BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        HANS R. MINOR,
 
        
 
            Claimant,
 
        
 
        vs.                               File Nos 719614/686275
 
        
 
        SWIFT INDEPENDENT PACKING,             A P P E A L
 
        
 
            Employer,                        D E C I S O N
 
        
 
        and
 
        
 
        NATIONAL UNION FIRE,
 
        
 
            Insurance Carrier,
 
            Defendants
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals and defendants cross-appeal from an arbitration 
 
        and review-reopening decision denying permanent disability 
 
        benefits and medical benefits for a work injury of October 26, 
 
        1981 but awarding ten weeks of permanent partial disability from 
 
        a work injury of October 6, 1982
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration and review-reopening hearing and the exhibits listed 
 
        in the prehearing report except claimant's exhibit 3 The 
 
        admission of pages lA through lF of exhibit A which were excluded 
 
        by the deputy will be discussed below Both parties filed briefs 
 
        on appeal
 
        
 
                                      ISSUES
 
        
 
        The issues on appeal are whether the deputy properly excluded 
 
        certain evidence; whether the deputy erred in finding that there 
 
        was no causal connection between the work injury of October 26, 
 
        1981 to claimant's neck and shoulder and a permanent disability: 
 
        whether the deputy erred in finding that the work injury of 
 
        October 6, 1982 was a cause of two percent permanent partial 
 
        disability; and whether the deputy erred in finding that certain 
 
        medical expenses were not causally connected to a work injury and 
 
        claimant was not entitled to reimbursement o those expenses.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration and review-reopening decision adequately and 
 
        accurately reflects the pertinent evidence and it will not be 
 
        totally reiterated herein.
 
        
 
        MINOR v. SWIFT INDEPENDENT PACKING
 
        Page 2
 
        
 
        
 
        Claimant was employed by the defendant employer from February 
 
        1971 to October 1983 as a meat cutter. On October 26, 1981 
 
        claimant injured his neck and shoulder while at work when he fell 
 
        from a platform approximately one foot off the floor and landed 
 
        on his back and shoulder. The parties stipulated that this injury 
 

 
        
 
 
 
 
 
        arose out of and in the course of his employment. Claimant also 
 
        testified that he had lower back problems following a car 
 
        accident in 1970. He stated that his left shoulder and left side 
 
        of his jaw were injured in a boating accident in 1973.
 
        
 
        Claimant testified that in October 1982 he noticed both of his 
 
        hands going to sleep. This occurred during the time that he was 
 
        trimming neck bones using a wizard knife.
 
        
 
        Following claimant's fall at work on October 26, 1981 claimant 
 
        was eventually seen by Albert D. Blenderman, M.D., orthopedic 
 
        surgeon. Claimant returned to work on January 18, 1982. In 
 
        October 1982 when claimant developed pain and numbness in his 
 
        wrists he reported to the company doctor, Michael Jennings, M.D. 
 
        Dr. Jennings referred claimant to a neurologist, Dennis Nitz, 
 
        M.D., who in turn referred claimant to Alexander Kleider, M.D. 
 
        Dr. Kleider performed carpal tunnel surgical decompression on the 
 
        left wrist in November 1982 and on the right wrist in December 
 
        1982. In a letter dated May 2, 1984 Dr. Kleider wrote:
 
        
 
        I think it is quite reasonable to assume that his diagnosis of 
 
        left carpal tunnel syndrome for which he first consulted me on 
 
        November 4, 1982, was indeed related to his job. This is 
 
        certainly something we see quite frequently amongst packing house 
 
        workers.
 
        
 
        I- would be extremely surprised if there was any "residuals or 
 
        permanency [sic]." I should point out to you, however, that I 
 
        have not seen this man in a very long time.
 
        
 
        [Exhibit A, page 6(a)]
 
        
 
        Claimant's symptoms did not subside and he saw John J. Dougherty, 
 
        M.D. Dr. Dougherty had been the treating doctor when claimant had 
 
        his auto accident in 1970. An office note by Dr. Dougherty dated 
 
        February 21, 1985 stated:
 
        
 
        His grip is good. He's Sot some callouses on his hands, and his 
 
        hands are kind of dirty. Got a full range of motion of his 
 
        wrist....
 
        
 
        
 
        
 
        Some pain in the cervical spine radiating into the left shoulder, 
 
        questionable on one view if he
 
        
 
        MINOR v. SWIFT INDEPENDENT PACKING
 
        Page 3
 
        
 
        
 
        could have a little bit of narrowing of the C5-6 disc space, not 
 
        demonstrated on flexion and extension films.
 
        
 
        
 
        
 
        In conclusion, I'm not impressed [sic] with his shoulder. I'm not 
 
        impressed with his neck. I don't think he's entitled to any 
 
        disability. With reference to his hands, I previously stated he 
 
        might be entitled to 2% disability with reference to both hands. 
 
        His hands are dirty, had some callouses. He has been working with 
 
        his hands, and I'm not impressed with any significant 
 
        swelling.... I saw him first in May of 1983 with reference to 
 
        both hands and wrists. At that time, nothing was said about his 
 
        shoulders or neck. However, in February of 1984, he did complain 
 
        of a little bit of discomfort in the left shoulder with mild 
 
        discomfort along the medial border of the left scapula, but this 
 

 
        
 
 
 
 
 
        was first noted on 2-21-84.
 
        
 
        (Ex. A, pp. 4-5)
 
        
 
        In a letter dated February 26, 1985 Dr. Dougherty wrote:
 
        
 
        On reviewing my chart on this patient, we did have x-rays of his 
 
        cervical spine in 1970, did have some straightening of his 
 
        cervical spine at that time. As I mentioned he never said 
 
        anything about his shoulder until the last time I saw him, about 
 
        one year ago. Likewise, in reviewing the chart on the above 
 
        patient, I dictated a letter to you July 13, 1984, which in my 
 
        opinion [sic], he was entitled to no disability with reference to 
 
        his neck and shoulder, and may be entitled to about 2% with 
 
        reference to both hands. I would feel basically the same way. 
 
        Certainly, in reviewing all the material sent to me, nothing was 
 
        much mentioned about his shoulder and neck, although Dr. 
 
        Blenderman did see him December 3, 1981 with reference to his 
 
        neck and shoulder and hand. He said he fall at work on 10-26-81. 
 
        He was last seen at that time by Dr. Blenderman on 1-25. He had 
 
        been working since 1-18-82, and he dismissed him. I guess 
 
        basically I feel he's not entitled to any disability with 
 
        reference to his neck and shoulder girdle. With reference to his 
 
        hands, I do feel that after a carpal tunnel release, he would be 
 
        entitled to a little bit of disability with reference to his 
 
        hand, 1-2% of each upper extremity. I basically saw no swelling 
 
        in his hands, and I can't understand why he should have any 
 
        swelling in his hands. His
 
        
 
        MINOR v. SWIFT INDEPENDENT PACKING
 
        Page 4
 
        
 
        
 
        hands were also kind of dirty and had some callouses, so 
 
        obviously he's been doing something.
 
        
 
        [Ex. A, pp. 3(a-b)]
 
        
 
        Claimant also received treatment at the direction of Horst G. 
 
        Blume, M.D., a neurosurgeon, in 1985 and 1986. In a letter dated 
 
        April 1, 1986, Dr. Blume stated:
 
        
 
        This patient was first seen on December 9, 1985 with complaints 
 
        of neck pain which he described as the area the lower cervical 
 
        spine, which occurs two or three times a day lasting two or more 
 
        hours at a time. He also complained of some numbness in the left 
 
        shoulderblade [sic] especially when his head is in the flexed 
 
        position.
 
        
 
        He is also suffering from pain in both hands at the wrist area, 
 
        both at the volar and dorsal aspects which he described as being 
 
        constant....
 
        
 
        
 
        
 
        From the complete physical and neurological examination I came to 
 
        the conclusion that the patient is suffering from carpal tunnel 
 
        syndrome on the right side; status post carpal tunnel ligament 
 
        resection with remaining pain and sensory deficit. The patient is 
 
        also suffering from cervical ruptured disc with irritation and 
 
        compression of the lower cervical nerve roots either at the level 
 
        of C5/6 or C6/7. The only way to determine this is to do a 
 
        cervical myelogram with or without CT scan in order to determine 
 
        the extent of the cervical disc pathology.
 
        
 
        Both conditions, the carpal tunnel syndrome as well as the lower 
 

 
        
 
 
 
 
 
        cervical nerve root irritation and compression signs on the right 
 
        side are directly related to his injury in October, 1981, but the 
 
        carpal tunnel condition is due to the years of work at Swift's 
 
        Independent.
 
        
 
        
 
        It is my opinion within reasonable medical probability that the 
 
        permanent partial disability to each hand is 10%
 
        
 
        [Ex. A, pp. 2(a-b)]
 
        
 
        Part of Dr. Blume's April 1, 1986 letter was an itemized 
 
        statement for claimant. That statement for charges from December 
 
        9, 1985 through March 10, 1986 totalled $655 and included a $150
 
        
 
        MINOR v. SWIFT INDEPENDENT PACKING
 
        Page 5
 
        
 
        
 
        charge for an examination and evaluation; 10 charges for therapy 
 
        to the left cervical shoulder; and 8 charges for ultrasound to 
 
        the left cervical shoulder. Claimant was examined on June 12, 
 
        1987 by Joel T. Cotton, M.D. In a letter dated June 12, 1987 Dr. 
 
        Cotton wrote:
 
        
 
        This letter is in reference to Hans Minor, who was examined on 
 
        June 12, 1987, in reference to neck, left shoulder, and bilateral 
 
        hand symptoms....
 
        
 
        
 
        
 
        Clinical Impression: This patient's neurological examination at 
 
        this time is normal. With reference to his hands, he has normal 
 
        strength, normal sensation, and there is no atrophy of the distal 
 
        median innervated muscles of either hand. He has, in addition, no 
 
        tenderness over either median nerve at the wrist. There is, in my 
 
        opinion, no evidence of current neurological damage in the 
 
        distribution of either median nerve, and carpal tunnel syndrome 
 
        cannot be substantiated at this time, either active or any 
 
        residual of a previous carpal tunnel syndrome. In his upper 
 
        extremities, specifically, his hands, there is no neurological 
 
        impairment evident at this time; and he is thus, in my opinion, 
 
        without any disability from a neurological standpoint, with 
 
        reference to his hands. I am unable to state whether or not there 
 
        is some element of orthopedic involvement in the hands causing 
 
        his continued complaint of discomfort. His complaint of pain and 
 
        numbness, in my opinion, however, is not on a neurological basis; 
 
        and whatever previous carpal tunnel syndrome was present in the 
 
        past is no longer evident.
 
        
 
        Mr. Minor has, in addition, no evidence of a cervical 
 
        radiculopathy. He has, in addition, a full and unrestricted range 
 
        of motion of the neck, and movement of the neck is not 
 
        accompanied by any subjective apparent discomfort. at the time of 
 
        his examination. In the presence of an otherwise entirely normal 
 
        neurological examination, I find no evidence of neurological 
 
        impairment with reference to the neck and shoulder. He is without 
 
        any disability, in my opinion, from a neurological standpoint. I 
 
        would not see any reason to restrict this individual's physical 
 
        activity in any way. I would not anticipate any significant 
 
        additional medical attention will be necessary for the current 
 
        complaints that this man has of neck pain, shoulder pain, or 
 
        bilateral hand pain, numbness, and swelling. This individual 
 
        appears to have achieved a state of permanency, as his symptoms 
 
        are relatively unchanged for at least a period of one year or 
 
        more.
 

 
        
 
 
 
 
 
        [Ex. A, pp. l(a,c)]
 
        
 
        MINOR v. SWIFT INDEPENDENT PACKING
 
        Page 6
 
        
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration and review-reopening 
 
        decision are appropriate to the issues and evidence. In addition, 
 
        Iowa Code section 85.39 provides in relevant part:
 
        
 
        If an evaluation of permanent disability has been made by a 
 
        physician retained by the employer and the employee believes this 
 
        evaluation to be too low, the employee shall, upon application to 
 
        the commissioner and upon delivery of a copy of the application 
 
        to the employer and its insurance carrier, be reimbursed by the 
 
        employer and the reasonable fee for a subsequent examination by a 
 
        physician of the employee's own choice, and reasonably necessary 
 
        transportation expenses incurred for the examination. The 
 
        physician chosen by the employee has the right to confer with and 
 
        obtain from the employer-retained physician sufficient history of 
 
        the injury to make a proper examination.
 
        
 
                                      ANALYSIS
 
        
 
        The first matter to be resolved is whether the deputy properly 
 
        excluded certain evidence, namely a medical report authored by 
 
        Dr. Cotton (Ex. A, pp. 1A through 1F). The record in this matter 
 
        reveals the following. The pretrial in this matter was held June 
 
        16, 1987 and the hearing was scheduled for July 7, 1987. The 
 
        hearing assignment order dated June 18, 1987 indicated that 
 
        medical records would not be admitted as exhibits unless they 
 
        were timely served on opposing parties and that a list of 
 
        proposed exhibits should be served no later than fifteen days 
 
        prior to the date of hearing. The following exchange took place 
 
        at the hearing on July 7, 1987:
 
        
 
        THE COURT: Again ruling is reserved until time of decision.
 
        
 
        MR. PLAZA: Your Honor, could I briefly make a record on that 
 
        report?
 
        
 
        THE COURT: Sure.
 
        
 
        MR. PLAZA: I'm sorry to interrupt
 
        .
 
        MR. SMITH: It's my motion. Maybe I should make a motion first.
 
        
 
        MR. PLAZA: Okay. Sure.
 
        
 
        THE COURT: You dealt with it somewhat on your --Go ahead, Harry.
 
        
 
        MINOR v. SWIFT INDEPENDENT PACKING
 
        Page 7
 
        
 
        
 
        MR. SMITH: The only thing I say is that I have --I was placed in 
 
        exactly the same situation with Dr. Cotton's report as Mr. Plaza 
 
        was with the -- with the expert. I have the same time problems he 
 
        has. I think we're just as busy as his office. That's all I've 
 
        got to say.
 
        
 
        MR. PLAZA: I disagree [sic] that you were put in exactly the same 
 
        situation. It was true that the examination only took place very 
 
        recently. I wrote you on June 1st, 1987 telling you of the exam 
 

 
        
 
 
 
 
 
        that was set for June 8th of 1987. I got the report -- I can't 
 
        even think of the date. If the pretrial was held on the 16th, I 
 
        got the report on the 15th, and drove to Council Bluffs to Dr. 
 
        Cotton's office, picked it up, brought it back in and had it 
 
        delivered to your office prior to the pretrial. It was in your 
 
        office prior to the pretrial and available for review prior to 
 
        the pretrial. I think that's -- that's -- that's the thing I 
 
        guess I object to the most. I made an effort to try to get that 
 
        to you so you could -- you could say if you needed more time. 
 
        Geez, I need to depose Dr. Cotton. There's no deputy in the 
 
        world that would have set this thing down for trial and say, 
 
        "Harry, you've got to try the case." That's what I object to. I 
 
        made an effort to get that over to you in time for that pretrial. 
 
        You had the report. You knew he was seeing the man prior to the 
 
        pretrial, and I think that's a world of difference between the 
 
        two. That was the time for you to say No, I wasn't given -- 
 
        ready to go. I wasn't given enough time.
 
        
 
        MR. SMITH: I wasn't in town. I didn't get the report.
 
        
 
        MR. PLAZA: I understand. I did all I could to set it to you so 
 
        you had a chance to see it. I don't know what more I could do.
 
        
 
        (Transcript, pages 31-33)
 
        
 
        Division of Industrial Services Rule 343-4.13(86) provides:
 
        
 
        Method of service. Except as provided in 4.6 and 4.7, service of 
 
        all documents and papers to be served according to 4.12 and 4.18 
 
        or otherwise upon a party represented by an attorney shall be 
 
        made upon the attorney unless service upon the party is ordered 
 
        by the industrial commissioner. Service upon the attorney or 
 
        party shall be made by delivery of a copy to or mailing a copy to 
 
        the last known address of the attorney or party, or if no address 
 
        is known, by filing it with the division of industrial services. 
 
        Delivery of a copy within this rule means:
 
        
 
        MINOR v. SWIFT INDEPENDENT PACKING
 
        Page 8
 
        
 
        
 
        Handing it to the attorney or party; leaving it at the office of 
 
        the attorney or party's office or with the person in charge of 
 
        the office; or if there is no one in charge of the office, 
 
        leaving it in a conspicuous place in the office; or if the office 
 
        is closed or the person to be served has no office, leaving it at 
 
        the person's dwelling house, or usual place of abode with some 
 
        person of suitable age and discretion who is residing at the 
 
        dwelling or abode. Service by mail under this rule is complete 
 
        upon mailing. No documents or papers referred to in this rule 
 
        shall be served by the industrial commissioner. (Emphasis added.)
 
        
 
        Defendants' counsel's statement was that he delivered a copy of 
 
        Dr. Cotton's report to claimant's counsel's office the day before 
 
        the pretrial hearing. Claimant's counsel does not dispute that 
 
        the report was delivered as defendants' counsel stated but merely 
 
        asserts that he did not get the report because he was not in 
 
        town. It is reasonable to conclude that Dr. Cotton's report was 
 
        delivered within the meaning of rule 343-4.13. The report was 
 
        served prior to the pretrial hearing and prior to the time 
 
        required for service under the prehearing order. Dr. Cotton's 
 
        report should not be excluded from the record and it will be 
 
        considered in this decision.
 
        
 
        The first issue to be resolved is whether the deputy correctly 
 
        concluded that there was no causal connection between the work 
 

 
        
 
 
 
 
 
        injury of October 26, 1981 (neck and shoulder) and a permanent 
 
        disability. In discussing this issue the deputy stated:
 
        
 
        Although claimant testified that he fully recovered from the two 
 
        prior injuries before the October, 1981, work injury, the 
 
        evidence submitted in this case fails to demonstrate a causal 
 
        connection between the work injury and claimant's continuing left 
 
        shoulder and cervical spine complaints. First, the existence of 
 
        the prior injuries requires this agency to rely heavily upon the 
 
        opinions of experts. Only one physician in this case, Dr. Blume, 
 
        opines that claimant's current cervical problems are due to the 
 
        1981 injury. However, at no time does Dr. Blume mention 
 
        claimant's prior injuries in the reports he submitted in this 
 
        case especially the prior left shoulder injury in 1973. 
 
        Consequently, there is no way of knowing whether Dr. Blume knew 
 
        of these prior injuries. Furthermore, despite being regularly 
 
        treated by several orthopedic surgeons between January, 1982, and 
 
        September, 1983, none of these physicians report that claimant 
 
        was complaining of continuing neck and shoulder pain until 
 
        September, 1983, In September, 1983, Dr. Dougherty opined that 
 
        claimant's problems at that time were the result of "an 
 
        aggravation of a preexisting condition." what is unclear from 
 
        this report is what was the
 
        
 
        MINOR v. SWIFT INDEPENDENT PACKING
 
        Page 9
 
        
 
        
 
        preexisting condition, the auto accident, the boating accident or 
 
        the work injury of October, 1981.
 
        
 
        Finally, even if claimant had established causal connection, the 
 
        preponderance of the evidence fails to demonstrate that claimant 
 
        suffers permanent impairment from the neck and back condition. 
 
        Although Dr. Blume felt that claimant has a herniated disc which 
 
        requires further evaluation and tests such as a myelogram and a 
 
        CT scan, two orthopedic surgeons, Dr. Blenderman [sic] and Dr. 
 
        Dougherty, both do not feel that there is much of anything 
 
        permanently wrong with claimant's neck and do not recommend 
 
        further treatment.
 
        
 
        The deputy's conclusion is further supported by the report of Dr. 
 
        Cotton which is now evidence in the record. Dr. Cotton also 
 
        disputed Dr. Blume's opinion that there was a need for 
 
        neurosurgical evaluation of claimant's cervical spine. Dr. 
 
        Blume's opinions are weakened by the fact that he attributed both 
 
        conditions of the lower cervical and the right side carpal tunnel 
 
        to an October 1981 work injury. The October 1981 incident 
 
        involved the fall at work and the carpal tunnel syndrome, both 
 
        left and right, related to activities in 1982. Dr. Blume's 
 
        opinions appear to be based upon an inaccurate history and cannot 
 
        be relied upon. Claimant has not proved that his current cervical 
 
        problems are related to a work injury on October 26, 1981.
 
        
 
        The next issue to be resolved is the nature and extent of 
 
        disability resulting from the work injury of October 6, 1982 
 
        (carpal tunnel syndromes on the right and left). Claimant argues 
 
        on appeal that the deputy erred because the determination of 
 
        impairment was too low. Defendants argue on appeal that the 
 
        deputy erred in raking any award because there was no permanency. 
 
        Dr. Kleider, who performed the surgeries on claimant for the 
 
        carpal tunnel releases, stated that he would be surprised if 
 
        there were any "residuals" or permanency. He formed that opinion 
 
        approximately 18 months after the surgeries but admitted he had 
 
        not seen claimant for a long time. Dr. Dougherty who treated 
 
        claimant for the difficulties of the hands opined that claimant 
 

 
        
 
 
 
 
 
        had a permanent impairment of one to two percent or he upper 
 
        extremity. Dr. Blume, whose opinion as discussed above is based 
 
        upon an apparent inaccurate history, opined that the permanent 
 
        partial disability to each hand was ten percent. Dr. Cotton who 
 
        examined claimant one time stated that there was no neurological 
 
        impairment evident. Dr. Dougherty was a treating physician and 
 
        he treated claimant for the carpal tunnel syndromes approximately 
 
        five months after the release surgeries. Dr. Dougherty would be 
 
        in the best position to know the nature and extent of claimant's 
 
        disability. Therefore, Dr. Dougherty's opinion will be accepted. 
 
        Claimant has proved that he suffered a two percent permanent 
 
        impairment to each of the upper extremities. That impairment 
 
        converts to a combined value of two percent of the body of a 
 
        whole using the AMA guides.
 
        
 
        MINOR v. SWIFT INDEPENDENT PACKING
 
        Page 10
 
        
 
        
 
        The last issue to be resolved is whether claimant is entitled to 
 
        reimbursement for Dr. Blume's bill. Claimant asserts that part of 
 
        the bill should be paid as an examination pursuant to Iowa Code 
 
        section 85.39. Claimant made application for the medical 
 
        examination and the application was made a part of the contested 
 
        case proceeding pursuant to a ruling dated July 9, 1985. Iowa 
 
        Code section 85.39 does not contemplate treatment. The majority 
 
        of Dr. Blume's bill was for treatment of claimant. Iowa Code 
 
        section 85.39 contemplates payment of expenses for purposes of 
 
        obtaining an evaluation of permanent impairment when there is a 
 
        disagreement as to the extent of impairment. Dr. Blume's bill 
 
        contains detail that on December 9, 1985 he billed $150 for a 
 
        complete physical with a neurological examination and evaluation. 
 
        Following that evaluation, Dr. Blume gave an impairment rating to 
 
        claimant's hands. Claimant had previously been given an 
 
        impairment rating of the upper extremity by Dr. Dougherty. 
 
        Claimant should be reimbursed for the $150 evaluation that led to 
 
        an impairment rating. However, the claimant should not be totally 
 
        reimbursed for this bill. It should be noted that treatment and 
 
        examination also related to claimant's cervical condition in 1985 
 
        and 1986 and that the condition was not causally connected to a 
 
        work injury of October 26, 1981.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant was employed by defendant employer from February 1971 
 
        to October 1983 as a meat cutter.
 
        
 
        2. On October 26, 1981 claimant suffered an injury to his neck 
 
        and left shoulder when he fell at work. This injury arose out of 
 
        and in the course of his employment.
 
        
 
        3. Claimant had had a boating accident in 1973 which injured his 
 
        left shoulder and jaw.
 
        
 
        4. After the claimant returned to work following the October 26, 
 
        1981 work injury he was treated by physicians for complaints of 
 
        pain and numbness in claimant's hands. None of these physicians 
 
        reported complaints of neck and shoulder pain until September 
 
        1983.
 
        
 
        5. Claimant did not suffer any permanent impairment to his neck 
 
        and shoulder as a result of his October 26, 1981 work injury.
 
        
 
        6. Claimant operated a wizard knife, an electrically powered meat 
 
        cutting tool, in his job with defendant employer during the 
 
        summer and fall of 1982.
 

 
        
 
 
 
 
 
        
 
        7. On October 6, 1982 claimant suffered injuries to his left and 
 
        right wrists which arose out of and in the course of his 
 
        employment.
 
        
 
        MINOR v. SWIFT INDEPENDENT PACKING
 
        Page 11
 
        
 
        
 
        8. Dr. Kleider performed carpal tunnel surgical decompression on 
 
        the left wrist in November 1982 and on the right wrist in 
 
        December 1982.
 
        
 
        9. The injury of October 6, 1982 was a cause of a two percent 
 
        permanent partial impairment to each of claimant's upper 
 
        extremities.
 
        
 
        10. Dr. Blume's bill of $655 was for evaluation and treatment of 
 
        claimant's neck and shoulder problems beginning in 1985. A 
 
        portion ($150) of the total bill was for purposes of rating an 
 
        impairment.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has not proved by the preponderance of the evidence that 
 
        there is a causal connection between a work injury of October 26, 
 
        1981 and a permanent impairment to his neck and shoulder.
 
        
 
        Claimant has proved by the preponderance of the evidence that 
 
        there is a causal connection between a work injury of October 6, 
 
        1982 and a permanent impairment of two percent of each of his 
 
        upper extremities.
 
        
 
        Claimant has not proved by the preponderance of the evidence that 
 
        all of the medical expenses of Dr. Blume should be reimbursed. 
 
        Claimant has proved that he should be reimbursed $150.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 
                                                
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants shall pay to claimant ten (10) weeks of permanent 
 
        partial disability benefits at the rate of two hundred thirty-one 
 
        and 06/100 dollars ($231.06) per week from January 24, 1983.
 
        
 
        That defendants shall pay accrued weekly benefits in a lump sum 
 
        and shall receive credit against this award for permanent partial 
 
        disability benefits previously paid, if any.
 
        
 
        That defendants shall pay one hundred fifty dollars ($150) for 
 
        the evaluation by Dr. Blume.
 
        
 
        That defendants shall pay interest on benefits awarded herein as 
 
        set forth in Iowa Code section 85.30.
 
        
 
        MINOR v. SWIFT INDEPENDENT PACKING
 
        Page 12
 
        
 
        
 
        That defendants shall pay the costs of the arbitration and 
 
        review-reopening proceeding along with the costs of the appeal 
 
        including costs of the transcription of the hearing proceeding 
 
        pursuant to Division of Industrial Services Rule 343-4.33.
 

 
        
 
 
 
 
 
        
 
        That defendants shall file activity reports on the payment of 
 
        this award as requested by this agency pursuant to Division of 
 
        Industrial Services Rule 343-3.1.
 
        
 
        
 
        Signed and filed this 30th day of December, 1988.
 
        
 
        
 
        
 
                                              DAVID E. LINQUIST
 
                                           INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         HANS R. MINOR,
 
                                                 FILE NOS. 719614 & 
 
                                                           686275
 
                   Claimant,
 
                                                   A R B I T R A T I 0 N
 
              VS.
 
                                                            A N D
 
         
 
         SWIFT INDEPENDENT PACKING,                     R E V I E W -
 
         
 
                   Employer,                         R E 0 P E N I N G
 
         
 
                   and                                D E C I S I O N
 
         
 
         NATIONAL UNION FIRE,
 
         
 
                      Insurance Carrier,
 
                      Defendants.
 
         _________________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a combined proceeding in review-reopening and 
 
         arbitration brought by Hans R. Minor, claimant, against Swift 
 
         Independent Packing, employer (hereinafter referred to as Swift), 
 
         and National Union Fire Insurance Company, insurance carrier, 
 
         defendants, for workers' compensation benefits as a result of 
 
         alleged injuries on October 26, 1981 and October 6, 1982.  A 
 
         memorandum of agreement for the October 26, 1981 injury was filed 
 
         on November 13, 1981. on July 7, 1987, a hearing was held on 
 
         claimant's petition and the matter was considered fully submitted 
 
         at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing. oral testimony 
 
         was received during the hearing from claimant.  The exhibits 
 
         received into the evidence at the hearing are listed in the 
 
         prehearing report except that claimant's exhibit 3 and pages 1A 
 
         through 1F of exhibit A (medical reports of Joel D. Cotton, M.D., 
 
         submitted by defendants).  These reports are from expert
 
         witnesses retained by the parties subsequent to the prehearing 
 
         conference.  Both parties object to these exhibits on the basis 
 
         of unfair surprise in that at the prehearing conference a hearing 
 
         date was agreed to on the basis that no new evidence would be 
 
         offered.  However, each side obtained expert opinions and served 
 
         those upon the opposing party only a few days before the hearing.  
 
         Both parties are correct.  Such surprise evidence should not be 
 
         permitted.  If the parties had planned on hiring additional 
 
         expert witnesses for use at hearing they should have
 
         
 
         so indicated at the time of the prehearing conference, not a few 
 
         days before the hearing.  All of the rest of the exhibits and 
 

 
         
 
         
 
         
 
         MINOR V. SWIFT INDEPENDENT PACKING
 
         Page   2
 
         
 
         
 
         oral testimony received into the evidence at the hearing was 
 
         considered in arriving at this decision.
 
         
 
              The prehearing report contains the following stipulations:
 
         
 
              1.  On October 26, 1981 and October 6, 1982, claimant 
 
         received injuries which arose out of and in the course of 
 
         employment with Swift;
 
         
 
              2.  Claimant is not seeking additional temporary total 
 
         disability or healing period benefits in this proceeding; and,
 
         
 
              3.  Claimant's rate of compensation in the event of an award 
 
         of weekly benefits from this proceeding shall be $233.91 for the 
 
         October, 1981, injury and $231.06 for the October, 1982, injury.
 
         
 
              The prehearing report submits the following issues for 
 
         determination in this decision:
 
         
 
              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 permanent disability; and,
 
         III. The extent of claimant's entitlement to medical benefits 
 
         under Iowa Code section 85.27 and 85.39.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was employed by Swift from February, 1971, to 
 
         October, 1983, as a meat cutter.
 
         
 
              There was little dispute among the parties as to the nature 
 
         of claimant's employment with Swift.  Claimant voluntarily left 
 
         his employment with Swift in October, 1983, following a decrease 
 
         in his wages under a new union contract.  According to claimant's 
 
         testimony in his deposition, claimant took early retirement 
 
         because he did not wish to work for the lower wages.
 
         
 
              2.  On October 26, 1981, claimant suffered an injury to his 
 
         neck and left shoulder which arose out of and in the course of 
 
         his employment with Swift.
 
         
 
              Claimant testified that he injured his neck and left 
 
         shoulder during his employment with Swift when he fell from a 
 
         platform approximately one foot off the floor and landed on his 
 
         back and left shoulder.  Claimant stated that he felt immediate 
 
         pain in the neck and left shoulder.  Claimant was initially 
 
         treated by Arthur Gelfand, M.D., for a contused left shoulder.  
 
         Dr. Gelfand prescribed heat treatment but the treatment proved 
 
         ineffective
 
         to relieve claimant's pain.  Dr. Gelfand then referred claimant 
 
         to M. E. Wheeler, M.D., an orthopedic surgeon, in November, 1981. 
 
          Dr. Wheeler diagnosed tendonitis and a contused left shoulder.  
 
         Dr. Wheeler prescribed muscle relaxants and rest for four to six 
 
         weeks.  Claimant was also seen by A. D. Blendermann, M.D., 
 
         another orthopedic surgeon, for his problems in December, 1981.  
 
         Dr. Blendermann diagnosed cervical, rhomboid ligaments sprain and 
 
         a sprain of the rotator cuff in the left shoulder.  Upon the 
 

 
         
 
         
 
         
 
         MINOR V. SWIFT INDEPENDENT PACKING
 
         Page   3
 
         
 
         
 
         advice of Dr. Blendermann, claimant underwent physical therapy 
 
         for approximately a month consisting of heat, massage and 
 
         ultrasound.  Following claimant's return to work on January 18, 
 
         1982, Dr. Blendermann discharged claimant from his care with only 
 
         "exceedingly mild" pain in the cervical spine.  Dr. Blendermann 
 
         suggested that claimant be careful lifting for approximately one 
 
         month after his discharge.
 
         
 
              3.  The preponderance of the evidence does not establish 
 
         that claimant suffered permanent impairment to his body as a 
 
         whole as a result of the October 29, 1981 injury to his neck and 
 
         shoulder.
 
         
 
              Although claimant's credibility is somewhat suspect due to 
 
         his erroneous answers to interrogatories (exhibit F) concerning 
 
         past injuries, adequate medical evidence exists in the record 
 
         independent of claimant's testimony to show that claimant does 
 
         have continuing problems with his neck and left shoulder.  
 
         However, claimant failed to meet his burden of proof that these 
 
         problems are the result of the October, 1981, injury.  This 
 
         failure would exist even if claimant did not have any credibility 
 
         problems.
 
         
 
              Claimant has had two prior serious spinal injuries.  In 
 
         1970, claimant was involved in a serious auto accident which 
 
         injured his lower back requiring absence from work for several 
 
         weeks.  John J. Dougherty, M.D., the treating physician at that 
 
         time, prescribed the use of a back brace for some period of time 
 
         as a result of this accident.  Claimant also was involved in a 
 
         serious boating accident in 1973 when the boat in which he was 
 
         riding was literally cut in half by another boater.  Claimant 
 
         stated that he was off work for approximately two weeks as a 
 
         result of an injury to his left shoulder as a result of his 
 
         accident.
 
         
 
              Claimant testified that he now suffers from continuous pain, 
 
         stiffness and lack of motion in his neck and left shoulder which 
 
         has not changed since the 1981 work injury.  Following the 
 
         January, 1982 discharge by Dr. Blendermann, claimant has received 
 
         treatment of his problems from Dr. Dougherty in September, 1982 
 
         and extensive physiotherapy, at the direction of another 
 
         orthopedic surgeon, Horce Blume, M.D., a neurosurgeon, in 1985 
 
         and 1986.
 
         
 
              Although claimant testified that he fully recovered from 
 
         the two prior injuries before the October, 1981, work injury, the 
 
         evidence submitted in this case fails to demonstrate a causal 
 
         connection between the work injury and claimant's continuing left 
 
         shoulder and cervical spine complaints.  First, the existence of 
 
         the prior injuries requires this agency to rely heavily upon the 
 
         opinions of experts.  Only one physician in this case, Dr. Blume, 
 
         opines that claimant's current cervical problems are due to the 
 
         1981 injury.  However, at no time does Dr. Blume mention 
 
         claimant's prior injuries in the reports he submitted in this 
 
         case especially the prior left shoulder injury in 1973.  
 
         Consequently, there is no way of knowing whether Dr. Blume knew 
 
         of these prior injuries.  Furthermore, despite being regularly 
 
         treated by several orthopedic surgeons between January, 1982, and 
 

 
         
 
         
 
         
 
         MINOR V. SWIFT INDEPENDENT PACKING
 
         Page   4
 
         
 
         
 
         September, 1983, none of these physicians report that claimant 
 
         was complaining of continuing neck and shoulder pain until 
 
         September, 1983.  In September, 1983, Dr. Dougherty opined that 
 
         claimant's problems at that time were the result of "an 
 
         aggravation of a preexisting condition."  What is unclear from 
 
         this report is what was the preexisting condition, the auto 
 
         accident, the boating accident or the work injury of October, 
 
         1981.
 
         
 
              Finally, even if claimant had established causal connection, 
 
         the preponderance of the evidence fails to demonstrate that 
 
         claimant suffers permanent impairment from the neck and back 
 
         condition.  Although Dr. Blume felt that claimant has a herniated 
 
         disc which requires further evaluation and tests such as a 
 
         myelogram and a CT scan, two orthopedic surgeons, Dr. Blendermann 
 
         and Dr. Dougherty, both do not feel that there is much of 
 
         anything permanently wrong with claimant's neck and do not 
 
         recommend further treatment.
 
         
 
              4.  On October 6, 1982, claimant suffered injuries to his 
 
         left and right wrist which arose out of and in the course of his 
 
         employment with Swift.
 
         
 
              Claimant testified that after a period of time operating a 
 
         wizard knife, an electrically powered meat cutting tool, in his 
 
         job at Swift during the summer and fall of 1982, claimant 
 
         developed pain and numbness in his wrist and hands, initially on 
 
         the left.  Claimant reported to the company doctor, Michael 
 
         Jennings, M.D., in October, 1982.  Dr. Jennings suspected carpal 
 
         tunnel syndrome and took claimant off work for a week and 
 
         prescribed use of a wrist splint.  Eventually, Dr. Jennings 
 
         referred claimant to a neurologist, Dennis Nitz, M.D., when 
 
         claimant's symptoms recurred after his return to work.  After his 
 
         examination of claimant on October 2, 1982 and a positive EMG 
 
         test, Dr. Nitz diagnosed claimant as suffering from left carpal 
 
         tunnel syndrome and referred claimant to A. Klieder, M.D., for 
 
         further treatment.  On November 5, 1982, Dr. Klieder performed a 
 
         surgical decompression of the carpal tunnel syndrome in 
 
         claimant's left wrist.  Later that same month claimant noted 
 
         similar symptoms on the right wrist and upon another positive 
 
         
 
              EMG test Dr. Klieder diagnosed right carpal tunnel syndrome 
 
              and performed another decompression surgery on December 6, 
 
              1983.  Claimant then returned to work in the latter part of 
 
              January, 1983.
 
         
 
              5.  The injury of October 6, 1982, was a cause of a two 
 
         percent permanent partial impairment to each of claimant's upper 
 
         extremities.
 
         
 
              Following recovery from the second decompression surgery, 
 
         claimant's symptoms did not subside.  Claimant has continually 
 
         complained of numbness and swelling in both of his hands since 
 
         that time.  Dr. Klieder indicated in his report of May 9, 1983, 
 
         that this condition is the result of a repeated trauma to the 
 
         hands and there is nothing else he could do except recommend a 
 
         change of employment.  In May, 1984, Dr. Klieder opined that he 
 
         felt the carpal tunnel syndrome problems were work related but 
 
         stated that he would be surprised if claimant had permanency from 
 

 
         
 
         
 
         
 
         MINOR V. SWIFT INDEPENDENT PACKING
 
         Page   5
 
         
 
         
 
         the condition.  However, Dr. Klieder stated at the time that he 
 
         had not examined claimant recently.  Dr. Dougherty began treating 
 
         claimant's hand difficulties in the later part of May, 1983.  
 
         This treatment consisted of use of an "exerciser" and medication.  
 
         Claimant also had a recurring ganglion cyst on the right wrist.  
 
         Finally, in October, 1983, Dr. Dougherty stated that claimant's 
 
         wrists problems were the result of overuse syndrome and like Dr. 
 
         Klieder he stated he could do nothing further for claimant.  Dr. 
 
         Dougherty opines that claimant has a "one-two" percent permanent 
 
         partial impairment of each upper extremity as a result of his 
 
         persistent carpal tunnel syndrome problems.
 
         
 
              6.  A finding could not be made as to the causal connection 
 
         between claimant's requested medical expenses and a work injury 
 
         found in this case.
 
         
 
              All of the requested medical expense in this case were for 
 
         evaluation and treatment of claimant's neck and left shoulder 
 
         problems beginning in 1985 performed by Dr. Blume.  For reasons 
 
         stated above, none of these conditions were found to be causally 
 
         connected to,the October, 1981, work injury or another work 
 
         injury in this case.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              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 alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 91 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 

 
         
 
         
 
         
 
         MINOR V. SWIFT INDEPENDENT PACKING
 
         Page   6
 
         
 
         
 
         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).
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  Permanent partial disabilities 
 
         are classified as either scheduled or unscheduled.  A specific 
 
         scheduled disability is evaluated by the functional method; the 
 
         industrial method is used to evaluate an unscheduled disability. 
 
         Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 
 
         (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
         Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983).  
 
         When the result of an injury is loss to a scheduled member, the 
 
         compensation payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2). Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 
         of use" of a member is equivalent to "loss" of the member.  Moses 
 
         v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922).  
 
         Pursuant to Code section-85.34(2)(u) the industrial commissioner 
 
         may equitably prorate compensation payable in those cases wherein 
 
         the loss is something less than that provided for in the 
 

 
         
 
         
 
         
 
         MINOR V. SWIFT INDEPENDENT PACKING
 
         Page   7
 
         
 
         
 
         schedule.  Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 
         1969).
 
         
 
              The parties had stipulated to a single injury date of 
 
         October 6, 1982 for claimant's bilateral wrist injuries.  Based 
 
         upon a finding of a two percent loss of use to both arms from 
 
         this single injury to claimant's hands or arms, claimant is 
 
         entitled to disability benefits as measured pursuant to Iowa Code 
 
         section 85.34(2)(s).  Under that code section, if the disability 
 
         is partial, then the extent of permanent disability is measured 
 
         only functionally as a percentage of the loss of use of each 
 
         extremity which is then converted into a percentage of the body 
 
         as a whole and the two ratings combined into one body of the 
 
         whole value.  If the disability is total or a total loss of 
 
         earning capacity is found to have occurred from a multiple injury 
 
         under 85.24(2)(s) loss, the disability is measured industrially 
 
         and claimant would be entitled to permanent total disability 
 
         benefits under Iowa Code section 85.34(3). See Simbro, 332 N.W.2d 
 
         886 (Iowa 1983); Burgett v. Man An So, Corp., III Iowa Industrial 
 
         Commissioner Reports, 30A (Appl.  Decn. 1982).
 
         
 
              In the case sub judice, it is rather obvious that claimant 
 
         has not suffered permanent total disability.  Therefore, the 
 
         disability is measured only functionally.  Using the AMA Guides 
 
         for evaluating permanent impairment, recognized by this agency in 
 
         determining functional disability, see Division of Industrial 
 
         Services Rule 343-2.4, and utilized pursuant to this agency's 
 
         special expertise in such matters, a two percent permanent 
 
         partial impairment to an upper extremity converts to a one 
 
         percent whole man impairment and the combined value of two such 
 
         impairments converts under the Guides to a total of two percent 
 
         of the body as a whole.  Therefore, claimant is entitled to 10 
 
         weeks of permanent partial disability benefits which is two 
 
         percent of the 500 weeks allowable for an injury in Iowa Code 
 
         section 85.34(2)(s).
 
         
 
              As stipulated in the prehearing report, claimant's healing 
 
         period ended on January 23, 1983.  Therefore, permanent partial 
 
         disability benefits shall be awarded from January 24, 1983.
 
         
 
              As no medical expenses were causally connected to a work 
 
         injury, claimant is not entitled to an order from this agency 
 
         directing reimbursement of those expenses.
 
         
 
         
 
         
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant ten (10) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         thirty-one and 06/100 dollars ($231.06) per week from January 24, 
 
         1983.
 
         
 
              2.  Defendants shall pay accrued weekly benefits in a lump
 
         sum and shall receive credit against this award for permanent 
 
         partial disability benefits previously paid, if any.
 
         
 
              3.  Defendants shall pay interest on benefits awarded herein 
 

 
         
 
         
 
         
 
         MINOR V. SWIFT INDEPENDENT PACKING
 
         Page   8
 
         
 
         
 
         as setforth in Iowa Code section 85.30.
 
         
 
              4.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              5.  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 11th day of September, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P. 0. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Bldg.
 
         P. 0. Box 386
 
         Sioux City, Iowa 51102
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803
 
                                                 Filed September 11, 1987
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         _________________________________________________________________
 
         
 
         
 
         HANS R. MINOR,
 
                                                  FILE NOS. 719614 & 
 
                                                            686275
 
              Claimant,
 
                                                    A R B I T R A T I 0 N
 
         VS.
 
                                                             A N D
 
         SWIFT INDEPENDENT PACKING,
 
                                                          R E V I E W
 
              Employer,
 
                                                       R E 0 P E N I N G
 
         and
 
                                                        D E C I S I 0 N 
 
         NATIONAL UNION FIRE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         _________________________________________________________________
 
         
 
         
 
         1803
 
         
 
              Claimant awarded a small amount of benefits under Iowa Code 
 
         section 85.34(2)(s) for simultaneous bilateral carpal tunnel 
 
         syndrome to both wrists.  The causal connection of claimant's 
 
         shoulder and neck problems was not established by the evidence 
 
         due to the existence of prior injuries.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MARVIN NEUBAUER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                     File No.  719615
 
         INTERSTATE POWER COMPANY,
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Marvin 
 
         Neubauer against Interstate Power Company, his former employer, 
 
         and Liberty Mutual Insurance Company, the employer's insurance 
 
         carrier.  The case was heard and fully submitted on August 20, 
 
         1987 at Mason City, Iowa.  The record in the proceeding consists 
 
         of testimony from Marvin Neubauer, Clark Borland and Shelby 
 
         Swain.  The record also contains claimant's exhibits 1 through 5 
 
         and defendants' exhibits A, B, C and D.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks compensation for permanent total disability 
 
         and urges that the odd-lot doctrine is applicable.  It was 
 
         stipulated that claimant sustained injury which arose out of and 
 
         in the course of his employment on November 18, 1982 and that 
 
         claimant's healing period ended on July 31, 1984.  It was further 
 
         stipulated that claimant's rate of compensation is $311.23 per 
 
         week, that all healing period compensation has been paid and that 
 
         157 weeks of compensation for permanent partial disability had 
 
         been paid through August 18, 1987.  The only issue to be 
 
         determined is claimant's entitlement to compensation for 
 
         permanent disability that resulted from the injury he sustained 
 
         on November 18, 1982.
 
         
 
                             SUMMARY OF EVIDENCE
 
         
 
              The following is only a brief summary of pertinent evidence. 
 
          All evidence received at the hearing was considered when 
 
         deciding the case even though it may not necessarily be referred 
 
         to in this decision.
 
              Marvin Neubauer is a 52-year-old man who graduated from high 
 
         school and attended Ellsworth Community College the following 
 
         year.  He denied having any subsequent formal education or 
 
         training other than that provided by his employers.  Claimant has 
 
         worked in the past as an insurance salesman.
 
         
 
              Claimant worked as a common laborer in 1953 and then joined 
 

 
         
 
         
 
         
 
         NEUBAUER V. INTERSTATE POWER COMPANY
 
         Page   2
 
         
 
         Local 55 of the International Brotherhood of Electrical Workers. 
 
          He became an apprentice electrical lineman and eventually became 
 
         a journeyman.  He has been employed as a lineman since that time. 
 
          At times, he worked out of the union hall.  Since 1965 he had 
 
         been steadily employed by Interstate Power Company as a 
 
         journeyman lineman.  His work involved installing and maintaining 
 
         lines.  He worked on poles and with underground lines.
 
         
 
              On November 18, 1982, claimant's pay was determined by the 
 
         union contract.  In 1982, he earned $25,222.63.  Claimant 
 
         testified that, if still employed by Interstate Power Company, he 
 
         would now be earning $14.90 per hour.  Claimant's testimony in 
 
         that regard is corroborated by testimony from Gene Jamtgaard 
 
         (claimant's exhibit 4, pages 5 and 6).
 
         
 
              Claimant testified that his injury occurred on November 18, 
 
         1982.  He stated that he was working on a pole using climbers and 
 
         a body belt.  He testified that he was trying to lift a wire over 
 
         the cross-arm and that it stopped and he felt pain below the body 
 
         belt.  Claimant testified that he climbed down from the pole, 
 
         reported the injury and was taken to the hospital in Mason city.
 
         
 
              Claimant thereafter entered into a course of medical 
 
         treatment which included two surgeries at the Sister Kenny 
 
         Institute in Minnesota.  He has not returned to work, except for 
 
         a few weeks in July and August in 1983 prior to the time the 
 
         surgeries were performed (exhibit 1, page 8; exhibit 3, pages 13 
 
         and 14).  Exhibit 1-40, a report from Robert E. McCoy, M.D., 
 
         dated February 6, 1987, contains a reasonably accurate summary of 
 
         claimant's course of medical treatment, claimant's complaints and 
 
         claimant's physical impairment.  That report is incorporated 
 
         herein by this reference as if it was fully set forth.
 
         
 
              The stipulated date of July 31, 1984 for the end of the 
 
         healing period is supported by exhibit 1-18 where it is indicated 
 
         by Alexander Lifson, M.D., that claimant had reached maximum 
 
         medical improvement at that time.
 
         
 
             In exhibit 1-20, Dr. Lifson rates claimant as having a 25% 
 
         permanent partial disability.  Dr. McCoy also felt that claimant 
 
         had a 25% permanent partial impairment of the whole man (exhibit 
 
         3, pages 9 and 10).
 
         
 
              Dr. McCoy opined that both claimant's surgeries were brought 
 
         on as a result of the injury of November 18, 1982 (exhibit 3, 
 
         pages 20-22).
 
              Dr. McCoy indicated that claimant could probably do some 
 
         things employment-wise from a medical standpoint, but that he 
 
         expected claimant would have a very difficult time finding work 
 
         (exhibit 3, pages 15 and 16).  Dr. McCoy agreed with Dr. Lifson 
 
         that claimant could probably work in an employment setting in 
 
         which he could sit for up to four hours at a time, stand for up 
 
         to one hour and walk for up to three hours, during an eight-hour 
 
         day.  He also stated, however, that claimant's ability to stand 
 
         without having increased pain was limited to a half hour and that 
 
         sitting was aggravating.  Dr. McCoy also indicated that claimant 
 
         is unable to do any lifting or carry out any activities in which 
 
         he has to maintain his back in a flexed position.  He stated that 
 
         claimant is made stiff by cold weather (exhibit 3, pages 24-26).
 
         
 

 
         
 
         
 
         
 
         NEUBAUER V. INTERSTATE POWER COMPANY
 
         Page   3
 
         
 
              Dr. Lifson indicated that claimant was capable of being 
 
         employed (exhibit 1-18).  Claimant's functional capacities 
 
         evaluation indicated that he could sit for four hours, stand for 
 
         one hour and walk for three hours during an eight-hour day. it 
 
         further indicated that claimant could occasionally or frequently 
 
         bend, squat, crawl, climb, crouch, kneel, balance and push or 
 
         pull (exhibit B-7).
 
         
 
              Claimant's case was initially followed by Clark H. Williams, 
 
         M.S., a rehabilitation consultant, as shown by numerous reports 
 
         contained within exhibit 1.  This commenced in 1984 and continued 
 
         into 1986.  While there were a number of contacts between the 
 
         consultant and the claimant, it appears that little was actually 
 
         attempted or accomplished in the way of retraining, 
 
         rehabilitation or applying for any specific jobs.  Claimant had 
 
         mailed resumes to a number of electric power companies in the 
 
         state, but apparently received no favorable responses.
 
         
 
              Another consultant, Shelby Swain, became involved in the 
 
         case.  Claimant has applied for employment as an electrical 
 
         equipment salesman for American Electrical Sales Company.  The 
 
         job has been offered to claimant.  The estimates of the income 
 
         which could be expected vary greatly due to the fact that the 
 
         compensation for the job is based solely on commission.  It 
 
         provides no draw, expense reimbursement or other fringe benefits. 
 
         Swain testified that claimant has the ability to be a good 
 
         salesman.
 
         
 
              Clark Borland, a counselor with the Iowa Division of 
 
         Vocational Rehabilitation, has also evaluated claimant.  Upon 
 
         conducting commonly-used tests, he found claimant to have high 
 
         verbal skills and above average learning ability.  Borland 
 
         indicated that sales of electrical equipment would be a 
 
         recommended job field for claimant.  Borland testified that 
 
         claimant would require selective placement and that he could 
 
         expect to earn somewhere in the range of $3.35 to $7.00 per hour.  
 
         Borland also indicated that other potential job areas would be 
 
         counter sales for automotive or appliance parts.  Borland 
 
         estimated that claimant's earning potential with the American 
 
         Electrical Sales Company could be up to $15,000 per year if 
 
         claimant worked vigorously and if the job was typical for most 
 
         sales jobs.  Borland indicated that claimant can realistically 
 
         compete for a limited number of jobs in the area.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The only issue to be determined is the degree of claimant's 
 
         permanent disability.  Claimant's injury was to his back and that 
 
         is clearly an injury of the type which should be compensated 
 
         industrially under the provisions of section 85.34(2)(u).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man.O
 

 
         
 
         
 
         
 
         NEUBAUER V. INTERSTATE POWER COMPANY
 
         Page   4
 
         
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability, or loss of earning capacity, in a 
 
         workers' compensation case is quite similar to impairment of 
 
         earning capacity, an element of damages in a tort case.  
 
         Impairment of physical capacity creates an inference of lessened 
 
         earning capacity.  The basic element to be determined, however, 
 
         is the reduction in value of the general earning capacity of the 
 
         person rather than loss of wages or earnings in a specific 
 
         occupation.  Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) 100 A.L.R.3d 143; 2 Larson Workmen's 
 
         Compensation, section 57.21, 57.31.  While post-injury earnings 
 
         create a presumption of earning capacity, they are not synonymous 
 
         with earning capacity. 2 Larson, Id.
 
         
 
              Claimant contends that he is permanently and totally 
 
         disabled, that he has made a prima facie showing of permanent 
 
         total disability and that the burden of proof has shifted to the 
 
         employer to show that claimant is not totally disabled.  Guyton 
 
         v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).  The test of 
 
         permanent total disability in workers' compensation cases can be 
 
         summarized as follows:  When the combination of the factors 
 
         considered in determining industrial disability precludes the 
 
         worker from obtaining regular employment in which he can earn a 
 
         living for himself, his disability is a total disability.  
 
         Guyton, Id.; McSpadden v. Big Ben Coal Co., 282 N.W.2d 181, 192 
 
         (Iowa 1980); Diederich v. Tri-City R. Co., 219 Iowa 587, 594, 258 
 
         N.W. 899, 902 (1935).
 
         
 
              Marvin Neubauer would currently be earning in the range of 
 
         $14.00 per hour and $30,000 per year if he was still employed at 
 
         Interstate Power Company.  His injury has made him unable to 
 
         retain that employment.  He has been forced to re-enter the job 
 
         market at the age of approximately 50.  The reports from Clark 
 
         Williams and other references in the record seem to indicate that 
 
         claimant exhibited a high level of motivation to be gainfully 
 
         employed.  That appearance, however, seems to have been somewhat 
 
         superficial since claimant has actually done little in the way of 
 
         seeking any retraining or seeking any employment.  It is 
 
         understandable that he would be reluctant to take a large 
 
         reduction in his rate of earnings, but, under the existing 
 
         circumstances, there is really no alternative for him.  The 
 
         physicians and vocational consultants seem to consistently 
 
         indicate that claimant is employable, but that placement will not 
 
         be easy.  The highest estimate of earning potential, provided by 
 
         the vocational consultants, is in the range of $15,000 per year.  
 
         The estimates of earning potential, as made by claimant's 
 
         prospective employer through Shelby Swain, are simply too 
 
         speculative to be relied upon since it is purely an estimate made 
 
         without the benefit of experience from a similar sales route in 
 
         the similar sales area.  When all the applicable factors of 
 
         industrial disability are considered, it is determined that 
 
         Marvin Neubauer has sustained a 60% permanent partial disability 
 

 
         
 
         
 
         
 
         NEUBAUER V. INTERSTATE POWER COMPANY
 
         Page   5
 
         
 
         as a result of the injuries he sustained on November 18, 1982.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On November 18, 1982, Marvin Neubauer was a resident of 
 
         the state of Iowa employed by Interstate Power Company as a 
 
         lineman.
 
         
 
              2.  Claimant was injured on November 18, 1982 while 
 
         reattaching power lines to a pole.
 
         
 
              3.  Following the injury, claimant was medically incapable 
 
         of performing work in employment substantially similar to that in 
 
         which he was engaged at the time of injury from November 18, 1982 
 
         until July 31, 1984 when his recovery had progressed to the point 
 
         that further improvement was not anticipated.  Claimant had, 
 
         however, returned to work for several weeks in July and August of 
 
         1983, which interrupted the healing period.
 
         
 
              4.  Claimant is 50 years of age, a high school graduate and 
 
         has attended one year of training at a community college during 
 
         the year following his graduation from high school.
 
         
 
         
 
              5.  At the time of injury, claimant was earning 
 
         approximately $25,000 per year and, if still employed as a 
 
         lineman, he would presently be earning approximately $30,000 per 
 
         year.
 
         
 
              6.  Claimant's physicians, Dr. Lifson and Dr. McCoy, have 
 
         indicated that claimant has a 25% permanent partial physical 
 
         impairment.
 
         
 
              7.  Claimant is limited in his ability to stand, walk, 
 
         carry, bend, twist and climb.  He is essentially limited to 
 
         sedentary or light employment.
 
         
 
              8.  Claimant's work experience in recent years has been 
 
         limited to that of an electrician and lineman.  He has worked 
 
         selling insurance several years ago.
 
         
 
              9.  Claimant is of at least average intelligence and appears 
 
         to be emotionally stable.
 
         
 
             10.  Claimant appears to be motivated to be gainfully 
 
         employed, but he fails to follow through with actions which would 
 
         be expected to be condusive to returning to gainful employment.
 
         
 
             11.  Claimant's injury to his back was a material aggravation 
 
         of a preexisting degenerative condition which had previously been 
 
         symptomatic at times.
 
         
 
             12.  Claimant's earning capacity at the present time is in 
 
         the range of minimum wage to as high as perhaps $15,000 per 
 
         year.
 
         
 
             13.  Claimant's loss of earning capacity that has resulted 
 
         from the injury of November 18, 1982 is a 60% loss.
 
         
 

 
         
 
         
 
         
 
         NEUBAUER V. INTERSTATE POWER COMPANY
 
         Page   6
 
         
 
             14.  The injury of November 18, 1982, or any other employment 
 
         incident involving Interstate Power Company, is established as a 
 
         substantial factor in producing the difficulties and physical 
 
         ailments which claimant has in the region of his lumbar spine, 
 
         but not for his cervical spine problems.
 
         
 
             15.  Claimant's testimony regarding the description of his 
 
         physical complaints is essentially credible.
 
         
 
             16.  The assessment of claimant's condition as made by Dr. 
 
         McCoy is accepted as correct.
 
         
 
             17.  The level of claimant's expected earnings, if he accepts 
 
         the currently offered position with American Electrical Sales, is 
 
         extremely speculative.  The evidence from Clark Borland as to 
 
         typical sales positions is determined to be more reliable than 
 
         the employer's estimate of what claimant's earnings might be.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injury claimant sustained to his back on November 
 
         18, 1982 arose out of and in the course of his employment with 
 
         Interstate Power Company.
 
         
 
              3.  The injury of November 18, 1982 was a proximate cause of 
 
         the disability with which claimant is currently afflicted 
 
         regarding his low back.
 
         
 
              4.  Claimant has a 60% permanent partial disability within 
 
         the meaning of section 85.34(2)(u).
 
         
 
              5.  Claimant is not permanently and totally disabled within 
 
         the meaning of section 85.34(3).
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant three 
 
         hundred (300) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of three hundred eleven and 
 
         23/100 dollars ($311.23) per week payable commencing August 1, 
 
         1984 .
 
         
 
              IT IS FURTHER ORDERED that defendants receive credit for the 
 
         one hundred fifty-seven (157) weeks of permanent partial 
 
         disability compensation paid prior to hearing and also for all 
 
         amounts paid subsequent to hearing.  Any amounts which have 
 
         become due and payable without being paid shall be paid to 
 
         claimant in a lump sum together with interest pursuant to section 
 
         85.30.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against defendants pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 

 
         
 
         
 
         
 
         NEUBAUER V. INTERSTATE POWER COMPANY
 
         Page   7
 
         
 
         Industrial Services Rule 343-3.l.
 
         
 
         
 
              Signed and filed this 19th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert w. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Jeffrey J. Greenwood
 
         Attorney at Law
 
         528 West 4th Street
 
         P.O. Box 1200
 
         Waterloo, Iowa 50704
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1803, 1804, 4100
 
                                                Filed February 19, 1988
 
                                                MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARVIN NEUBAUER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                      File No. 719615
 
         INTERSTATE POWER COMPANY,
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803, 1804, 4100
 
         
 
              Claimant, who sustained a back injury which caused him to 
 
         lose his $30,000 per year job, was awarded 60% permanent partial 
 
         disability.  He was held to be employable, although at a very 
 
         substantial reduction in earnings.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                      :
 
            LARRY P. SHANK,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 719627
 
            MERCY HOSPITAL MEDICAL CENTER,:
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            _____
 
            Claimant was previously determined to be permanently and 
 
            totally disabled in an appeal decision filed August 28, 
 
            1989.  A remand to the deputy was issued on the limited 
 
            question of the amount of disability that was attributable 
 
            to claimant's vision loss to determine the amount of 
 
            "credit" the Second Injury Fund of Iowa is entitled to for 
 
            claimant's prior vision loss due to congenital cataracts. 
 
            The deputy's decision on remand was issued July 16, 1990.  
 
            An appeal from that decision has been taken by both claimant 
 
            and the Second Injury Fund of Iowa.  The Fund, claimant, and 
 
            employer have filed briefs on appeal from the remand 
 
            decision.  The appeal brief of the Fund addresses five 
 
            issues, only the last of which deals with the subject of the 
 
            limited remand.  Only that portion of the Fund's brief will 
 
            be considered.  
 
            The issue in this appeal is the extent of impairment caused 
 
            by claimant's congenital vision loss.  Claimant was placed 
 
            at the Iowa Braille and Sightsaving School at age five.  
 
            Claimant is unable to read without glasses, and with 
 
            corrective lenses his vision is 20/200.  Claimant uses two 
 
            pairs of glasses, one for close vision, another for 
 
            distances.  Claimant cannot obtain a driver's license 
 
            because of his vision.  
 
            Claimant was able to work at a number of jobs prior to his 
 
            work at Mercy Hospital in spite of his vision loss, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            including construction work, lumber yard work, and office 
 
            work.  Claimant was able to perform his duties at Mercy 
 
            Hospital in spite of his vision loss.  
 
            The parties did not offer a rating under the AMA Guides to 
 
            the Evaluation of Permanent Impairment for claimant's vision 
 
            loss.  It is improper to speculate as to a rating of 
 
            impairment under the AMA Guides without evidence in the 
 
            record from an expert medical witness that utilizes the 
 
            Guides.  However, the agency's experience, technical 
 
            competence, and specialized knowledge may be utilized in the 
 
            evaluation of evidence to determine claimant's disability as 
 
            a result of his vision loss.  Iowa Code section 17A.14(5).  
 
            Based on the evidence in the record, it is concluded that 
 
            claimant's congenital vision loss resulted in an impairment 
 
            of 60 percent of the whole person.
 
            It is therefore concluded that the compensable value of 
 
            Larry P. Shank's preexisting loss of vision is 300 weeks 
 
            under the provisions of Iowa Code sections 85.34(2)(s) and 
 
            85.64.
 
            WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            ORDER
 
            THEREFORE, it is ordered
 
            That the Second Injury Fund of Iowa pay Larry P. Shank 
 
            weekly compensation for permanent total disability at the 
 
            rate of one hundred sixty-five and 45/100 dollars ($165.45) 
 
            per week payable commencing three hundred four point five 
 
            (304.5) weeks after July 29, 1985 and continuing each week 
 
            thereafter for so long as Larry P. Shank remains totally 
 
            disabled.
 
            That the costs of this action are assessed against the 
 
            Second Injury Fund of Iowa pursuant to rule 343 IAC 4.33.
 
            That the Second Injury Fund of Iowa file claim activity 
 
            reports as requested by this agency pursuant to rule 343 IAC 
 
            3.1.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of September, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Channing L. Dutton
 
            Attorney at Law
 
            West Towers Office
 
            1200 35th Street Ste. 500
 
            West Des Moines, Iowa 50265
 
            
 
            Ms. Lorraine J. May
 
            Attorney at Law
 
            4th Floor Equitable Building
 
            Des Moines, Iowa 50309
 
            
 
            Ms. Shirley Ann Steffe
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      2602
 
                      Filed September 27, 1991
 
                      BYRON K. ORTON
 
                      MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LARRY P. SHANK,     :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 719627
 
            MERCY HOSPITAL MEDICAL CENTER,:
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            2602
 
            Appeal of remand decision determining extent of disability 
 
            caused by claimant's congenital vision loss for purposes of 
 
            Second Injury Fund credit.  No rating of impairment under 
 
            AMA Guides was put into the record.  Thus, claimant's vision 
 
            loss determined on factors such as claimant's need to wear 
 
            glasses, his corrected vision of 20/200, his placement at 
 
            Iowa Braille and Sightsaving School at age 5, his ability to 
 
            hold a job over several years in spite of his vision loss, 
 
            etc.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY P. SHANK,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         MERCY HOSPITAL MEDICAL CENTER,              File No. 719627
 
         
 
              Employer,                          A R B I T R A T I 0 N
 
         
 
         and                                        D E C I S I 0 N
 
         
 
         AETNA CASUALTY & SURETY CO.,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Larry P. 
 
         Shank against Mercy Hospital Medical Center, Aetna Casualty & 
 
         Surety Company and the Second Injury Fund of Iowa.  The case was 
 
         heard at Des Moines, Iowa, on June 19, 1987, and was fully 
 
         submitted upon conclusion of the hearing.  The record in the 
 
         proceeding consists of testimony from Larry P. Shank and 
 
         claimant's exhibits 1, 3, 4, 5 and 6.  The record also contains 
 
         what has been marked as defendants' exhibit A, a collection of 
 
         records from the Social Security Administration, which were 
 
         received into evidence upon the request of the Second Injury Fund 
 
         of Iowa.
 
         
 
                                      ISSUES
 
         
 
              The only issues presented for determination are the nature 
 
         and extent of claimant's permanent disability and the allocation 
 
         of the responsibility for its payment among the defendants.  The 
 
         occurrence of injury arising out of and in the course of 
 
         employment was stipulated.  The healing period was stipulated to 
 
         have been paid in full by the employer, a total of 100.143 weeks 
 
         with the healing period ending on January 21, 1985.  It was 
 
         further stipulated that the employer had paid a total of 27.875 
 
         weeks of permanent partial disability benefits to claimant for 
 
         his right lower extremity and 4.5 weeks of permanent partial 
 
         disability for claimant's left foot.  The employer and claimant 
 
         stipulated that claimant had a three percent disability of the 
 
         left foot, based upon an injury of August 17, 1979 and a 10% 
 
                                                
 
                                                         
 
         impairment to the right lower extremity as a result of the injury 
 
         of November 15, 1982, which resulted in an entitlement of 22 
 
         weeks of compensation at the stipulated rate of $165.45 per week. 
 
          The Second Injury Fund of Iowa did not fully join in those 
 
         stipulations.
 
         
 
                                REVIEW OF EVIDENCE
 
         
 
              The following is only a brief summary of pertinent evidence. 
 
          All evidence received at the hearing was considered when 
 
         deciding the case even though it may not necessarily be referred 
 
         to in this decision.
 
         
 
              Claimant testified that he was born on April 28, 1947.  He 
 
         resides in Prairie City, Iowa with his wife, Carla, who is a 
 
         registered nurse at Des Moines General Hospital.  Claimant has no 
 
         children from his current marriage, but does have two children 
 
         from a prior marriage.
 
         
 
              Claimant is a 1966 graduate of the Iowa Braille and 
 
         Sightsaving School in Vinton, Iowa.  He testified that he was 
 
         born with congenital cataracts in both eyes and was placed at the 
 
         school at age five by his father.  Claimant testified that, with 
 
         corrected vision, his eyes test at 20/200 and that he is unable 
 
         to read without glasses.  Claimant related that he does not know 
 
         the rating for his uncorrected vision.  He testified that he has 
 
         two pair of glasses, one for seeing at a distance and another for 
 
         close work.  He appeared at hearing with two pair of extremely 
 
         thick glasses.  Claimant testified that he does not have an Iowa 
 
         driver's license because he cannot see well enough to obtain one.  
 
         Claimant testified that his current primary source of income is 
 
         Social Security disability benefits which were awarded to him 
 
         based solely upon his eye condition.  He testified that his eye 
 
         problem has not changed over the years and that he could have 
 
         always qualified for Social Security disability, but chose to 
 
         work and would much rather be working.
 
         
 
              Claimant testified that his vision problems did not limit 
 
         him in his employment at Mercy and that they do not interfere 
 
         much with his day-to-day living.
 
         
 
              Claimant testified that, while in high school, he worked at 
 
         a number of jobs.  He operated a jackhammer on a construction 
 
         crew when he was approximately age 19, he worked at a lumber yard 
 
         where he unloaded box cars and he worked in the principal's 
 
         office at his school.  Claimant testified that he came to Des 
 
         Moines from Ottumwa, Iowa, the area of his home, planning to go 
 
         to California, obtained what he thought would be a temporary job 
 
         at Mercy in order to accumulate money for the trip, but ended up 
 
         staying in that employment.  Claimant had been employed at Mercy 
 
         since August 1, 1966.
 
              Claimant worked as an orderly assisting nursing personnel.  
 
         He related that he did some record keeping, but that 98% of his 
 
         working time was spent on his feet.
 
         
 
                                                
 
                                                         
 
              Claimant testified that, in August, 1979, while 
 
         participating at a dog show at the Iowa State Fair, he 
 
         experienced a pain in his left heel.  He continued to work, but 
 
         eventually sought medical treatment which included a surgical 
 
         tarsal tunnel decompression of his left lower extremity performed 
 
         by J. D. Bell, D.O., in November, 1979.  Claimant returned to 
 
         work as an orderly in March, 1980.
 
         
 
              Late in 1982, claimant began to develop problems with his 
 
         right foot.  He again sought medical treatment and eventually 
 
         underwent a right tarsal tunnel release in January, 1983.  
 
         Claimant had a slow recovery due to infection and pain.  He 
 
         returned to work on September 17, 1984, but worked for only three 
 
         days.
 
         
 
              Since September 19, 1984, the last day claimant worked at 
 
         Mercy, he has engaged in various activities.  Claimant has cared 
 
         for and showed his own dogs and worked in a kennel.  He obtained 
 
         a job briefly as a pet groomer, but did not have the knowledge 
 
         necessary to hold the position.  He has performed house sitting 
 
         and dog care.  He actively engages in showing Samoyed dogs.  
 
         Claimant has completed a veterinary assistant correspondence 
 
         course.
 
         
 
              Claimant's recovery from the 1983 surgery on his right foot 
 
         was complicated by continued complaints of pain.  He was 
 
         evaluated by a number of physicians, namely, William R. Boulden, 
 
         M.D., Robert F. Breedlove, M.D., Joshua Kimelman, D.O., and 
 
         Kenneth A. Johnson, M.D., as well as the treating physician, J. 
 
         D. Bell, D.O. (exhibit 1, pages 1-26 and 44-51).  The general 
 
         consensus of the physicians was that claimant had a probable 
 
         reflex sympathetic dystrophy syndrome in his right lower 
 
         extremity.  He was also diagnosed as having a Morton's neuroma 
 
         between his third and fourth toes, a neuroma at the site of 
 
         surgery and scarring on the nerve at the site of the surgery.  
 
         Dr. Bell rated a three percent impairment of claimant's left foot 
 
         (exhibit 1, page 12).  No other physician has assigned any 
 
         impairment rating to the left foot.  All indications from the 
 
         other physicians are that claimant had an excellent result from 
 
         the surgery on his left lower extremity.  Dr. Breedlove indicated 
 
         that claimant had no permanency in the left foot (exhibit 1, page 
 
         46).  Dr. Boulden rated claimant as having a 10% impairment of 
 
         his right lower extremity and indicated that claimant needed to 
 
         change his type of work to a sedentary occupation (exhibit 1, 
 
         pages 3, 4 and 7).
 
         
 
              During the course of recovery, claimant attended the Mercy 
 
         Pain Center under the directions of James L. Blessman, M.D.  The 
 
         notes made upon his admission indicate that he had excellent 
 
         results from his left tarsal tunnel surgery (exhibit 1, pages 59 
 
         and 65).  When claimant was discharged, it was indicated that he 
 
         would be expected to return to work at full duty without 
 
         restrictions within three weeks, even though he continued to 
 
         complain of pain in his right foot (exhibit 1, pages 63 and 64).  
 
         Claimant's return to work did not occur within that three-week 
 
                                                
 
                                                         
 
         interval and, as previously indicated, when he did finally return 
 
         to work, it was for only three days.
 
         
 
              Claimant testified that, since leaving Mercy, he has 
 
         interviewed for other jobs, including home health care nursing 
 
         assistant, parking lot attendant and surgical laboratory animal 
 
         assistant, but that none of them were offered to him.  He 
 
         testified that currently he spends a lot of his time as a house 
 
         husband where he cleans, mows the yard and takes care of his 
 
         hobby, a kennel of Samoyed dogs, of which he currently has six.  
 
         Claimant testified that, in order for him to obtain any 
 
         employment, it would have to be at a time where he could ride to 
 
         and from work with his wife or for which other transportation 
 
         arrangements could be made.
 
         
 
              Claimant testified that currently his left ankle and foot 
 
         are not 100% well, but that he gets around on it without much 
 
         difficulty.  He testified that his right foot is the primary 
 
         problem.  He stated that, after standing, he experiences a sharp, 
 
         burning pain and that the foot swells and discolors to a purplish 
 
         or bruised color.
 
         
 
              A report from Russell H. Watt, M.D., of the Wolfe Clinic in 
 
         Marshalltown, Iowa, indicated that claimant's ocular diagnoses 
 
         are: (1) aphakia OU following surgery for congenital cataracts, 
 
 
 
                   
 
                                                         
 
         (2) congenital nystagmus with reduced visual acuity OU, and (3) 
 
         left exotropia and amblyopia (exhibit A, page 70).  In connection 
 
         with claimant's claim for Social Security disability benefits, he 
 
         was examined by David S. Dwyer, M.D., who reported in part as 
 
         follows:
 
         
 
              The patient's visual acuity with his present aphakic 
 
              glasses was 20/200, Jaeger 7 in the right eye and count 
 
              fingers at four feet in the left eye.  Repeat 
 
              refraction did not improve the visual acuity in either 
 
              eye.  Goldmann visual fields were relatively normal in 
 
              the right eye but showed slight superior nasal and 
 
              inferior nasal peripheral field loss in the left eye.  
 
              External exam showed a small amplitude rapid pendular 
 
              nystagmus which varied from vertical to horizontal.  
 
              Pupils were equal and reactive.  Extraocular motility 
 
              exam showed an -pattern left exotropia.  Slit lamp 
 
              examination showed small but clear cornea in each eye.  
 
              Anterior chambers were clear and deep in each eye.  
 
              Both eyes showed dense white remnants of the congenital 
 
              cataracts with clear optical axes, giving a good view 
 
              of the anterior vitreous cavity.  Intraocular pressures 
 
              were normal at 18 in the right eye and 19 in the left 
 
              eye.  Funduscopic examination of each eye was very 
 
              difficult due to the small opening in each congenital 
 
              cataract combined with the patientOs nystagmus.  
 
              However, the optic nerve appeared relatively normal in 
 
              the right eye.
 
         
 
              This patient has severe amblyopic, worse in the left 
 
              eye, secondary to bilateral congenital cataracts which 
 
              were surgically treated when the patient was five years 
 
              of age.  I would not anticipate any significant 
 
              increase in his vision in the foreseeable future.
 
         
 
              Claimant was evaluated by Charles A. Ross, M.D., who stated 
 
         that claimant's best corrected vision is 20/200 bilaterally 
 
         (exhibit A, page 89).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries to his lower extremities which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The evidence from Drs. Bell and Boulden and elsewhere in the 
 
         record stands uncontradicted.  It is clear that claimant did 
 
         sustain injuries to both of his lower extremities as a result of 
 
         his employment at Mercy Hospital Medical Center.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries to his lower extremities are 
 
         causally related to the disability on which he now bases his 
 
                                                
 
                                                         
 
         claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W. 2d 128 (1967).
 
              The stipulation regarding permanent partial impairment of 
 
         claimant's left foot is made in a setting of conflicting 
 
         evidence.  Claimant's complaints regarding his left foot were 
 
         quite minimal.  Dr. Breedlove determined that the foot had no 
 
         permanent impairment, while Dr. Bell imposed a three percent 
 
         permanent impairment rating.  Throughout the medical records, the 
 
         result from the surgery on the left foot is characterized as 
 
         excellent and the record characterizes claimant as having no 
 
         further symptoms in the left foot.  It is therefore found that 
 
         the August 17, 1979 injury to claimant's left foot did not 
 
         produce any permanent partial disability, as urged by the Fund.
 
         
 
              Claimant's right lower extremity is the source of his 
 
         continuing complaints and seems to be the physical ailment which 
 
         has prevented him from returning to employment with Mercy 
 
         Hospital Medical Center.  Dr. Boulden initially imposed a 10% 
 
         impairment rating, but later reduced it to seven percent.  Dr. 
 
         Boulden also had recommended that claimant seek sedentary 
 
         employment.  Dr. Blessman had released claimant to return to full 
 
         activity.  The opinion expressed by Dr. Boulden is accepted as 
 
         correct since claimant clearly does have a diagnosed, objectively 
 
         determinable condition in his right foot which provides a solid 
 
         basis for his complaints.  The impairment rating of 10% of the 
 
         right lower extremity, as stipulated by the parties and as 
 
         supported by the early reports from Dr. Boulden, is accepted as 
 
         correct.  It is therefore found that the injury of November 15, 
 
         1982 produced a 10% permanent impairment of claimant's right 
 
         leg.
 
         
 
              It has been stipulated by claimant that he has received all 
 
         healing period compensation which is due for both injuries and 
 
         that the date for commencement of permanent partial disability 
 
         compensation is January 22, 1985.  As stipulated by the parties 
 
         in the prehearing report, Mercy Hospital Medical Center has paid 
 
         all permanent partial disability compensation that is due for a 
 
                                                
 
                                                         
 
         scheduled member injury to claimant's right leg under the 
 
         provisions of section 85.34(2)(o).
 
         
 
              The Second Injury Fund of Iowa contends that, where both 
 
         injuries to scheduled members as specified in Code section 85.64 
 
         occur in the employ of the same employer, the Second Injury Fund 
 
         should not be held responsible because the purpose of the Second 
 
         Injury Fund legislation is to encourage the hiring of individuals 
 
         who are handicapped or partially disabled.  First, if there was 
 
         no Second Injury Fund legislation, a scheduled member injury 
 
         would make the employer of an employee with a pre-existing 
 
         permanent partial scheduled member disability responsible for 
 
         payment of only the scheduled member benefits, the same as occurs 
 
         under the Second Injury Fund statute.  This case does not deal 
 
         with a most recent injury being one that is to the body as a 
 
         whole and a discussion of how to allocate responsibility in that 
 
         type of case is unnecessary.  The Second Injury Fund legislation 
 
         makes it overwhelmingly clear that the liability of Mercy 
 
         Hospital Medical Center is payment of healing period, section 
 
         85.27 benefits and payment of the scheduled member permanent 
 
         partial disability resulting from the injury, all of which has 
 
         previously been paid.  Graves v. Eagle  Iron Works, 331 N.W.2d 
 
         116 (Iowa 1983); Second Injury Fund v. Mich Coal Co., 274 N.W.2d 
 
         300 (Iowa 1979); Anderson v. Second Injury Fund, 262 N.W.2d 789 
 
         (Iowa 1978); Irish v. McCreary Saw Mill, 175 N.W.2d 364 (Iowa 
 
         1970); Fulton v. Jimmy Dean Meat Co., file number 755039, appeal 
 
         decision July 23, 1986; Estep v. State Workmen's Comp. CommOr., 
 
         298 S.E.2d 142 (W. Va. 1982).
 
         
 
              The Second Injury Fund also contends that claimant has 
 
         failed to meet the requirements for qualifying to receive Second 
 
         Injury Fund compensation as set forth in the case Anderson v. 
 
         Second Injury Fund, 262 N.W.2d 789 (Iowa 1978).  Claimant clearly 
 
         has a partial loss of use of his right foot and leg as a result 
 
         of the 1982 injury.  The Fund correctly contends that the 1979 
 
         injury to claimant's left foot did not produce any permanent loss 
 
         of the use of that foot.  The Fund overlooks, however, claimant's 
 
         visual problems.  Claimant receives Social Security disability 
 
         benefits, apparently based solely upon his visual impairment.  He 
 
         testified that he is considered to be legally blind and that his 
 
         vision is insufficient, even with the best available corrective 
 
         lenses, to permit him to obtain an Iowa driver's license.  The 
 
         source of the preexisting disability is of no importance so long 
 
         as it is permanent and acts as a hindrance to the individual's 
 
         ability to obtain and retain effective employment.  Anderson v. 
 
         Second Injury Fund, 262 N.W.2d 789 (Iowa 1978).  It is accepted, 
 
         as a matter of law, that a person who is legally blind has a 
 
         handicap.  The record in this case indicates that claimant's 
 
         visual handicap originated from congenital cataracts.  There is 
 
         no indication in the record that the condition has ever changed 
 
         appreciably and Dr. Dwyer has indicated that he would not 
 
         anticipate any significant increase in claimant's vision in the 
 
         foreseeable future (exhibit A, page 88).  Clearly, claimant's 
 
         visual handicap is permanent.
 
         
 
                                                
 
                                                         
 
              The degree of claimant's visual impairment is not easily 
 
         determined from the record that has been made in this case.  Drs. 
 
         Ross and Dwyer have indicated that his corrected vision is 20/200 
 
         bilaterally (exhibit A, pages 88 and 89).  He has been diagnosed 
 
         as having aphakia, nystagmus and left exotropia and amblyopia 
 
         (exhibit A, page 70).  Claimant's right eye near vision was 
 
         evaluated as being Jaeger 7 while his left eye was rated in a 
 
         manner which stated "count fingers at four feet in the left eye" 
 
         (exhibit A, page 88).  The examination from Dr. Dwyer went on to 
 
         indicate that the visual fields were relatively normal in 
 
         claimant's right eye, but slightly impaired in the left eye.  
 
         Other abnormalities were noted in the June 13, 1986 report.
 
         
 
              Visual impairment is covered in Chapter 6 of the Guides to 
 
         the Evaluation of Permanent Impairment, Second Edition, issued 
 
         by the American Medical Association.  Using the guides, as 
 
         permitted by Division of Industrial Services Rule 343-2.4, it 
 
         appears that the 20/200 rating for distance would provide an 80% 
 
         loss of visual acuity as shown in table 1 at page 142.  The 
 
         Jaeger 7 rating would appear to give a near rating of 14/40 with 
 
         a 55% loss of visual acuity as shown in the lower portion of 
 
         table 1 at page 142.  Applying the 20/200 and 14/40 to table 2 -- 
 
         Loss of Central Vision in Percentage -- as found on page 143, the 
 
         result would be an 84% impairment of vision, since the records 
 
         clearly show claimant to be afflicted with aphakia.
 
         
 
              The undersigned is unable to make similar computations with 
 
         regard to the central vision of claimant's left eye, but it 
 
         appears that the left eye is even more impaired than the right 
 
         since no Jaeger rating was given and the only rating for the left 
 
         eye was "count fingers at four feet."  The left eye also showed 
 
         an impaired visual field, although no numerical rating of the 
 
         impairment is contained in the reports.
 
 
 
                    
 
                                                         
 
         
 
              Moving on to page 147, there is found a directive concerning 
 
         the method of determining the impairment of the whole person as 
 
         contributed by the visual system.  Applying what is known about 
 
         claimant's right eye would provide an 84% loss of central vision 
 
         and a 0% loss of visual field.  Combining the two using the 
 
         combined values chart found at pages 240-242 produces an 84% loss 
 
         of vision in the right eye.  Claimant's left eye cannot be 
 
         evaluated under the record made, but it is even more impaired 
 
         than the right eye.  If the impairment of the left eye is assumed 
 
         to be the same as the impairment of the right, the result would 
 
         be an 84% impairment of the visual system when the computations 
 
         provided on page 147 are made.  Table 6 at page 151 shows an 84% 
 
         impairment of the visual system to be equivalent to a 79% 
 
         impairment of the whole person.  It is that impairment which 
 
         preexisted claimant's employment at Mercy Hospital Medical 
 
         Center.  It is that impairment which provides the first scheduled 
 
         member loss and which is the basis for imposing Second Injury 
 
         Fund liability in this case.
 
         
 
              The statute does not clearly direct whether the value of the 
 
         preexisting visual impairment should be determined under sections 
 
         85.34(2)(p) and (q), rather than section 85.34(2)(s).  The loss 
 
         in both eyes apparently occurred at the same time, but did not 
 
         result from a single accident.  Construing the statute in the 
 
         light most favorable to the injured worker mandates computing the 
 
         compensable value to be deducted under sections 85.34(2)(p) and 
 
         (q) which provides 340 weeks of benefits for loss of both eyes 
 
         rather than the 500 weeks provided by section 85.34(2)(s).  The 
 
         result is 285.6 weeks (84% loss times 340 weeks equals 285.6 
 
         weeks) to be deducted for claimant's prior visual impairment and 
 
         22 weeks for the 10% impairment of the right leg, providing a 
 
         total of 307.6 weeks to be deducted.  The employer has paid its 
 
         22 weeks and the balance remaining to be deducted is the 285.6 
 
         weeks representing the visual impairment.
 
         
 
              Since Second Injury Fund liability has been determined, 
 
         claimant's industrial disability must be evaluated.  Industrial 
 
         disability was defined in Diederich v. Tri-City Railway Co., 219 
 
         Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is 
 
         therefore plain that the legislature intended the term 
 
         'disability' to mean 'industrial disability' or loss of earning 
 
         capacity and not a mere 'functional disability' to be computed in 
 
         the terms of percentages of the total physical and mental ability 
 
         of a normal man.O
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Larry P. Shank has an 84% permanent partial impairment of 
 
                                                
 
                                                         
 
         visual system.  He has a 10% impairment of the right lower 
 
         extremity as a result of the 1982 injury.  Shank testified that 
 
         he could have qualified for Social Security permanent disability 
 
         benefits on the basis of his eyes alone at all times throughout 
 
         his life, but that he only recently applied for and received 
 
         those benefits because he preferred working.  Shank has now 
 
         chosen to receive disability benefits rather than to engage in 
 
         gainful employment.  The problems with his right foot and ankle 
 
         are a quite significant factor in his decision.  Most sedentary 
 
         employments involve a great deal of visual acuity, namely 
 
         reading.  The visual impairment indicates that claimant would not 
 
         be well-suited to most sedentary employments.
 
         
 
              All of claimant's prior employments, except whatever work he 
 
         actually performed in the school office, involved being on his 
 
         feet.  This is something which he can no longer do.
 
         
 
              Shank was arguably what could have been termed an odd-lot 
 
         employee as the status is described in the case Guyton v. Irving 
 
         Jensen Co., 373 N.W.2d 101 (Iowa 1985) based solely upon his 
 
         visual impairment prior to the time he commenced work at Mercy.  
 
         The injury to his right ankle has not increased his earning 
 
         capacity.  Larry Shank is excluded from most occupations by his 
 
         visual problems.  He is excluded from occupations which involve 
 
         substantial standing or walking by the problem with his right 
 
         foot and leg.  The test of permanent total disability in a 
 
         workers' compensation case has long been established and may be 
 
         summarized as follows:  When the combination of the factors 
 
         considered in determining industrial disability precludes the 
 
         worker from obtaining regular employment in which he can earn a 
 
         living for himself, his disability is a total disability.  Guyton 
 
         v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985); McSpadden 
 
         v. Big Ben Coal Co., 282 N.W.2d 181, 192 (Iowa 1980); Diederich 
 
         v. Tri-City R. Co. 219 Iowa 587, 594 258 N.W. 899, 902 (1935).  
 
         Claimant, in his brief, urged that his visual handicap was 
 
         minimal.  Any visual handicap which is sufficiently severe as to 
 
         prevent a person from being able to obtain a driver's license and 
 
         which qualifies him for Social Security disability benefits is 
 
         not minimal or insignificant.  Claimant, much to his credit, 
 
         worked in spite of his handicap.  He found a niche in the labor 
 
         market into which he could fit and function.  The fact that he 
 
         was able to find that niche does not indicate that he had broad 
 
         access to the labor market.  It is simply a demonstration of the 
 
         fact that nearly anyone, regardless of their physical condition, 
 
         can find gainful employment if all of the surrounding 
 
         circumstances are right.  It simply demonstrates that claimant 
 
         found one of the few jobs for which he was suited.  His injury to 
 
         his right foot and leg has made him unsuited for that job and, 
 
         probably, for most of the others for which he had previously been 
 
         suited.  Claimant's previous choices were to live the life of the 
 
         totally disabled or to live as normal a life as was possible in 
 
         spite of his handicap.  The fact that he chose the latter and was 
 
         somewhat successful in overcoming the handicap does not erase or 
 
         absolve that very substantial handicap.
 
         
 
                                                
 
                                                         
 
              Since the injury to his right foot and leg, claimant has 
 
         attained some additional educational achievement.  He has 
 
         attempted employments, but was unsuccessful.  It is found and 
 
         concluded that Larry P. Shank is permanently and totally disabled 
 
         within the meaning of the Iowa Workers' Compensation statutes and 
 
         that he is entitled to compensation for permanent total 
 
         disability under the provisions of section 85.34(3) for the 
 
         period of that disability.
 
         
 
              At the commencement of the hearing, the Second Injury Fund 
 
         indicated that it was seeking a credit under the second 
 
         unnumbered paragraph of section 85.64.  The only evidence in the 
 
         record, however, was that the benefits claimant receives are from 
 
         Social Security disability and that claimant, through his 
 
         employment, contributed directly toward Social Security.  
 
         Accordingly, no credit is allowable.  It seems somewhat 
 
         illogical, in view of the remedial nature of the Second Injury 
 
         Fund legislation, that its benefits be used as an offset to 
 
         reduce Social Security disability payments, rather than vice 
 
         versa, but that is the result under the statute as it was enacted 
 
         (exhibit A, page 96).
 
         
 
              In the prehearing report, it is indicated that the employer 
 
         is entitled to full credit for group plan benefits under the 
 
         provision of section 85.38(2) and claimant stipulated to that 
 
         entitlement.  The stipulation is clearly correct and is 
 
         approved.
 
         
 
              In those cases where the industrial disability is less than 
 
         permanent and total, a deduction is taken from the industrial 
 
         disability award for the total amount of compensation that would 
 
         be due for the scheduled member injuries and the Fund commences 
 
         payment of the balance upon completion of the employer's 
 
         permanent partial disability payments.  Where an award is for 
 
         less than permanent and total disability, it is conditioned upon 
 
         a finding that the individual is still capable of supporting 
 
         himself or herself and the award of permanent partial disability 
 
         is, in essence, an award of damages.  The concept of industrial 
 
         disability is quite similar to impairment of earning capacity, an 
 
         element of damages in tort cases.  It is clearly consistent and 
 
         rational with the intent of the workers' compensation system to 
 
         deduct from the permanent partial disability award, the amount of 
 
         the damages which are attributable to the preexisting 
 
         disability.
 
         
 
              The underlying premise for awarding permanent total 
 
         disability benefits is that the individual is unable to be 
 
         self-supporting.  An award of permanent total disability is 
 
         intended to give the person a means of sustenance because the 
 
         person is unable to sustain himself or herself through gainful 
 
         employment.  The statute does not direct how the deduction is to 
 
         be taken in cases of permanent total disability.
 
         
 
              There are a number of rules of construction which must be 
 
         applied.  The ultimate goal is to determine and effectuate the 
 
                                                
 
                                                         
 
         intent of the legislature.  Iowa Beef Processors, Inc. v. Miller, 
 
         312 N.W.2d 530, 532 (Iowa 1981); American Home Products Corp. v. 
 
         Iowa State Board of Tax Review, 302 N.W.2d 140, 142 (Iowa 1981).  
 
         One must look to the object to be accomplished, the mischief to 
 
         be remedied, or the purpose to be served, and place on the 
 
         statute a reasonable or liberal construction which will best 
 
         effect, rather than defeat, the legislature's purpose.  City of 
 
         Mason City v. Public Employment Relations Board, 316 N.W.2d 851, 
 
         854 (Iowa 1982); Patters v. City of Des Moines, 299 N.W.2d 675, 
 
         678 (Iowa 1980).  Strained, impractical or absurd results are to 
 
         be avoided in favor of a sensible, logical construction.  Ida 
 
         County Courier and The Reminder v. Attorney General, 316 N.W.2d 
 
         846, 851 (Iowa 1982); Iowa Beef Processors, Inc., 312 N.W.2d at 
 
         532.  All parts of the statute are to be considered together, 
 
         without attributing undue importance to any single or isolated 
 
         portion.  Iowa Beef Processors, Inc., supra; Peffers, supra.  The 
 
         spirit of the statute must be considered along with its words, 
 
         Hansen v. State, 298 N.W.2d 263, 265 (Iowa 1980), and the 
 
         manifest intent of the legislature will prevail over the literal 
 
         import of the words used.  Iowa Beef Processors, Inc., supra.  
 
         Legislation should be given a rational, workable meaning.  Iowa 
 
         Department of Transportation v. Nebraska-Iowa Supply Co., 272 
 
         N.W.2d 6, 11 (Iowa 1978).  The legislature is presumed to not 
 
         intend to overturn long established principles of law unless its 
 
         intention to do so is clearly expressed, necessarily implied or 
 
         no other construction can be reasonably made.  Wilson v. Iowa 
 
         City, 165 N.W.2d 813 (Iowa 1969).  The policy is to liberally 
 
         construe workers' compensation statutes in favor of the worker. 
 
         Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 
 
         1981); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 188 (Iowa 
 
         1980).  The Workers' Compensation Act is to be construed to 
 
         provide benefits to all who can fairly be brought within its 
 
         coverage.  Usgaard v. Silver Crest Golf Club, 256 Iowa 453,  459, 
 
 
 
                    
 
                                                         
 
         127 N.W.2d 636, 639 (1964).  Its beneficent purpose is not to be 
 
         defeated by reading something into it that is not there.  Cedar 
 
         Rapids Community School v. Cady, 278 N.W.2d 298 (Iowa 1979).  
 
         Nevertheless, the requirements of the statute are controlling.   
 
         Halstead v. Johnson's Texaco, 264 N.W.2d 757, 759 (Iowa 1978).  
 
         It is generally presumed that statutory words are used in their 
 
         ordinary and usual sense with the meaning commonly attributed to 
 
         them.  American Home Products Corp., supra.
 
         
 
              The only practical way the deduction for the previously lost 
 
         member or organ can be accomplished is to impose a waiting 
 
         period, in this case 285.6 weeks (approximately 5 1/2 years) 
 
         between the completion of the employer's payments and 
 
         commencement of payments from the Fund.  Hickson v. W. A. Klinger 
 
         Co., Inc. and Second Injury Fund.  I Iowa Industrial Commissioner 
 
         Report 141 (1980); Asay v. Industrial Engineering Equipment 
 
         Company and Second Injury Fund, 33rd biennial Report 224 (1977).  
 
         If payments from the Fund were, in this case, commenced upon 
 
         completion of the employer's payments, as is done in cases of 
 
         permanent partial disability, the statutory deduction could never 
 
         actually be taken.  In this case, claimant has Social Security 
 
         disability and a working wife to support him until benefits from 
 
         the Fund commence.  It is likely that he could survive 
 
         indefinitely without the payments from the Fund if he can survive 
 
         for nearly 5 1/2 years without them.  The undersigned is not at 
 
         liberty to enter a ruling that is contrary to the cited agency 
 
         precedents.  The Supreme Court has not yet addressed the issue. 
 
         (See also 2 Larson Workmen's Compensation Law, SS59.34.)
 
         
 
              The employer paid permanent partial disability compensation 
 
         for 27.857 weeks commencing January 22, 1985.  If further 
 
         permanent disability benefits from the Fund were commenced 
 
         immediately, the date for commencement would be July 29, 1985.  
 
         Two hundred eighty-five point six weeks after July 29, 1985 is 
 
         January 12, 1991.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Larry P. Shank is a 39-year-old man with a history of 
 
         congenital cataracts which have produced an 84% impairment of his 
 
         vision which is equivalent to a 79% impairment of the whole man.
 
         
 
              2.  In spite of his visual impairment, Shank was employed 
 
         for nearly 20 years by Mercy Hospital Medical Center as an 
 
         orderly.
 
         
 
              3.  Claimant's employment at Mercy produced injury to his 
 
         right leg and has left him with a 10% permanent functional 
 
         impairment of the right leg.
 
         
 
              4.  Claimant's injury to his right leg has left him unable 
 
         to engage in employment which requires extended standing or 
 
         otherwise being on his feet and the recommendation from Dr. 
 
         Boulden that he change to a sedentary occupation is correct.
 
         
 
                                                
 
                                                         
 
              5.  Claimant is a credible witness whose description of his 
 
         symptoms and complaints is accepted as correct.  He is a highly 
 
         motivated individual who would prefer to be employed rather than 
 
         drawing disability compensation, as evidenced by his work 
 
         history.
 
         
 
              6.  When all the applicable factors of industrial disability 
 
         and earning capacity are considered, Larry P. Shank does not have 
 
         sufficient residual earning capacity in order to be 
 
         self-supporting.
 
         
 
              7.  The injury to claimant's left foot did not produce any 
 
         permanent disability.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  Claimant's cataract condition in his eyes constitutes a 
 
         previous loss within the meaning of section 85.64.
 
         
 
              2.  The injury to claimant's right foot and leg, which arose 
 
         out of and in the course of his employment at Mercy Hospital 
 
         Medical Center, produced a permanent loss of use of that leg 
 
         within the meaning of section 85.64.
 
         
 
              3.  The injury to claimant's right leg was limited to the 
 
         leg and did not extend into the body as a whole and the 
 
         employer's liability for compensation for permanent disability is 
 
         limited to that provided by section 85.34(2)(o).
 
         
 
              4.  Where two methods of computing the compensable value of 
 
         the previously lost member or organ are available, the method 
 
         most favorable to the worker should be used.
 
         
 
              5.  Larry P. Shank is permanently and totally disabled 
 
         within the meaning of section 85.34(3) of The Code.
 
         
 
              6.  Where an award of permanent total disability is made, 
 
         there is an interruption of payments to deduct the compensable 
 
         value of the previously lost member or organ since the only way 
 
         to actually accomplish the deduction is to delay the commencement 
 
         of the payments from the Second Injury Fund of Iowa.
 
         
 
              7.  The Second Injury Fund of Iowa is responsible for 
 
         payment of compensation for permanent total disability benefits 
 
         commencing January 12, 1991, a date 285.6 weeks after July 29, 
 
         1985, the date Mercy Hospital Medical Center completed payment of 
 
         its permanent partial disability benefits.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that the Second Injury Fund of Iowa 
 
         pay claimant weekly compensation for permanent total disability 
 
         at the rate of one hundred sixty-five and 45/100 dollars 
 
         ($165.45) per week payable commencing January 12, 1991 [two 
 
         hundred eighty-five point six (285.6) weeks after July 29, 1985] 
 
                                                
 
                                                         
 
         and continuing each week thereafter for so long as Larry P. Shank 
 
         remains permanently and totally disabled.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against the Second Injury Fund of Iowa pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that Claim Activity Reports be filed 
 
         as requested by this agency pursuant to Division of Industrial 
 
         Services Rule 343-3.1.
 
         
 
         
 
               Signed and filed this 21st day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       MICHAEL G. TRIER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Channing L. Dutton
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th Street, Suite 500
 
         P.O. Box 65355
 
         West Des Moines, Iowa 50265
 
         
 
         Ms. Lorraine J. May
 
         Attorney at Law
 
         Fourth Floor, Equitable Building
 
         Des Moines, Iowa 50309
 
         
 
         Ms. Shirley A. Steffe
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa 50319
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1804, 3202, 3203
 
                                              Filed January 21, 1988
 
                                              MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY P. SHANK,
 
         
 
              Claimant,
 
         
 
         vs.                                         File No. 719627
 
         
 
         MERCY HOSPITAL MEDICAL CENTER,          A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY CO.,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         
 
         1804, 3202, 3203
 
         
 
              Claimant, who was legally blind, had obtained and held 
 
         employment as a hospital orderly for nearly 20 years.  Due to an 
 
         injury to his right foot and leg, he was restricted to sedentary 
 
         employment.  Claimant was found to be permanently and totally 
 
         disabled.  The employer was held responsible for the scheduled 
 
         member disability to the foot and leg and the Second Injury Fund 
 
         of Iowa was held responsible for payment of permanent total 
 
         disability compensation.  A deduction was taken for claimant's 
 
         84% visual impairment (which was determined under the AMA guides 
 
         to be equal to 79% of the whole man).  The deduction was 
 
         determined under section 85.34(2)(p) and (q) totalling 285.6 
 
         weeks rather than under section 85.34(2)(s) which would provide 
 
         395 weeks.  It was held that, where permanent total disability 
 
         exists, there is no practical means to deduct the preexisting 
 
         scheduled disability other than to delay commencement of 
 
         benefits, in this case for a period of nearly 5 1/2 years.
 
         
 
         
 
 
 
 
 
 
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY P. SHANK,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :
 
            MERCY HOSPITAL MEDICAL CENTER,:         File No. 719627
 
                                          :
 
                 Employer,                :           R E M A N D
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            AETNA CASUALTY & SURETY CO.,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 The above entitled matter was remanded to the 
 
            undersigned in an appeal decision entered August 28, 1989.  
 
            The case was remanded for further proceedings limited to the 
 
            question of the extent of claimant's present disability 
 
            caused by claimant's congenital vision loss.  All parties to 
 
            the proceeding were given the opportunity to introduce 
 
            additional evidence dealing with the extent of claimant's 
 
            vision loss.  All parties declined to introduce any further 
 
            evidence into the record upon that issue.
 
            
 
                 Since the objective measurements from the physicians 
 
            who have evaluated claimant's vision cannot be applied under 
 
            Division of Industrial Services Rule 343-2.4 by the 
 
            undersigned through the AMA guides, it is necessary to 
 
            determine the loss of vision subjectively.  Claimant is able 
 
            to perform some functions, albeit in a limited manner.  His 
 
            loss of vision is severe.
 
            
 
                 It is therefore found that Larry P. Shank has an 85 
 
            percent loss of use of both eyes as a result of the
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            congenital cataract condition which afflicted him at and 
 
            prior to the time of the injury to his right leg and foot.  
 
            It is further found that the 85 percent loss of the use of 
 
            both eyes is equivalent to an 80 percent loss of use of the 
 
            whole person.
 
            
 
                 It is therefore concluded that the compensable value of 
 
            Larry P. Shank's preexisting loss of vision is 400 weeks 
 
            under the provisions of Iowa Code sections 85.34(2)(s) and 
 
            85.64.
 
            
 
                 It is further concluded, pursuant to the Appeal 
 
            Decision entered August 26, 1989, that the compensable value 
 
            of the three percent prior loss of claimant's left foot is 
 
            4.5 weeks under the provisions of Iowa Code sections 
 
            85.34(2)(n) and 85.64.  The total compensable value of 
 
            Shank's prior losses is 404.5 weeks.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that the Second Injury Fund of 
 
            Iowa pay Larry P. Shank weekly compensation for permanent 
 
            total disability at the rate of one hundred sixty-five and 
 
            45/100 dollars ($165.45) per week payable commencing April 
 
            30, 1994 [the date which is four hundred four point five 
 
            (404.5) weeks after July 29, 1985] and continuing each week 
 
            thereafter for so long as Larry P. Shank remains totally 
 
            disabled.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the Second Injury Fund of Iowa pursuant to 
 
            Division of Industrial Services Rule 343-4.33.
 
            
 
                 IT IS FURTHER ORDERED that the Second Injury Fund of 
 
            Iowa file claim activity reports as requested by this agency 
 
            pursuant to Division of Industrial Services Rule 343-3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Channing L. Dutton
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th Street, Suite 500 
 
            W. Des Moines, Iowa  50265
 
            
 
            Ms. Lorraine J. May
 
            Attorney at Law
 
            Fourth Floor, Equitable Building
 
            Des Moines, Iowa  50309
 
            
 
            Ms. Shirley Ann Steffe
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa  50319
 
            
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
          HAROLD A. HAGEN,               :
 
         
 
              Claimant,                  :
 
         
 
          VS. :                                       File No. 719962
 
         
 
          IOWA CONSERVATION COMMISSION, :                  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
 
         
 
          STATE OF IOWA,
 
         
 
                Insurance Carrier,
 
                Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening from an agreement 
 
         for settlement which was approved on April 17, 1985 which 
 
         provided claimant 15 percent permanent partial disability.  The 
 
         case was heard and fully submitted at Des Moines, Iowa on 
 
         December 15, 1989.  The record in the proceeding consists of 
 
         testimony from Harold A. Hagen, Ilene Hagen, Charles Kakac and 
 
         Robert McTaggart.  The record also contains jointly offered 
 
         exhibits 1 through 6 and claimant's exhibit 7.
 
         
 
                                      ISSUES
 
         
 
              Claimant asserts that there has been a change of condition 
 
         since the settlement was entered into.  He seeks additional 
 
         compensation for healing period, permanent partial disability and 
 
         payment of medical and transportation expenses under the 
 
         provisions of Code section 85.27.  He bases his claim upon his 
 
         psychological condition and an intestinal ulcer condition having 
 
         worsened unexpectedly since the settlement occurred.  The defense 
 
         contends that there has been nothing which has occurred which was 
 
         unanticipated at the time of the settlement.
 
         
 
         
 
         
 
         HAGEN v. IOWA CONSERVATION COMMISSION
 
         Page 2
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Harold A. Hagen is a 46-year-old married man who graduated 
 
         from high school in 1967.  His work history includes farming, 
 
         factory and construction work.  He has been employed by the Iowa 
 
         State Conservation Commission since 1970.  He is a Conservation 
 
         Worker.  His duties include helping to manage the 26,000-acre Red 
 
         Rock wildlife unit.  He engages in a wide variety of activities 
 
         such as planting trees, dealing with the public, operating a full 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         line of heavy equipment and supervising summer help.  His work 
 
         involves considerable lifting and physical activity which is 
 
         performed in all types of weather.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Hagen injured his back in 1982, returned to work and after 
 
         another incident in 1984 was hospitalized and underwent 
 
         chemonucleolysis (exhibit 1, page 30).  Following recuperation 
 
         from that procedure, he was rated as having an 18 percent 
 
         permanent impairment of the body as a whole.  His physicians felt 
 
         that the condition related back to the 1982 injury (exhibit 1, 
 
         page 172).
 
         
 
              While in the hospital for that procedure in 1984, claimant 
 
         became depressed and was observed to be crying at one point.  
 
         Since that time, the notes of his medical treatment contain a 
 
         series of references to conditions including anxiety, depression, 
 
         gastritis, ulcer and back pain.  His primary treating physician 
 
         has been Gregory Ingle, D.O., whose office is located at Prairie 
 
         City, Iowa (exhibit 1, pages 2-28).  Dr. Ingle's notes for much 
 
         of 1985 and 1986 contain few references to emotional complaints.  
 
         They do make reference to gastritis.  Commencing in February 
 
         1987, notations of depression and anxiety become more prevalent 
 
         (exhibit 1, pages 12-28).
 
         
 
              In March 1988, Dr. Ingle referred claimant for psychiatric 
 
         care.  He did not go to the psychiatrist to whom Dr. Ingle had 
 
         referred him.  Claimant went through the state Employee 
 
         Assistance Program and came under treatment from psychiatrist 
 
         Daniel R. Francis, D.O., and Robert McTaggart.  Dr. Francis 
 
         examined claimant on June 8, 1988 and found him to have a serious 
 
         degree of ongoing depression and in need of further treatment.  
 
         He stated that the, depression was a result of claimant's back 
 
         injury (exhibit 1, page 1).  McTaggart agreed with Dr. Francis' 
 
         assessment of causation and of the seriousness of claimant's 
 
         condition.  McTaggart testified at hearing that claimant's 
 
         current employment situation with the conservation commission is 
 
         as optimally good a situation as could be hoped for.  He stated 
 
         that many employers would not accommodate a person such as Harold 
 
         Hagen.
 
         
 
         
 
         
 
         HAGEN v. IOWA CONSERVATION COMMISSION
 
         Page 3
 
         
 
         
 
              Dr. Ingle testified that claimant has had varying degrees of 
 
         anxiety, depression, back pain and intestinal problems since 1985 
 
         and that the anxiety and depression have worsened since April 
 
         1985 (exhibit 6, pages 9 and 10).  He opined that all the 
 
         treatment which claimant has received for his ulcer and anxiety 
 
         is causally connected to the 1982 back injury (exhibit 6, pages 
 
         12-14).
 
         
 
              It is found that claimant's anxiety, depression and 
 
         intestinal problems have a causal connection with the 1982 back 
 
         injury.  The back injury was a substantial factor in causing them 
 
         to either develop or become so symptomatic as to require medical 
 
         treatment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Ingle listed those occasions when Harold Hagen was 
 
         treated by him for conditions which had their origin in the back 
 
         injury.  Those dates were compared with Dr. Ingle's charges in 
 
         exhibit 4. The charges which are found to be causally connected 
 
         with the 1982 back injury are as follows:
 
         
 
               09/13/85                  $18.00
 
               09/24/85                   33.00
 
               09/26/85                   33.00
 
               06/10/86                   17.00
 
               02/03/87                   17.00
 
               02/17/87                   17.00
 
               08/10/87                   45.00
 
               08/12/87                   37.00
 
               08/14/87                   45.00
 
               11/05/87                   20.00
 
               02/15/88                   83.00
 
               02/22/88                   55.00
 
               02/29/88                   20.00
 
               04/19/88                   45.00
 
               04/29/88                   20.00
 
               05/19/88                   40.00
 
               10/27/88                   63.00
 
               01/30/89                   68.00
 
               02/13/89                   23.00
 
               04/06/89                   43.00
 
               04/11/89                   23.00
 
               04/17/89                   23.00
 
               04/21/89                   23.00
 
               07/06/89                   33.00
 
               07/13/89                   33.00
 
               08/17/89                   41.00
 
               10/19/89                   60.00
 
               10/23/89                         60.00
 
               Total                        $1,038.00
 
         
 
         
 
         
 
         HAGEN V. IOWA CONSERVATION COMMISSION
 
         Page 4
 
         
 
         
 
              Dr. Ingle stated that, on the days when he saw claimant for 
 
         his back or other disorders, claimant would probably have been 
 
         unable to perform the normal duties of his employment (exhibit 6, 
 
         page 32).  When the list of those days claimant was seen by Dr. 
 
         Ingle is compared with claimant's list of sick days in exhibit 7, 
 
         it is found that there are eight days on both lists consisting of 
 
         09/24/85, 02/03/87, 02/06/88, 04/06/89, 10/18/89, 10/19/89, 
 
         10/20/89 and 12/07/89.  Dr. Ingle's statements confirm that 
 
         claimant was not medically capable of performing the duties of 
 
         his employment on those eight days.
 
         
 
              Claimant obtained treatment for his psychological condition 
 
         at West Side Clinical Associates, P.C., which organization 
 
         includes Gerald Catron, P.C. The total charges for that treatment 
 
         are $1,265.00.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Hagen was issued a number of prescriptions for treatment of 
 
         his ulcer, emotional and back conditions.  The total charges are 
 
         $1,593.76, of which  $1,247.46 was incurred at the Walgreens 
 
         Pharmacy and $346.30 was incurred at the Nichols Pharmacy.  The 
 
         bills in evidence were examined and show the following charges 
 
         for prescriptions:
 
         
 
         Prescription                    Walgreens    Nichols           
 
         Total
 
          Zantac                         $  654.36      $ 289.80       $ 
 
         944.16
 
          Limbitrol                         121.16         29.80         
 
         150.96
 
          Amitriptolene                      88.66                        
 
         88.66
 
          Tolectin                           15.29                        
 
         15.29
 
          Carafate                                       13.90          
 
         13.90
 
          Prozac                            137.97                       
 
         137.97
 
          Flurazepam Mylan                   15.28                        
 
         15.28
 
          Trazene                                         4.90           
 
         4.90
 
          Clorazepate Mylan                  67.12                        
 
         67.12
 
          Pamelor                           147.62                       
 
         147.62
 
          Parafon Forte                                     7.90           
 
         7.90
 
          Total                                 $1,247.46       $346.30      
 
         $1,593.76
 
         
 
         The total medical expenses incurred are therefore:
 
         
 
         Gregory Ingle, M.D.             $1,038.00 
 
          West Side Clinical Associates   1,265.00
 
          Walgreens Pharmacy              1,247.46
 
          Nichols.Pharmacy                  346.30
 
          Total                          $3,896.76
 
         
 
              Claimant needed to travel in order to obtain treatment and 
 
         prescriptions.  The amounts shown on his claim for mileage, 
 
         exhibit 5, are less than what the medical records would support, 
 
         other than for the K-Mart Pharmacy and the DOT Pharmacy.  
 
         Claimant's transportation expenses incurred
 
         
 
         
 
         
 
         HAGEN v. IOWA CONSERVATION COMMISSION
 
         Page 5
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         in obtaining treatment and medication which was necessary due to 
 
         the 1982 injury are as follows:
 
         
 
         Dr. Ingle                         580 miles         $ 121.80
 
          West Side Clinical Assoc.      1,204 miles         252.84
 
          Walgreens Pharmacy             2,706 miles         568.26
 
          Nichols Pharmacy                  40 miles           8.40
 
          Total                          4,530 miles        $951.30
 
         
 
              Based upon the overwhelming and uncontroverted evidence from 
 
         Dr. Ingle, Dr. Francis and psychotherapist McTaggart, it is found 
 
         that the 1982 back injury is a substantial factor in producing 
 
         the back, emotional and intestinal disorders which current 
 
         afflict Harold Hagen.  That injury is a substantial factor in 
 
         producing the need for all the medical treatment which he has 
 
         received for those conditions and the expenses incurred in 
 
         obtaining that treatment, including transportation expenses.
 
         
 
              Claimant has been able to continue performing his job, other 
 
         than for the times he has been absent.  His supervisor has 
 
         observed claimant to be emotionally unstable, but it has not 
 
         prevented him from generally doing his work, other than for the 
 
         days he has been absent.  Claimant has problems with his family 
 
         relationships due to the emotional condition.
 
         
 
              It is found that, while all the conditions which currently 
 
         afflict Harold Hagen did exist when this case was initially 
 
         settled in 1985, the emotional condition has worsened beyond the 
 
         normal range of fluctuation which is common for such conditions.  
 
         When the case was settled, the condition was well controlled by 
 
         medication from Dr. Ingle.  It has since become poorly controlled 
 
         and been termed as serious by a qualified psychiatrist and 
 
         extensive psychological therapy has been administered to the 
 
         claimant.
 
         
 
              Claimant has not experienced any actual reduction in his 
 
         rate of earnings.  His condition has not required extended 
 
         absences from employment for purposes of treatment.  It has not 
 
         actually disabled him from working, other than intermittently.  
 
         Claimant remains capable of performing his normal work under the 
 
         employment conditions which exist at the present time.
 
         
 
              Harold Hagen experiences a 20 percent permanent reduction in 
 
         his earning capacity as a result of the back, intestinal and 
 
         emotional problems which developed and worsened as a result of 
 
         the 1982 injury.
 
         
 
         
 
         
 
         HAGEN v. IOWA CONSERVATION COMMISSION
 
         Page 6
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              In review-reopening proceeding, the claimant has the burden 
 
         of  establishing that he suffered additional impairment or 
 
         lessening of his earning capacity as a proximate result of the 
 
         original injury, which reduction has occurred subsequent to the 
 
         date of the agreement for settlement.  Deaver v. Armstrong Rubber 
 
         Co., 170 N.W.2d 455, 457 (Iowa 1969).  An increase in industrial 
 
         disability may occur without a change in physical condition.  
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 350 (Iowa 
 
         1980).  Cause for allowance of additional compensation exists 
 
         upon showing that facts relative to an employment-connected 
 
         injury existed, but were unknown and could not have been 
 
         discovered by the exercise of reasonable diligence at the time of 
 
         the prior settlement.  Gosek v. Garmer & Stiles Co., 158 N.W.2d 
 
         731 (Iowa 1968).  Since the worsening of claimant's psychological 
 
         condition was not anticipated at the time the settlement was 
 
         entered into in 1985, it is concluded that there has been a 
 
         sufficient change of condition or change of circumstances to 
 
         warrant reconsideration of his award.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-Citv Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in, 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to .the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which .he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are
 
         
 
         
 
         
 
         HAGEN v. IOWA CONSERVATION COMMISSION 
 
         Page 7
 
         
 
         
 
         not synonymous with earning capacity and the presumption may be 
 
         rebutted by evidence showing the earnings to be an unreliable 
 
         indicator.  Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); 
 
         Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa 
 
         App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th 
 
         Biennial Report, 218 (1979); 2 Larson Workmen's Compensation Law, 
 
         sections 57.21 and 57.31.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The employer in this case has prevented Harold Hagen from 
 
         experiencing what would likely be a very severe loss of actual 
 
         earnings if his current employment situation were to be disturbed 
 
         or terminated.  While he clearly has a serious emotional 
 
         condition, as well as the back condition and intestinal disorder, 
 
         those problems have not rendered him incapable of performing his 
 
         normal work.  They have not been shown to have adversely impacted 
 
         his rate of earnings.
 
         
 
              When review-reopening of a permanent partial disability is 
 
         granted, however, the individual's earning capacity is evaluated 
 
         de novo.  The condition is not one in which the prior award or 
 
         settlement is used as a base to which disability is to be added 
 
         or subtracted.  When Harold Hagen's loss of earning capacity 
 
         which was proximately caused by the 1982 back injury and its 
 
         sequelae are considered, it is determined that the degree of 
 
         disability is 20 percent permanent partial disability which under 
 
         the provisions of Iowa Code section 85.34(2)(u) entitles him to 
 
         receive an additional 25 weeks of compensation for permanent 
 
         partial disability, payable commencing on the date of this 
 
         decision.  Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 
 
         109 (1957).
 
         
 
              Claimant is entitled to recover one and one-seventh weeks of 
 
         healing period, with one-seventh week payable on September 24, 
 
         1985, February 3, 1987, February 6, 1988, April 6, 1989, and 
 
         December 7, 1989 and with three-sevenths weeks thereof payable 
 
         commencing October 18, 1989.
 
         
 
              Harold Hagen is entitled to.recover from the employer the 
 
         following medical expenses:
 
         
 
          Dr. Ingle                      $1,038.00
 
          West Side Clinical Associates   1,265.00
 
          Walgreens Pharmacy              1,247.46
 
          Nichols Pharmacy                         346.30
 
         
 
         
 
         
 
         HAGEN v. IOWA CONSERVATION COMMISSION
 
         Page 8
 
         
 
         
 
              Harold Hagen is entitled to recover transportation expenses 
 
         in the amount of $951.30 under Iowa Code section 85.27.
 
         
 
              Where the medical expenses with West Side Clinical 
 
         Associates were introduced into evidence as a joint exhibit at 
 
         the commencement of the hearing, the employer had waived any 
 
         objection it might have to the exhibit based upon lack of 
 
         discovery responses and was not entitled to later seek the 
 
         sanction of exclusion since the exhibit had been jointly offered 
 
         and received.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The medical bills and transportation expense reimbursement 
 
         which Harold Hagen is entitled to recover would be payable to him 
 
         even if there had been no change of condition which warrants 
 
         reconsideration of his permanent partial disability award.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that the employer pay Harold A. 
 
         Hagen twenty-five (25) weeks of compensation for permanent 
 
         partial disability at the stipulated rate of one hundred 
 
         eighty-seven and 79/100 dollars ($187.79) per week payable 
 
         commencing on the date of this decision.
 
         
 
              IT IS FURTHER ORDERED that the employer pay Harold Hagen one 
 
         and one-seventh (1 1/7) weeks of compensation for healing period 
 
         at the stipulated rate of one hundred eighty-seven and 19/100 
 
         dollars ($187.79) per week with one-seventh (1/7) week thereof 
 
         payable on September 24, 1985, February 3, 1987, February 6, 
 
         1988, April 6, 1989, and December 7, 1989 and with three-sevenths 
 
         (3/7) weeks thereof payable commencing October 18, 1989.
 
         
 
              IT IS FURTHER ORDERED that the employer pay to claimant the 
 
         following medical expenses:
 
         
 
          Dr. Ingle                      $1,038.00
 
          West Side Clinical Associates   1,265.00
 
          Walgreens Pharmacy              1,247.46
 
          Nichols Pharmacy                     .   346.30
 
         
 
              IT IS FURTHER ORDERED that the employer pay claimant 
 
         transportation expenses in the amount of nine hundred.fifty-one 
 
         and 30/100 dollars ($951.30).
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against the employer, including twenty-five and 00/100 
 
         dollars ($25.00) for the cost of a medical report from West Side 
 
         Clinical Associates.
 
         
 
         
 
         
 
         HAGEN v. IOWA CONSERVATION COMMISSION
 
         Page 9
 
         
 
         
 
              IT IS FURTHER ORDERED that the employer file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 31st day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         Ms. Barbara J. Danforth
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa 50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1108, 5-1302.1, 5-1402.60 
 
                                         5-1803, 5-2204, 5-2501 
 
                                         5-2503, 5-2905, 5-3800 
 
                                         Filed May 31, 1990
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
          HAROLD A. HAGEN,               :
 
         
 
                Claimant,                :
 
         
 
          VS. :                                       File No. 719962
 
          
 
          IOWA CONSERVATION COMMISSION,               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
 
         
 
          STATE OF IOWA,
 
         
 
                Insurance Carrier,
 
                Defendants.
 
         
 
         
 
         
 
         5-1108, 5-1302.1, 5-2204, 5-2905
 
         
 
              Claimant-had injured his back in 1982 and in 1985 entered 
 
         into a settlement agreement.  At the time of the settlement, it 
 
         was known that he was afflicted with emotional and intestinal 
 
         disorders which were causally connected to that back injury.  In 
 
         1988, his emotional condition worsened and was no longer well 
 
         controlled.  He entered into a course of psychological treatment.  
 
         Such was held sufficient to warrant review-reopening and 
 
         reconsideration of his settlement.
 
         
 
         5-1402.60, 5-2501, 5.-2503
 
         
 
              The employer had refused to pay the expenses of treatment 
 
         for the intestinal and psychological conditions.  Those expenses 
 
         were found causally connected and the employer was held liable 
 
         for their payment, including prescriptions and travel expenses.  
 
         The amount of the recovery was limited to the lesser of the 
 
         amount substantiated by the bills entered into evidence or the 
 
         amount claimed by the claimant.
 
         
 
         5-1803,  5-3800
 
         
 
              The additional permanent partial disability award was held 
 
         payable commencing on the date of the decision which awarded it.