            Neelans, 436 N.W.2d 355 (Iowa 1989).  The court stated at 
 
            358:
 
            
 
                    The language of the second injury act supports 
 
                 this conclusion by providing that "[t]he employer 
 
                 shall be liable only for the degree of disability 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 which would have resulted from the latter injury 
 
                 if there had been no pre-existing disability."  To 
 
                 hold otherwise would in effect penalize the 
 
                 employer who hired a person with a prior injury.  
 
                 The purpose of Second Injury Fund statutes was to 
 
                 provide a more favorable climate for the 
 
                 employment of persons injured through service in 
 
                 World War II.  Jackwig, The Second Injury Fund of 
 
                 Iowa:  How Complex Can a Simple Concept Become?, 
 
                 28 Drake L.Rev. 889, 890-91 (1979).  Similar 
 
                 considerations still weigh heavily in our 
 
                 interpretation of the second injury act.  See, 
 
                 e.g., Anderson v. Second Injury Fund, 262 N.W.2d 
 
                 789, 791-92 (Iowa 1978) (purpose to encourage 
 
                 employers to hire handicapped workers).
 
            
 
                    In the present case, there seems to be no 
 
                 argument about the extent of the second injury 
 
                 standing alone: it is a scheduled injury which 
 
                 does not extend to the body as a whole, even 
 
                 though the cumulative effect of this injury and 
 
                 the prior injuries was to cause such disability.
 
            
 
                    In this case, if it had not been for the prior 
 
                 injuries sustained by Neelans, the employer would 
 
                 be liable only to the extent provided by the 
 
                 schedule for a leg injury.  To hold that the 
 
                 present employer would be liable for payment of a 
 
                 greater amount as a result of the preexisting 
 
                 injuries would be inconsistent with the purpose 
 
                 and language of the statute.
 
            
 
                    The industrial commissioner correctly ruled 
 
                 that the Second Injury Fund should be responsible 
 
                 for the industrial disability, less the total of 
 
                 the scheduled injuries, or a total of 262 weeks.  
 
                 Accordingly, we reverse and remand for 
 
                 reinstatement of the order by the commissioner.
 
            
 
                                     analysis
 
            
 
                 Generally, the issues raised in this appeal have been 
 
            addressed in prior decisions.  The language from the prior 
 
            decisions will be quoted as appropriate.  The reasoning in 
 
            those prior decisions is applicable in the instant case.
 
            
 
                 The Second Injury Fund argues that claimant must be 
 
            "handicapped" and have an impairment greater than 15 
 
            percent.
 
            
 
                    The Second Injury Fund raises another argument 
 
                 in its appeal brief which, although not 
 
                 specifically addressed in Neelans, can be disposed 
 
                 of here.  The Second Injury Fund argues that it is 
 
                 not liable because claimant does not have a 
 
                 qualifying disability because the injuries were 
 
                 not "substantial."  In Neelans, the claimant had a 
 
                 ten percent impairment to the hand and a twenty 
 
                 percent impairment to the leg.  The court found 
 
                 the Second Injury Fund liable.  Second Injury Fund 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 attempts to take the facts of prior supreme court 
 
                 cases and make law applicable to all cases.  By 
 
                 doing so the Second Injury Fund attempts to modify 
 
                 the clear language of the statute.  There is 
 
                 simply not good justification to require, as the 
 
                 Second Injury Fund urges, that a claimant's 
 
                 disability be "significant" or "substantial" in 
 
                 order for the Second Injury Fund to incur 
 
                 liability.  This is particularly true in light of 
 
                 the Neelans case in which the Second Injury Fund 
 
                 was found to be liable in a case involving what 
 
                 could be characterized as nonsignificant or 
 
                 nonsubstantial disabilities, namely scheduled 
 
                 member disabilities of ten and twenty percent.  
 
                 See also McCoy v. Donaldson Company Inc., (Appeal 
 
                 Decision, April 28, 1989).
 
            
 
            Mockenhaupt v. George A. Hormel & Company, (Appeal Decision, 
 
            December 29, 1989).
 
            
 
                 Second Injury Fund next argues that it has no liability 
 
            because the injuries occurred while working for the same 
 
            employer.  There is no statute nor case law to support his 
 
            position.  Also, in Mockenhaupt, claimant was awarded 
 
            benefits when the injuries occurred while working for the 
 
            same employer.
 
            
 
                 Second Injury Fund's next argument that an impairment 
 
            rating must be established prior to the second injury.  The 
 
            Second Injury Fund has failed to cite any statute or other 
 
            legal authority for such a holding.  There is no requirement 
 
            that an impairment rating be established prior to the second 
 
            injury.  All that is necessary is that the first injury 
 
            resulted in disability.
 
            
 
                 Second Injury Fund's next argument that the disability 
 
            should be apportioned was rejected in Neelans.
 
            
 
                 Second Injury Fund's last argument is that claimant has 
 
            suffered no industrial disability because claimant suffered 
 
            no loss of earnings.
 
            
 
                    The Second Injury Fund's third issue on appeal 
 
                 concerns the extent of claimant's industrial 
 
                 disability.  In this regard, the analysis of the 
 
                 deputy is adopted.  The deputy properly considered 
 
                 all of the factors involved in determining 
 
                 industrial disability and the determination of 35 
 
                 percent industrial disability is approved.  Again, 
 
                 the Second Injury Fund focuses on one factor, 
 
                 claimant's earnings after the injury, to the 
 
                 exclusion of the other factors that determine 
 
                 industrial disability.
 
            
 
            Weiland v. Floyd Swanson, (Appeal Decision, December 29, 
 
            1989).  In the instant case the deputy properly considered 
 
            all of the factors involved in determining industrial 
 
            disability and the determination of 25 percent industrial 
 
            disability is approved.  Second Injury Fund liability is 59 
 
            weeks.  (25% x 500) - 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            [(15% x 220) + (15% x 220)]
 
            
 
                 Claimant argues on cross-appeal that funds due from the 
 
            Second Injury Fund should accrue interest.  That issue was 
 
            resolved in Braden v. Big "W" Welding Service, (Appeal 
 
            Decision, October 28, 1988) and affirmed in Mockenhaupt, 
 
            (Appeal Decision), wherein it was stated:
 
            
 
                    The Second Injury Fund correctly notes that it 
 
                 is not liable for interest on unpaid compensation 
 
                 benefits.  See Braden v. Big "W" Welding Service, 
 
                 (Appeal Decision, October 28, 1988).  An employer 
 
                 may be ordered to pay interest on unpaid 
 
                 compensation pursuant to Iowa Code section 85.30.  
 
                 Sections 85.63 through 85.69 are titled "Second 
 
                 Injury Compensation Act."  Those sections do not 
 
                 specifically authorize interest on unpaid 
 
                 compensation from the Second Injury Fund.
 
            
 
                    In addition, the Second Injury Fund stands in a 
 
                 position different from an employer in a workers' 
 
                 compensation case.  An employer has knowledge of 
 
                 the injury fairly soon after it occurs, whereas 
 
                 the Second Injury Fund may not know of the 
 
                 claimant's injury until a substantial period of 
 
                 time has elapsed.  The employer is in a position 
 
                 to investigate the injury and ascertain, at an 
 
                 early point in time, the compensability of the 
 
                 injury.  The Second Injury Fund is not able to con
 
                 duct such an investigation.  An employer has some 
 
                 degree of control over the length of time the case 
 
                 takes to be resolved, whereas the Second Injury 
 
                 Fund has less control over the proceedings.  
 
                 Section 85.66 of the Code states that money from 
 
                 the Second Injury Fund cannot be disbursed except 
 
                 upon written order of the industrial commissioner.  
 
                 Thus, whereas an employer has the capacity to 
 
                 settle a claim before a contested case proceeding 
 
                 is instituted, the Second Injury Fund is not able 
 
                 to resolve a case without involvement of the 
 
                 industrial commissioner after a petition has been 
 
                 filed.  This necessarily contemplates a time lapse 
 
                 which would unfairly subject the Second Injury 
 
                 Fund to interest on compensation it could not have 
 
                 paid earlier.  The Second Injury Fund will not be 
 
                 ordered to pay interest on the unpaid 
 
                 compensation, but will be required to pay any 
 
                 amounts past due in a lump sum.
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant sustained a permanent impairment of 15 
 
            percent to his right knee from a work injury on November 30, 
 
            1979 and a permanent impairment of 15 percent to his left 
 
            knee from a work injury on May 24, 1982.
 
            
 
                 2.  After the injuries, up until the date of the 
 
            hearing, claimant has experienced chronic pain, swelling, 
 
            grittiness, grinding and grating in both of his knees.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 3.  Claimant's subjective symptoms are corroborated and 
 
            verified by the medical evidence presented by John Kelley, 
 
            M.D., the treating physician and Joshua Kimelman, D.O., the 
 
            evaluating physician.
 
            
 
                 4.  Claimant is to avoid climbing and squatting, but at 
 
            the same time his job requires him to squat in order to 
 
            splice cable and to climb ladders in order to get in and out 
 
            of manholes.
 
            
 
                 5.  Both Dr. Kelley and Dr. Kimelman expected 
 
            claimant's condition to become worse in the future.
 
            
 
                 6.  Claimant was born July 22, 1950 and was 31 years 
 
            old on May 24, 1982.
 
            
 
                 7.  Claimant has no special education other than high 
 
            school.
 
            
 
                 8.  Claimant has suffered no loss of wages due to the 
 
            cumulative affect of his work injuries.
 
            
 
                 9.  Claimant's employment for his current employer 
 
            began in 1971 and has consisted of manual labor.
 
            
 
                 10. Claimant's prior work experience includes being a 
 
            bartender and doing ward care work for disabled persons.
 
            
 
                 11. Claimant's cumulative loss of earning capacity as a 
 
            result of injuries on November 30, 1979 and May 24, 1982 is 
 
            25 percent.
 
            
 
                                conclusion of law
 
            
 
                 Claimant is entitled to 59 weeks of permanent partial 
 
            disability from Second Injury Fund.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That the Second Injury Fund pay to claimant fifty-nine 
 
            (59) weeks of permanent partial disability benefits at the 
 
            rate of two hundred eighty-six and 76/100 dollars ($286.76) 
 
            per week in the total amount of sixteen thousand nine 
 
            hundred eighteen and 24/100 dollars ($16,918.24) commencing 
 
            on April 18, 1983.
 
            
 
                 That this amount is to be paid in a lump sum.
 
            
 
                 That interest will not accrue pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That the costs of this action including the cost of the 
 
            transcription of the review-reopening hearing are charged to 
 
            the Second Injury Fund pursuant to Division of Industrial 
 
            Services Rule 343-4.33.
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 That the Second Injury Fund file claim activity reports 
 
            as requested by this agency pursuant to Division of 
 
            Industrial Services Rule 343-3.1.
 
            
 
                 
 
                 Signed and filed this ____ day of February, 1990.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                 DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Phil Vonderhaar
 
            Attorney at Law
 
            840 Fifth Ave.
 
            Des Moines, Iowa 50309
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Mr. Robert Wilson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-3200; 5-3800
 
            Filed February 28, 1990
 
            David E. Linquist
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAUL PRUITT,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 619638/705526
 
            IOWA POWER AND LIGHT COMPANY, :
 
                                          :          A P P E A L
 
                 Employer,                :
 
                 Self-Insured,            :        D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-3200
 
            Claimant's cumulative loss of earning capacity after second 
 
            enumerated scheduled member injury was 25 percent.  Various 
 
            Second Injury Fund arguments were rejected.  Claimant's two 
 
            work injuries resulted in 15 percent impairment to each leg.
 
            
 
            5-3800
 
            Second Injury Fund not liable for interest.