BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THEODORE L. COURCHAINE,
 
         
 
              Claimant,                               File No. 723925
 
         
 
         vs.                                            A P P E A L
 
         
 
         OVERLAND DRIVER SERVICE,                     D E C I S I O N
 
          
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        JAN 29 1988
 
         FARMERS INSURANCE GROUP,
 
                                               IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from a review-reopening decision awarding 
 
         claimant permanent total disability benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing, claimant's exhibits 1 through 18 and 
 
         defendants' exhibits A through I.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                     ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              Did the deputy industrial commissioner err in determining 
 
              claimant's weekly compensation rate based upon a pay period 
 
              from February 28 to June 5 and upon a pay rate of 16> per 
 
              mile?
 
         
 
              Did the deputy industrial commissioner err in allowing 
 
              claimant to recover expenses for medical problems not 
 
              causally related to the injuries he sustained in the 
 
              accident of June 5, 1981?
 
         
 
              Did the deputy industrial commissioner err in rejecting the 
 
              agreement between claimant and defendants and in allowing 
 
              claimant to recover for medical expenses incurred in 
 
              violation of the agreement?
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be totally 
 
                                                
 
                                                         
 
         reiterated herein.
 
         
 
              Claimant was employed as a truck driver for defendant on 
 
         June 5, 1981.  Claimant was injured when the truck he was driving 
 
         was struck head on by an oncoming car.  The collision caused the 
 
         truck to roll over a guardrail and down an embankment.
 
         
 
              Claimant struck his head on the roof of the truck and was 
 
         hospitalized until noon the next day after the accident.  
 
         Claimant was treated at the hospital by A. M. Romano, M.D.  Dr. 
 
         Romano states the following diagnosis in a letter dated October 
 
         5, 1981:
 
         
 
              The diagnosis on this man is as follows:
 
         
 
               1.  Concussion
 
               2.  Laceration of eyebrow
 
               3.  Contusion of knee
 
         
 
              Prognosis is good.  It is anticipated that his concussion 
 
              will give him problems for quite a while, but eventual 100% 
 
              recovery is expected.
 
         
 
         (Claimant's Exhibit 9)
 
         
 
              Claimant testified that he does not have clear memory of the 
 
         events of the summer of 1981 following the accident.  Exhibit 10 
 
         contains copies of claimant's log book entries.  The first page 
 
         is dated August 18, 1981 and indicates that claimant drove about 
 
         ten hours that day.  The last page of this exhibit is dated 
 
         September 6, 1981 and indicates that claimant drove about nine 
 
         hours that day.  Defendants exhibit I contains copies of medical 
 
         release for work forms.  Page 2 of this exhibit is signed by Dr. 
 
         Romano and releases claimant for return to work on August 16, 
 
         1981.  Page 1 of this exhibit is signed by Behrouz Rassekh, M.D., 
 
         and indicates that claimant was under Dr. Rassekh's care from 
 
         September 15, 1981 to September 24, 1981 and was released for 
 
         return to work on September 28, 1981.
 
         
 
              Claimant stated that he went to see Jan J. Golnick, M.D.  
 
         Dr. Golnick hospitalized claimant on October 26, 1981 and he 
 
         reports the course of treatment followed in a letter dated 
 
         December 3, 1981:
 
         
 
                   Patient was admitted to Midlands Community Hospital on 
 
              October 26, 1981 for neurological work-up as well as 
 
              myelogram.  During the hospitalization, he underwent 
 
              extensive testing and the myelogram revealed mild asymmetry 
 
              of the L5-S1 with slight blunting of the nerve root on the 
 
              right side.  He was seen on orthopedic consultation by Dr. 
 
              Murphy who recommended that the patient would have to wear 
 
              lumbosacral corset and have active rehabilitation exercise 
 
              program consisting of Williams' flexion exercises in 
 
              addition to cervical muscles training as well as caudal 
 
              block for lumbar pain to be done by anesthesiologist, Dr. 
 
                                                
 
                                                         
 
                   Rosenberg.
 
         
 
         (Cl. Ex. 9)
 
         
 
              Claimant gave the following testimony concerning the nerve 
 
         blocks performed by Dr. Rosenberg:
 
         
 
              Q.  Do you remember a Dr. Rosenberg doing some nerve 
 
              blocks?
 
         
 
              A.  Yes.
 
         
 
              Q.  You do remember that?
 
         
 
              A.  Yes.
 
         
 
              Q.  Why do you remember that?
 
         
 
              A.  It was really painful.
 
         
 
              Q.  What did he do?
 
         
 
              A.  They take a needle about ten inches long and stick it 
 
              under your arm for about a foot and a half and leave it 
 
              there and inject fluid in you.
 
         
 
              Q.  What does it do?
 
         
 
              A.  It knocks the hell out of you.
 
         
 
              Q.  Did it cause numbness or something?
 
         
 
              A.  It gives you a severe pain; and the next day, you're 
 
              supposed to.be relieved of pain.
 
         
 
              Q.  Were you relieved of pain?
 
         
 
              A.  I suppose for a period of time.
 
         
 
         (Transcript, pages 71-72)
 
         
 
              Claimant continued to experience pain and was eventually 
 
         referred to Dr. Blume in October 1982.  Claimant testified 
 
         concerning Dr. Blume's treatment:
 
         
 
              Q.  When you went up to see Dr. Blume in October of 1982, 
 
              did they do some injection into your spinal area to try and 
 
              determine what was the problem?
 
         
 
              A.  Yes, they did.  Got a pen?  I'll show you.  They take a 
 
              needle about that size and put it right here (Indicating).
 
         
 
              Q.  In your throat?
 
         
 
              A.  Right to the neck bone, and then they put another one 
 
                                                
 
                                                         
 
                   right above it.  Then they take a needle about that long, 
 
              and they put it in there; and they induce pain in it.
 
         
 
              Q.  Did they induce pain?
 
         
 
              A.  You got that right.  They sure did.
 
         
 
              Q.  And what happened?
 
         
 
              A.  I blew my guts up.
 
         
 
              Q.  What do you mean?
 
         
 
              A.  That's what I did.  My guts blew up.
 
         
 
              Q.  Well, that is very descriptive, but it doesn't help 
 
              describe what you mean by that.
 
         
 
              A.  They call it an ulcer.
 
         
 
              Q.  When did this ulcer come to being, that you had any 
 
              knowledge that you had any problem?
 
         
 
              A.  Shortly after that injection.
 
                           
 
                                                         
 
         (Tr., pp. 81-82)
 
         
 
              Claimant stated that he was taken to the hospital for 
 
         treatment of ulcer by his sister-in-law as he was unconscious.  
 
         At the hospital claimant was treated by William A. Albano, M.D.  
 
         Dr. Albano opines in a letter to claimant's counsel:
 
         
 
                   Mr. Courchaine was seen by Dr. Keig and myself on an 
 
              emergency basis due to a perforated duodenal ulcer with a 
 
              subphrenic fluid collection.  Prior to the time of the 
 
              development of his acute abdomen, I had not known the 
 
              patient.  However, duodenal ulcer disease, especially that 
 
              associated with acute perforation, has certainly been linked 
 
              to stress, as well as anti-inflammatory and analgesics that 
 
              are used for the type of injuries that Mr. Courchaine had 
 
              prescribed following his automobile accident.  The duodenal 
 
              ulcer, per se, was not directly related to the automobile 
 
              accident, though without question, the etiology for such an 
 
              ulcer disease is directly connected to the stress and 
 
              medicines that the patient was under.
 
         
 
         (Cl. Ex. 9)
 
         
 
              Apparently claimant was also seen by Lawrence M. Fitzgerald, 
 
         M.D., at the hospital:
 
         
 
                   I first saw Mr. Chourchaine [sic] on the evening of 
 
              November 10, 1982 at which time he was suffering from a one 
 
              day history of profuse abdominal pain and confussion. 
 
              Subsequently he was found to have a perforated ulcer of the 
 
              duodenum and underwent emergency surgery that evening.  At 
 
              the time of surgery he was also found to have a right 
 
              subphrenic abscess.
 
         
 
                   Mr. Courchaine was being treated with Fiorinal and 
 
              Atavan as well as an arthritis medication for pain in the 
 
              cervical and lumbosacral spine area as the result of an auto 
 
              accident in June of 1981.  Within the week prior to his 
 
              admission he had been to Sioux City, Iowa where he underwent 
 
              discography.  Accourding [sic] to the patient, that 
 
              procedure did cause severe pain and anxiety which lasted for 
 
              several days.
 
         
 
                   I believe that the undue stress that Mr. Courchaine 
 
              experienced as a result of the procedure did play a small 
 
              part in the development of his ulcer.  However I think that 
 
              the major inciting factor of the ulcer was most likely his 
 
              medications, which are known to have this complication.
 
         
 
         (Cl. Ex. 9)
 
         
 
              Claimant stated that his gallbladder was removed in June 
 
         1984.  Claimant opined that the gallbladder was gangrenous. 
 
         Claimant also indicated that he went to James A. Conroy, M.D., a 
 
         specialist in internal medicine, because he had had diarrhea and 
 
                                                
 
                                                         
 
         bowel problems since the ulcer surgery.
 
         
 
              Dr. Conroy opined that claimant has chronic pancreatitis. 
 
         Dr. Conroy gave the following testimony concerning the cause of 
 
         claimant's pancreatitis at his deposition taken on June 18, 
 
         1985:
 
         
 
              Q.  Is that relative insofar as your diagnosis and any 
 
              prognosis that you've made as regards to this patient?
 
         
 
              A.  It was not at the time relevant.  Perhaps I should 
 
              restate that.  It could have had some relevance.
 
         
 
              Q.  Why?
 
         
 
              A.  One of my final impressions as can be seen on page 4--
 
         
 
              Q.  Yes.
 
         
 
              A.  --was chronic pancreatitis and as I indicated, my first 
 
              consideration for the etiology or the cause of that chronic 
 
              pancreatitis was related to trauma and so I based that 
 
              suspicion or impression on the historical fact that he 
 
              indicated that he began having loose stools the same summer 
 
              as his automobile injury.
 
         
 
         (Conroy Deposition, p. 12, lines 11-24)
 
         
 
              Q.  Can you tell me this:  Is pancreatitis caused by other 
 
              diseases such as gallstones?
 
         
 
              A.  It's related to a number of other medical diseases, yes. 
 
              Gallstones is included in that list.
 
         
 
              Q.  What else would there be?
 
         
 
              Conroy - Direct
 
         
 
              A.  Perforated peptic ulcer.
 
         
 
              Q.  What else?
 
         
 
              A.  Hyperlipidemia, a condition of excessively high 
 
              cholesterol, high calcium, certain tumors that can elevate 
 
              the calcium content.  There's a long list.
 
         
 
              Q.  So pancreatitis, the causations of that are numerous, 
 
              also?
 
         
 
              A.  Yes.
 
         
 
         (Conroy Dep., pp. 20-21, lines 21-25, 1-8)
 
         
 
              Q.  Well, I guess I want to ask you, based on the fact that 
 
              he had that gallbladder surgery, do you think that the 
 
                                                
 
                                                         
 
                   gallstones were in any way related to what you've now 
 
              determined as pancreatitis?
 
         
 
              A.  There is some possible connection.
 
         
 
              Q.  Likely connection?
 
         
 
              A.  As I stated earlier, I tried to weigh all the factors 
 
              and the temporal relationship with his automobile injury 
 
              seems to stick out as the predominant factor, although I 
 
              grant that this certainly could also have been 
 
              contributory.
 
         
 
         (Conroy Dep., pp. 23-24, lines 18-25, 1-3)
 
         
 
              Q.  You gave an opinion to Mr. Laubenthal that at least 
 
              50--you have at least a 50 per cent medical certainty in 
 
              your mind that the ulcer was probably related to the 
 
              accident.
 
         
 
              A.  Indirectly, yes, I feel at least 50 per cent confident 
 
              that the ulcer was precipitated by the stress and/or 
 
              medications he was given that resulted from the accident.
 
         
 
              Q.  And when you say "and/or medication," are you saying 
 
              that it could be one or the other or a combination of the 
 
              two?
 
         
 
              A.  Probably both.
 
         
 
              Q.  All right.  Is it significant to you that he had no 
 
              history of ulcers before that accident?
 
         
 
              A.  Yes.  That's part why I attribute at least 50 per cent, 
 
              because it would have been likely, as I stated earlier 
 
              today, if the man had a chronic history of peptic ulcer 
 
              disease, then I wouldn't say that it was--it was likely 
 
              caused by the wreck, but when he had no prior history, and 
 
              this was a de novo problem, so to speak, then one has to 
 
              relate it to the likely causes at the time and that was the 
 
              stress and the medication.
 
         
 
              Q.  What's your opinion as to whether his present pancreas 
 
              problems are likewise related to the collision of June of 
 
              1981?
 
         
 
              A.  I would say with the same degree of certainty as the 
 
              peptic ulcer that--probably 50 per cent, but I could not say 
 
              at the 90 per cent confidence level.
 
         
 
              Q.  Okay.  Is that because of the fact that he has--had a 
 
              history, at least, of gallbladder problems?
 
         
 
              A.  That's correct.
 
         
 
                                                
 
                                                         
 
         (Conroy Dep., pp. 53-54, lines 19-25, 1-24)
 
         
 
              Claimant was examined by James G. Patterson, Ph.D., a 
 
         psychologist, on March 30, 1983.  In his psychological report Dr. 
 
         Patterson opines:
 
         
 
                   In brief, Mr. Courchaine is functioning in the Dull 
 
              Normal range of intelligence at present.  There does appear 
 
              to be a significant degree of deterioration in his mental 
 
              capacity in comparison with pre-morbid functioning.  The 
 
              deficit is most apparent in short term memory and in higher 
 
              visual integration, and could be the result of depression 
 
              and anxiety or brain damage, but most likely a comination 
 
              [sic] of the two factors.  His depression is likely to be a 
 
              reaction to physical impairment and chronic pain, especially 
 
              since he has no previous psychiatric history, and is 
 
              accompanied by paranoid suspiciousness and mistrust, 
 
              especially toward the medical profession.  Some further 
 
              testing and evaluation is needed in reference to his visual 
 
              integration problems as well as memory.  For this purpose, 
 
              the Wechsler Memory Scale, and the Benton Visual Memory test 
 
              will be given within the next two weeks.  Possibly, some 
 
              type of antidepressive medication would be helpful also.
 
         
 
         (Cl. Ex. 9)
 
         
 
              Dr. Patterson reports these results on the follow-up 
 
              testing:
 
         
 
                   On the Wechsler Memory Scale, he obtained a Memory 
 
              Quotient of 94, which falls in the lower part of the Average 
 
              range.  Since these scores are directly comparable to WAIS - 
 
              R IQ scores (mean of 100, standard deviation of 15), his MQ 
 
     
 
                           
 
                                                         
 
              of 94 represents a considerable degree of improvement over 
 
              his WAIS - R Full Scale IQ score of 84, obtained on 3/30/82. 
 
              This should not be interpreted as an overall improvement in 
 
              cognitive function however, since his memory for digits on 
 
              both tests remained the same.  His higher score on the WMS 
 
              resulted mainly from better performance on tasks involving 
 
              immediate recall of verbal material, paired-associates 
 
              learning, and recall of current information.  Hence, the 
 
              results of this test contraindicate a significant memory 
 
              deficit.
 
         
 
                   On the Benton Visual Retention Test, he obtained a 
 
              total error score of four, which is precisely equal to the 
 
              expected score for normal adults for his age group with low 
 
              average IQs.  These results, as in the WMS suggest that he 
 
              has no significant impairment of visual memory.  His lower 
 
              score on the WAIS - R was probably due substantially to 
 
              emotional factors prevailing at that time which adversely 
 
              affected his concentration.
 
         
 
         (Cl. Ex. 9)
 
         
 
              Claimant has also been examined by Thomas G. Grandy, Ph.D., 
 
         a clinical psychologist on February 2, 1984.  Dr. Grandy opines:
 
         
 
                   Diagnostic impressions, in accordance with the 
 
              inventory results, suggest consideration of 
 
              obsessive-compulsive neurosis, depressive reaction, anxiety 
 
              reaction.
 
         
 
                   Treatment considerations include a psychiatirc [sic] 
 
              examination to determine the nature of both anxiety and 
 
              depressive reactions as well as to carefully evaluate the 
 
              suicide potential.  Anti-depressant medication and 
 
              tranquilizers can be considered to reduce the severtiy [sic] 
 
              of depression and panic reactions.  Drug dependency does not 
 
              appear to be an issue in treatment.  Psychotherapy is 
 
              probably not advised unless the patient desires it, as 
 
              defensiveness is very high.  However, should psychotherapy 
 
              be considered, it may be useful to focus upon avoidance of 
 
              aggression, expression of anger and sensitivity to his own 
 
              emotions.
 
         
 
         (Cl. Ex. 9)
 
         
 
              Claimant was evaluated by Michael Newman, a certified 
 
         vocational evaluator on February 15, 1984.  Mr. Newman relates 
 
         his impressions and recommendations concerning claimant's 
 
         physical ability to do work in his report:
 
         
 
                   Physically, this gentleman presents himself as one who 
 
              is severely disabled and unemployable.  Mr. Courchaine's 
 
              level of physical activity was observed closely and the 
 
              findings are reported in the preceding paragraphs.  In 
 
              addition to numerous physical complaints stated by Mr. 
 
                                                
 
                                                         
 
                   Courchaine, the client also strongly believes that he has 
 
              suffered significant brain damage as a result of his 
 
              trucking accident.  A review of psychological testing 
 
              administered by Dr. James G. Patterson indicates that Mr. 
 
              Courchaine is functioning intellectually somewhere between 
 
              the dull-normal to low-average range of intelligence.  Dr. 
 
              Patterson further stated the possibility of the client's 
 
              test scores being lowered through factors of depression and 
 
              anxiety or brain damage.  Based on Dr. Patterson's 
 
              psychological report, it is not clearly stated whether or 
 
              not Mr. Courchaine indeed suffers from organic brain 
 
              damage.
 
         
 
                   In keeping with the aforementioned clinical 
 
              observations and current vocational testing results it 
 
              appears that Mr. Courchaine would be a poor risk for 
 
              successful case management until the client's current 
 
              medical dilemma is resolved to his satisfaction.  Currently 
 
              this gentleman exhibits a tremdous [sic] amount of anger and 
 
              suspiciousness towards the medical profession in general as 
 
              he stated "I have been, expletive, over by them so much, I 
 
              don't know who to believe."
 
         
 
         (Cl. Ex. 9)
 
         
 
              Claimant has continued to see Dr. Golnick, and in a February 
 
         27, 1985 letter to the State of Iowa Disability Determination 
 
         Services Dr. Golnick opines:
 
         
 
                   His medical history is very lengthy and very complex. 
 
              In brief, this patient had sustained injury to the brain, 
 
              the entire spine, and currently there is some evidence that 
 
              he developed posttraumatic injury to the pancreas and 
 
              spleen which has resulted in pancreatic insufficiency.
 
         
 
              Medical diagnosis:
 
         
 
                    1.  Status post brain contusion and contusion of the 
 
                        entire spine and spinal cord.
 
                    2.  Severe cervical thoracic and lumbosacral 
 
                        radiculopathy with significant discopathy and 
 
                        posttraumatic degenerative changes of the spine.
 
                    3.  Mild to moderate organic mental syndrome with 
 
                        significant memory loss secondary to head trauma.
 
                    4.  Posttraumatic cephalgia.
 
                    5.  Possible postruamtic [sic] pancreatic 
 
                        insufficiency.
 
         
 
                   It is my medical opinion that this patient is totally 
 
              disabled for any type of work indefinitely.
 
         
 
                   As far as the prognosis is concerned, there is 
 
              practically no chance that this type patient will ever 
 
              recover to the point where he will be able to assume any 
 
              type of job or to be as well as he was prior to the 
 
                                                
 
                                                         
 
                   accident.
 
         
 
         (Cl. Ex. 9)
 
         
 
              Claimant testified that he has tried to sell cars and to do 
 
         carpenter work but he was unable to because he has to go to the 
 
         toilet frequently.  Claimant states that he is 52 years old.
 
         
 
              Testimony was also presented at the hearing concerning how 
 
         much claimant was paid.  Claimant testified that he was paid $.16 
 
         per mile, $25 for each pickup (loading and unloading) except for 
 
         the first pickup for which he received nothing, and $40 for 
 
         layovers.  Claimant also stated that he was given a cash advance 
 
         before he left on a trip to pay for trip expenses.  Claimant had 
 
         to produce receipts for expenditures made from this advance, and 
 
         any money left over from the advance was withheld from his pay as 
 
         it was money claimant already had.  Claimant identified 
 
         claimant's exhibits 1 and 2 as his log books for the months of 
 
         April, May and June 1981.  Claimant also identified the driver 
 
         settlement sheets which are attached to claimant's exhibits 1, 2 
 
         and 5.  Claimant's exhibit 5 is typical of these driver 
 
         settlement sheets:
 
         
 
                           DRIVERS SETTLEMENT
 
         
 
                   Driver  Ted Courchaine        Unit No.  2066
 
                                                 Trip No.  5312
 
         
 
                       4,132   Miles @  .13  = $        $537.16
 
                   1 day layover                          40.00
 
                   6 pick up   Miles @ 25.00 = $        $150.00
 
         
 
                                   Total Gross $        $727.16
 
                   F.I.C.A.       $   48.35
 
                   Fed. W/H          144.60
 
                   State W/H          17.19
 
                   Insurance               
 
                     
 
                     SUB-TOTAL    $  180.14     $       
 
                    -180.14
 
                     
 
                                   Net Pay     $        $547.02
 
         
 
                   Cash Advance       50.00
 
                   Cash Spent         77.98
 
                   Adjust to Pay      27.98    $         +27.98
 
                    
 
                                   Total Due   $        $575.00
 
         
 
                      4,132 miles        03              123.96
 
                                                         698.96
 
         
 
         
 
                   Paid by Check No.       Date        
 
         
 
                                                
 
                                                         
 
                           TRIP EXPENSES
 
         
 
                   Truck Maint.            $          
 
         
 
                   Trailer Maint.                     
 
         
 
                   Tires                              
 
         
 
                   Fuel                               
 
         
 
                   Oil                                
 
         
 
                   Permits                            
 
         
 
                       SUB-TOTAL                         $  -------
 
         
 
                   Loading                            
 
         
 
                   Communications             6.63    
 
         
 
                   Motel & Meals             17.47    
 
         
 
                   Tolls & Scales             4.75    
 
                                               .83 - logs
 
                   Miscellaneous             48.30 - permits
 
         
 
                       SUB-TOTAL                             $     77.98
 
         
 
                       TOTAL EXPENSES                        $     77.98
 
         
 
              Claimant testified that the additional $.03 which is added 
 
         after withholding was a safety bonus.
 
                           
 
                                                
 
                                                         
 
              Page 3 of claimant's exhibit 18 is a Nebraska first report 
 
         of injury prepared by Ron Chitcott, general manager of Overland 
 
         Driver Service.  In box 17 of this exhibit it is indicated that 
 
         claimant's wage rate at the time of injury was $.16 per mile. 
 
         Claimant's exhibit 4 is a letter to claimant's attorney from 
 
         James B. Hagaret who, according to testimony at the hearing (Tr., 
 
         pp. 37-38, lines 1 & 2), is the owner of Overland Driver Service. 
 
         Hogarth states:
 
         
 
                   With reference to your letter of April 17, 1985 
 
              regarding the rate of pay of Mr. Courchaine, Mr. Chilcott 
 
              was in error in stating the gross pay was 16> a mile.
 
         
 
                   Mr. Courchaine was paid 13> a mile as wages and an 
 
              additional 3> a mile for road expense, which is probably 
 
              where the misunderstanding occurred.
 
         
 
         (Cl. Ex. 4)
 
         
 
              Rich DeGroff, vice president of Overland Driver Service, 
 
         testified at the hearing.  DeGroff stated on direct examination 
 
         that Overland Driver Service went into business on April 1, 1981. 
 
         DeGroff opined that the additional $.03 per mile which claimant 
 
         was paid are for expenses such as motels or meals.  (Tr., p. 155) 
 
         DeGroff identified defendants' exhibit G as a photocopy of the 
 
         books of Overland.  On cross-examination, DeGroff revealed that 
 
         Overland Driver Service actually went into business on March 1, 
 
         1981.  (Tr., p. 16)  DeGroff indicated that he does not know why 
 
         the March 13 $727.16 payment which is listed on claimant's 
 
         exhibit 3 does not appear on defendants' exhibit G.  DeGroff 
 
         disclosed that he was not employed by Overland at the time 
 
         claimant was injured.  DeGroff revealed that he is the son-in-law 
 
         of Hogarth. DeGroff stated that Hogarth formerly owned American 
 
         Driver Service in partnership with Jim Roberts.  On redirect, 
 
         DeGroff stated that the $726.16 was paid by American Driver 
 
         Service.  DeGroff also identified defendants' exhibit H as 
 
         showing that claimant was on the continuous employment at 
 
         American Driver Service or Overland Driver Service.  On further 
 
         cross-examination, DeGroff identified Ron Chilcott as the former 
 
         general manager of Overland.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and evidence.
 
         
 
              Iowa Code section 85.36 (1981) states in part:
 
         
 
                   The basis of compensation shall be the weekly earnings 
 
              of the injured employee at the time of the injury.  Weekly 
 
              earnings means gross salary, wages, or earnings of an 
 
              employee to which such employee would have been entitled had 
 
              he worked the customary hours for the full pay period in 
 
              which he was injured, as regularly required by his employer 
 
              for the work or employment for which he was employed, 
 
                                                
 
                                                         
 
                   computed or determined as follows and then rounded to the 
 
              nearest dollar:
 
         
 
                   ....
 
         
 
                   6.  In the case of an employee who is paid on a daily, 
 
              or hourly basis, or by the output of the employee, the 
 
              weekly earnings shall be computed by dividing by thirteen 
 
              the earnings, not including overtime or premium pay, of said 
 
              employee earned in the employ of the employer in the last 
 
              completed period of thirteen consecutive calendar weeks 
 
              immediately preceding the injury.
 
         
 
         (Emphasis added.)
 
         
 
                                     ANALYSIS
 
         
 
              The greater weight of evidence establishes that claimant was 
 
         paid $.16 per mile.  DeGroff's and Hogarth's contention that the 
 
         $.03 was for motel and meal expenses is contrary to the driver 
 
         settlement sheets which show motel and meal expenses as 
 
         deductions from the cash advance.  DeGroff admits that he was not 
 
         an employee of Overland or American Driver Service at the time 
 
         claimant was injured and that Ron Chilcott was general manager at 
 
         the time of claimant's injury.
 
         
 
              Claimant's exhibit 3 discloses the gross pay that claimant 
 
         received for the months of March, April, May and June 1981.  The 
 
         information contained in claimant's exhibit 3 is also contained 
 
         in claimant's exhibits 1, 2 and 5.  Defendants' contention that 
 
         the March 13, 1981 $727.16 payment is for work done outside the 
 
         13 week period preceding claimant's injury (March 6 through June 
 
         5, 1981) is rejected as it is based on pure speculation.  The 
 
         payments reflected on claimant's exhibit 3 do not contain the 
 
         additional $.03 per mile which claimant received.  The 
 
         appropriate rate will be calculated by adding the additional $.03 
 
         per mile to the total set out in claimant's exhibit 3:
 
         
 
                             Gross Pay @ $.13
 
                             plus Pickups &       Additional
 
            March 1981       Layovers               $.03    
 
         
 
         
 
            March 13            $727.16     +       $123.96  =   $851.12
 
            March 20             421.72     +         97.32  =    519.04
 
         
 
            April 1981
 
         
 
            April 10             375.57     +         86.67  =    462.24
 
            April 17             626.98     +        127.98  =    754.96 
 
            April 17             226.59     +         52.29  =       
 
                                                                 278.88
 
         
 
            May 1981
 
         
 
            May 1                220.87     +         50.97  =    271.84
 
            May 8                566.10     +        119.10  =    685.20
 
            May 8                210.99     +         48.69  =    259.68
 
            May 22               591.89     +        136.59  =    728.48
 
         
 
            June 1981
 
         
 
            June 5               548.03     +        114.93  =    662.96
 
         
 
                                                      TOTAL    $5,474.40
 
         
 
              The total is then divided by 13 to arrive at a gross wage of 
 
         $421 per week.  Claimant testified that he is married with two 
 
         children who were ages 24 and 18 at the time of the injury.  
 
         Using the workers' compensation benefit schedule for July 1, 1980 
 
         the rate of weekly compensation is $253.61.
 
         
 
              The greater weight of evidence establishes that claimant was 
 
         married with two dependent children at the time he was injured.
 
         
 
              The greater weight of evidence causally connects the medical 
 
         treatment claimant received for the ulcer, gall bladder and 
 
         chronic pancreatitis with claimant's work injury.  Doctors 
 
         Fitzgerald, Albano, and Conroy opine that claimant's ulcer 
 
         condition was the result of the stress and medication involved in 
 
         the treatment of claimant's work injury.  Doctors Conroy and 
 
         Golnick causally connect claimant's gall bladder and chronic 
 
         Pancreatitis conditions to the work injury.
 
         
 
              As a result of claimant's third party settlement in this 
 
         matter, defendants are entitled to credit against the medical 
 
         expenses awarded in this section.  Defendants' credit is 
 
         calculated as follows:
 
         
 
             Third party settlement                   $100,000.00
 
             Claimant paid to insurance carrier        -58,837.79
 
             See claimant's exhibits 6 and 7
 
             Attorney's fees-claimant's exhibit 7      -12,348.66
 
             See section 85.22(1) Iowa Code and
 
             Higgins v. Peterson II Iowa
 
               Iowa Industrial Commissioner Report
 
               199 (1982).                                       
 
                                                      $ 28,813.55
 
             Medical expenses paid by
 
               defendants since 10-9-83
 
                                                
 
                                                         
 
               See claimant's exhibit 14               + 2,365.00
 
             Defendants' credit                       $ 31,178.55
 
         
 
              Finally, defendants argue that claimant is not entitled to 
 
         recover medical expenses incurred in violation of the memorandum 
 
         of settlement and consent to settlement entered into by claimant 
 
         and states that:  "Any expenditures greater than $1,000.00 on 
 
         account of medical or other services shall not be  incurred by 
 
         Theodore L. Courchaine without approval of Overland Driver 
 
         Service and Farmers Insurance Group in keeping with the rights 
 
         of the employer under Section 85.27."  Claimant's exhibit 6, pp. 
 
         3-4.  The agreement was filed with this agency on October 13, 
 
         1983.
 
         
 
              This provision limiting medical expenditures by claimant 
 
         falls for at least two reasons.  First, it is apparent that this 
 
         agreement was more than a consent to settlement under Iowa Code 
 
         section 85.22(b)(4).  This agreement appears also to be a full 
 
         commutation terminating claimant's rights to future medical 
 
         benefits.  Nevertheless, whatever this agreement may be, it was 
 
         never approved by this agency and is not enforceable by the 
 
         industrial commissioner.  Second, claimant needed no 
 
         authorization from defendants for emergency medical treatment and 
 
         the gall bladder surgery was performed on an emergency basis.
 
         
 
              Defendants present no argument on appeal concerning the 
 
         extent of claimant's disability.  Claimant is 52 years old with a 
 
         GED and is functioning in the dull normal range of intelligence. 
 
         Claimant currently experiences bowel problems due to his 
 
         pancreatitis and severe back and leg pain.  Claimant has 
 
         experienced memory lapses due to the injury.  Claimant has 
 
         attempted to sell cars and do carpentry work but was unsuccessful 
 
         because he had to go to the toilet too frequently.  The injury 
 
                                                                  
 
                                                         
 
         resulted in multiple injuries to claimant's back, neck and brain. 
 
         Claimant's treating physician, Dr. Golnick, opines that there is 
 
         practically no chance that claimant will ever return to truck 
 
         driving.  The greater weight of evidence establishes that 
 
         claimant is permanently and totally disabled.
 
         
 
                                  FINDINGS OF FACT
 
         
 
              1.  Claimant sustained injuries to his back and neck on June 
 
         5, 1981 when the truck he was driving for defendant-employer 
 
         Overland Driver Service collided with an oncoming car and rolled 
 
         down an embankment.
 
         
 
              2.  As a result of the stress and medication used to treat 
 
         claimant's injury, claimant developed an ulcer which required 
 
         surgical treatment.
 
         
 
              3.  As a result of the injury, claimant developed gall 
 
         bladder problems which required emergency surgery to remove the 
 
         gall bladder.
 
         
 
              4.  As a result of the injury, claimant developed chronic 
 
         pancreatitis.
 
         
 
              5.  Claimant is 52 years old, has a GED, and is functioning 
 
         in the dull normal range of intelligence.
 
         
 
              6.  Claimant has attempted to sell cars and do carpentry 
 
         work but was unsuccessful because he has to go to the toilet too 
 
         frequently.
 
         
 
              7.  Claimant has problems sleeping and is only able to sleep 
 
         between 10 to 12 minutes at a time.
 
         
 
              8.  Claimant currently experiences severe back and leg 
 
         pain.
 
         
 
              9.  Claimant has had memory lapse problems as a result of 
 
         the injury.
 
         
 
              10.  Claimant is permanently and totally disabled.
 
         
 
              11.  At the time of the injury claimant was married with two 
 
         dependent children.
 
         
 
              12.  Claimant was paid $.16 per mile, $25 per pickup except 
 
         for the first pickup and $40 per day for layovers.
 
         
 
              13.  Claimant's rate of weekly compensation is $253.61.
 
         
 
              14.  Claimant entered into a third-party settlement as a 
 
         result of the June 5, 1981 work injury under which claimant 
 
         received $100,000.00.
 
         
 
              15.  On October 11, 1983 claimant entered into a consent to 
 
                                                
 
                                                         
 
         settlement agreement with defendants under which he paid 
 
         $58,837.79 to defendants for compensation and medical expenses 
 
         paid as a result of his June 5, 1981 injury.
 
         
 
              16.  Claimant incurred $12,348.66 in attorneys' fees as a 
 
         result of the third-party settlement.
 
         
 
              17.  Defendants have paid $2,365.00 toward claimant's 
 
         medical expenses since the consent to settlement.
 
         
 
              18.  Defendants have $31,178.55 in credit against any award 
 
         made in this decision.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              Claimant has established a causal connection between his 
 
         June 5, 1981 work injury and the medical treatment for the ulcer, 
 
         gall bladder and chronic pancreatitis conditions.
 
         
 
              Claimant has established a causal connection between his 
 
         June 5, 1981 work injury and his present disability.
 
         
 
              Claimant has established that he is permanently and totally 
 
         disabled as a result of his injury on June 5, 1981.
 
         
 
              Claimant is entitled to $12,348.66 in attorneys' fees for 
 
         his third-party settlement.
 
         
 
              Defendants are entitled to a credit of $28,813.55 as a 
 
         result of claimant's third-party settlement; and defendants are 
 
         entitled to a credit of $2,365.00 for medical expenses paid since 
 
         the consent to settlement.
 
         
 
              Claimant's weekly rate of compensation is $253.61.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
                                        
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant's medical expenses associated 
 
         with the treatment of his ulcer, gall bladder, and chronic 
 
         pancreatitis conditions.
 
         
 
              That defendants pay claimant permanent total disability 
 
         benefits at the weekly rate of two hundred fifty-three and 61/100 
 
         dollars ($253.61) commencing June 5, 1981 for the period of 
 
         claimant's disability.
 
         
 
              That defendants be given thirty-one thousand one hundred 
 
         seventy-eight and 55/100 dollars ($31,178.55) credit for medical 
 
         expenses already paid and for claimant's third-party settlement.
 
         
 
              That defendants pay accrued amounts in a lump sum together 
 
                                                
 
                                                         
 
         with interest pursuant to section 85.30 of the Iowa Code.
 
         
 
              That defendants pay the costs of this proceeding including 
 
         the costs on appeal pursuant to Division of Industrial Services 
 
         Rule 343-4.33.
 
         
 
              That defendants file claim activity reports pursuant to 
 
         Division of Industrial Services Rule 343-3.1(2) as requested by 
 
         the agency.
 
         
 
         
 
              Signed and filed this 29th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Peter J. Peters
 
         Attorney at Law
 
         233 Pearl Street
 
         P.O. Box 938
 
         Council Bluffs, Iowa  51502
 
         
 
         Mr. William J. Dunn
 
         Attorney at Law
 
         800 Commercial Federal Tower
 
         2120 South 72nd St.
 
         Omaha, Nebraska  68124
 
         
 
         Mr. Robert Laubenthal
 
         Attorney at Law
 
         370 Midlands Mall
 
         P.O. Box 249
 
         Council Bluffs, Iowa  51502
 
 
 
         
 
 
            
 
 
 
          
 
 
 
                                            1000-1402.40-1402.60
 
                                            1703-1704-1804-
 
                                            2301-3000-3300-3400
 
                                            Filed January 29, 1988
 
                                            DAVID E. LINQUIST
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         THEODORE L. COURCHAINE,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  File No. 723925
 
         OVERLAND DRIVER SERVICE,
 
                                                    A P P E A L
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         FARMERS INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40 - 1804
 
         
 
              The greater weight of evidence established that claimant was 
 
         permanently and totally disabled.
 
         
 
         1402.60 - 2301
 
         
 
              Claimant established through medical testimony that the 
 
         medical received for his ulcer, gall bladder and pancreatitis 
 
         conditions was causally connected to his work injury.  
 
         Defendants' arguments that these medical expenses were incurred 
 
         in violation of a consent to settlement was rejected as that 
 
         agreement was never approved by this agency.
 
         
 
         1703 - 1704 - 3400
 
         
 
              Defendants allowed credit for benefits already paid. 
 
         Defendants allowed credit for amounts received by claimant under 
 
         a third party settlement agreement.
 
         
 
         1000 - 3300 - 3400
 
         
 
              Claimant entitled to attorney's fees for his third party 
 
         settlement.  Claimant entitled to credit for amounts he has 
 
         already paid to defendant insurance carrier from his third party 
 
         settlement.
 
         
 
         3000
 
                                                         
 
              Greater weight of evidence supported claimant's contention 
 
         that he was paid $.16 per mile.
 
 
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY A. NORTHRUP,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 724196
 
            TAMA MEAT PACKING,            :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            RANGER INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            THE SECOND INJURY FUND,       :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendant Second Injury Fund appeals from an 
 
            arbitration decision awarding claimant second injury fund 
 
            benefits based on an industrial disability of 60 percent and 
 
            an impairment of 12 percent of the left arm and an 
 
            impairment of 14 percent of the right arm.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing; joint exhibits 1 through 12; and the 
 
            agency files on file numbers 690703 and 724196.  Second 
 
            Injury Fund and claimant filed briefs on appeal.
 
            
 
                                      issues
 
            
 
                 The issues on appeal are whether claimant is entitled 
 
            to benefits from Second Injury Fund and, if so, the amount 
 
            of the benefits.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision filed March 27, 1989 
 
            adequately and accurately reflects the pertinent evidence 
 
            and it will not be reiterated herein.  Additional evidence 
 
            will be discussed as necessary in the analysis and the 
 
            findings of fact.
 
            
 
                                  applicable law
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and evidence.  The following 
 
            additional citation is also appropriate.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 The Iowa Supreme Court most recently discussed the 
 
            liability of the Second Injury Fund in Second Injury Fund v. 
 
            Neelans, 436 N.W.2d 355 (Iowa 1989).  The court stated at 
 
            358:
 
            
 
                    The language of the second injury act supports 
 
                 this conclusion by providing that "[t]he employer 
 
                 shall be liable only for the degree of disability 
 
                 which would have resulted from the latter injury 
 
                 if there had been no pre-existing disability."  To 
 
                 hold otherwise would in effect penalize the 
 
                 employer who hired a person with a prior injury.  
 
                 The purpose of Second Injury Fund statutes was to 
 
                 provide a more favorable climate for the 
 
                 employment of persons injured through service in 
 
                 World War II.  Jackwig, The Second Injury Fund of 
 
                 Iowa:  How Complex Can a Simple Concept Become?, 
 
                 28 Drake L.Rev. 889, 890-91 (1979).  Similar 
 
                 considerations still weigh heavily in our 
 
                 interpretation of the second injury act.  See, 
 
                 e.g., Anderson v. Second Injury Fund, 262 N.W.2d 
 
                 789, 791-92 (Iowa 1978) (purpose to encourage 
 
                 employers to hire handicapped workers).
 
            
 
                    In the present case, there seems to be no 
 
                 argument about the extent of the second injury 
 
                 standing alone: it is a scheduled injury which 
 
                 does not extend to the body as a whole, even 
 
                 though the cumulative effect of this injury and 
 
                 the prior injuries was to cause such disability.
 
            
 
                    In this case, if it had not been for the prior 
 
                 injuries sustained by Neelans, the employer would 
 
                 be liable only to the extent provided by the 
 
                 schedule for a leg injury.  To hold that the 
 
                 present employer would be liable for payment of a 
 
                 greater amount as a result of the preexisting 
 
                 injuries would be inconsistent with the purpose 
 
                 and language of the statute.
 
            
 
                    The industrial commissioner correctly ruled 
 
                 that the Second Injury Fund should be responsible 
 
                 for the industrial disability, less the total of 
 
                 the scheduled injuries, or a total of 262 weeks.  
 
                 Accordingly, we reverse and remand for 
 
                 reinstatement of the order by the commissioner.
 
            
 
                                     analysis
 
            
 
                 The issues to be discussed are whether claimant is 
 
            entitled to second injury fund benefits and, if so, the 
 
            amount of the benefits.  Several matters must be resolved in 
 
            deciding the main issue.  The first matter to be resolved is 
 
            Second Injury Fund's argument that it is entitled to credit 
 
            for the disability of both scheduled injuries.  Second 
 
            Injury Fund is correct and Neelans, 436 N.W.2d 355, so held.  
 
            It would appear that the deputy's failure to give credit for 
 
            both injuries was due to oversight.  (The deputy gave credit 
 
            for only the first of two injuries).
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 The second matter to be resolved is whether the amount 
 
            of credit for the injuries should be the amount of 
 
            impairment that the employer and claimant agreed to in the 
 
            settlement agreements and commutations.  Second Injury Fund 
 
            argues that it should be given credit for the amount of 
 
            settlement agreements and commutations entered into between 
 
            the employer and the claimant.  Claimant responds by arguing 
 
            that the Second Injury Fund is not bound by the settlement 
 
            agreements and commutations.  In order to discuss this 
 
            matter certain facts are necessary.
 
            
 
                 Agency records in this matter reveal the following.  In 
 
            file number 690703 claimant alleged an injury to his left 
 
            arm on December 19, 1981.  An agreement for settlement and 
 
            full commutation was filed in that matter.  The full 
 
            commutation was approved by a deputy industrial commissioner 
 
            on September 26, 1988.  The basis of the agreement for 
 
            settlement and commutation was that the employer was to pay 
 
            claimant for a 100 percent impairment of the left arm.  In 
 
            file number 724196 claimant alleged an injury to his right 
 
            arm on January 24, 1983.  An agreement for settlement and 
 
            full commutation was filed in that matter.  The full 
 
            commutation was approved by a deputy industrial commissioner 
 
            on September 26, 1988.  The basis for settlement and 
 
            commutation was that the employer was to pay claimant for a 
 
            46 percent impairment of the right arm.  In both matters 
 
            claimant was represented by the same counsel as in the 
 
            current matter.
 
            
 
                 Claimant is right that Second Injury Fund is not bound 
 
            by the settlement agreements and commutations.  Second 
 
            Injury Fund is not bound by these agreements because the 
 
            employer and the claimant could reach an agreement that 
 
            would be detrimental to the Second Injury Fund.  See Johnson 
 
            v. George A. Hormel & Co., (Appeal Decision, June 21, 1988).
 
            
 
                 However, a full commutation presumes that claimant's 
 
            disability can be and has been definitely determined.  See 
 
            McCollough v. Campbell Mill & Lumber Co., 406 N.W.2d 812 
 
            (Iowa App. 1987).  A full commutation is binding on 
 
            claimant.  A claimant should not be allowed to enter into a 
 
            settlement and full commutation fixing the amount of 
 
            disability and then later argue in seeking second injury 
 
            fund benefits that the disability is something less than the 
 
            basis of the settlement and commutations.  To hold otherwise 
 
            would be to give claimant a windfall at the expense of the 
 
            Second Injury Fund.  The Second Injury Fund should receive 
 
            credit for the amount of impairment approved in the 
 
            settlement agreement and commutations.
 
            
 
                 The next matter to be resolved is the extent of 
 
            claimant's cumulative industrial disability.  In order to 
 
            make this determination it is necessary to determine the 
 
            actual impairment of each of claimant's arms.  There are 
 
            numerous ratings in the records by various physicians.  The 
 
            rating of Carl O. Lester, M.D., orthopedic surgeon, cannot 
 
            be relied upon.  The rating did not use the AMA guidelines, 
 
            was made upon an examination only, appears to be influenced 
 
            by an earlier rating by Arnis B. Grundberg, M.D., who later 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            lowered his rating, and is inconsistent in that it gives a 
 
            50 percent "disability" rating for both the upper extremity 
 
            and the left hand.  Dr. Grundberg gave impairment ratings of 
 
            20 percent of the left hand and 25 percent of the right hand 
 
            on February 28, 1984 but he expected the impairments to 
 
            improve with time.  Dr. Grundberg gave no subsequent 
 
            ratings.  His ratings cannot be relied upon because he 
 
            thought claimant would improve so there is no way of knowing 
 
            what his "final" ratings would be.  This is particularly 
 
            true in light of the fact that he had previously given a 50 
 
            percent rating of the left hand and expected further 
 
            improvement with time.  Claimant was also examined by John 
 
            R. Walker, M.D., who apparently only saw claimant one time 
 
            in anticipation of litigation.  Dr. Walker based his 
 
            opinions on the amount of nerve injury but his standard for 
 
            determining the impairment is not given and his opinion can 
 
            be given little weight.
 
            
 
                 Claimant was evaluated by William W. Eversmann, Jr., 
 
            M.D., who conducted a series of tests to rate claimant's 
 
            impairments.  Although he initially gave claimant higher 
 
            impairment ratings, he subsequently gave impairment ratings 
 
            (January 13, 1984) which he stated were consistent with the 
 
            guidelines published by the American Medical Association and 
 
            the American Society for Surgery of the Hand.  Dr. 
 
            Eversmann's ratings were 20 percent of the left upper 
 
            extremity and ten percent of the right upper extremity.  
 
            William F. Blair, M.D., an orthopedic surgeon from the 
 
            University of Iowa Hospitals and Clinics, was the primary 
 
            treating physician.  As the deputy correctly noted Dr. 
 
            Blair's qualifications and past experiences in a teaching 
 
            hospital are impressive and he has had the most clinical 
 
            experience with claimant.  Dr. Blair's ratings were 14 
 
            percent of the right upper extremity and 12 percent of the 
 
            left upper extremity (Joint Exhibit 11, page 23, lines 
 
            16-22).  His ratings and Dr. Eversmann's later more reliable 
 
            ratings were consistent.  The ratings of Dr. Blair and Dr. 
 
            Eversmann are used to conclude that claimant has an 
 
            impairment of the left upper extremity of 12-20 percent and 
 
            an impairment of the right upper extremity of 10-14 percent.
 
            
 
                 Claimant was born July 21, 1953 and was 29 years old at 
 
            the time of the injury on January 24, 1983.  He has 
 
            impairments of each upper extremity discussed above.  
 
            Claimant has a high school education and potentially he is 
 
            retrainable.  The vocational rehabilitation report (joint 
 
            exhibit 6) indicates that claimant has normal intelligence.  
 
            Because of loss of strength and loss of feelings in his 
 
            hands claimant is unable to utilize his past employment 
 
            skills.  Claimant's wages at the time of the injuries was 
 
            $6.20 per hour and subsequent jobs he has had have paid 
 
            $3.65 per hour.  When all relevant factors are considered 
 
            claimant has suffered a cumulative industrial disability of 
 
            50 percent as a result of work injuries on December 19, 1981 
 
            and January 24, 1983.
 
            
 
                 Second Injury Fund liability is claimant's cumulative 
 
            industrial disability less the credit for the benefits of 
 
            amount of impairment agreed to by claimant in the settlement 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            agreements and commutations.  The benefits of claimant's 
 
            cumulative industrial disability is 250 weeks (500 weeks x 
 
            50%).  The credit for benefits of the left arm is 250 weeks 
 
            (250 weeks x 100%) and the credit for benefits of the right 
 
            arm is 115 weeks (250 weeks x 46%).  The total credits from 
 
            the two injuries (365 weeks) exceeds the benefits of the 
 
            cumulative industrial disability (250 weeks).  Therefore, 
 
            Second Injury Fund has no liability in this matter.
 
            
 
                                 findings of fact
 
            
 
                 1.  Settlement agreements and commutations approved 
 
            benefits to claimant for a 100 percent impairment to the 
 
            left arm and 46 percent to the right arm.
 
            
 
                 2.  Claimant sustained an impairment of 12-20 percent 
 
            to his left arm from a work injury on December 19, 1981 and 
 
            an impairment of 10-14 percent to his right arm from a work 
 
            injury on January 24, 1983.
 
            
 
                 3.  Claimant was born July 21, 1953 and was 29 years 
 
            old at the time of the work injury on January 24, 1983.
 
            
 
                 4.  Claimant has a high school education and normal 
 
            intelligence.
 
            
 
                 5.  Claimant has had a loss of strength and loss of 
 
            feelings in his hands.
 
            
 
                 6.  Because of his condition claimant is unable to 
 
            utilize his past employment skills which has been manual 
 
            labor.
 
            
 
                 7.  Claimant has had a loss of wages.
 
            
 
                 8.  Claimant's cumulative loss of earning capacity as a 
 
            result of injuries on December 19, 1981 and January 24, 1983 
 
            is 50 percent.
 
            
 
                                conclusion of law
 
            
 
                 Claimant has not proved entitlement to benefits from 
 
            Second Injury Fund.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant take nothing from this appeal.
 
            
 
                 That defendant, Second Injury Fund, pay the cost of 
 
            this action including transcription of the arbitration 
 
            hearing.
 
            
 
                 Signed and filed this ____ day of March, 1990.
 
            
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                 DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas M. Wertz
 
            Attorney at Law
 
            4089 21st Avenue SW
 
            Suite 114
 
            Cedar Rapids, Iowa 52404
 
            
 
            Mr. W. C. Hoffmann
 
            Mr. Joseph S. Cortese II
 
            Attorneys at Law
 
            418 6th Ave., Suite 500
 
            Des Moines, Iowa 50309-2421
 
            
 
            Mr. Greg Knoploh
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            3203; 3301; 3303.10
 
            Filed March 19, 1990
 
            David E. Linquist
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY A. NORTHRUP,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 724196
 
            TAMA MEAT PACKING,            :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            RANGER INSURANCE,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            THE SECOND INJURY FUND,       :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            3203; 3301; 3303.10
 
            Claimant entered into agreement for settlement and received 
 
            full commutation with the employer for two separate work 
 
            injuries.  While the settlement and commutation is not 
 
            binding on the Second Injury Fund (which was not party), 
 
            they are binding on claimant.  Second Injury Fund given 
 
            credit for amount of compensation received by claimant in 
 
            settlement and commutation with employer.  Because the 
 
            credit exceeded the amount of claimant's cumulative 
 
            industrial disability, claimant took nothing from the Second 
 
            Injury Fund.  Deputy's decision modified on appeal.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY A. NORTHRUP,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 724196
 
         TAMA MEAT PACKING,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         RANGER INSURANCE,                             F I L E D
 
         
 
              Insurance Carrier,                      MAR 27 1989
 
         
 
         THE SECOND INJURY FUND,              IOWA INDUSTRIAL COMMISSIONER
 
         
 
         and
 
         
 
         THE SECOND INJURY FUND,
 
         
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Larry A. 
 
         Northrup, claimant, against The Second Injury Fund, defendant, a 
 
         special fund created by statute for additional workers' 
 
         compensation benefits as a result of alleged injuries on December 
 
         19, 1981 and January 24, 1983.  On May 9, 1988, a hearing was 
 
         held on claimant's petition and the matter was considered fully 
 
         submitted at the close of this hearing.  The companion case 
 
         involving the employer at the time of the injuries, Tama Meat 
 
         Packing Corporation (hereinafter referred to as Tama Pack) was 
 
         settled subsequent to this hearing but before this decision.  
 
         This decision was considerably delayed because the undersigned 
 
         had been mistakenly informed by other agency personnel that the 
 
         second injury fund case had also been settled.  Last week, the 
 
         undersigned was informed otherwise.
 
         
 
              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 and his 
 
         wife Susan. The exhibits received into the evidence at the 
 
         hearing are listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
                                                
 
                                                         
 
         
 
              1.  On December 19, 1981 and again on January 24, 1983, 
 
         claimant received injuries which arose out of and in the course 
 
         of his employment with Tama Pack.
 
         
 
              2.  Permanent disability benefits shall begin as of May 31, 
 
         1984.
 
         
 
              3.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $186.40 
 
         per week.
 
         
 
                                    ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
               I.  Whether there is a causal relationship between the work 
 
         injury and the claimed disabilities; and,
 
         
 
              II.  The extent of claimant's entitlement to weekly benefits 
 
         for disability from the second injury fund.
 
         
 
                           SUMMARY OF THE EVIDENCE
 
         
 
              Whether or not specifically referred to in the following 
 
         brief summary prepared by the undersigned, all of the evidence 
 
         received at the hearing was independently reviewed and considered 
 
         in arriving at this decision.  Any conclusionary statements in 
 
         the following summary should be considered as preliminary 
 
         findings of fact.
 
         
 
              Claimant testified that he worked for Tama Pack from January 
 
         1980 until October 1983 as a meat packer.  His duties consisted 
 
         of general meat packing activities in an assembly line type of 
 
         work involving the use of a cutting knife.  Claimant earned 
 
         approximately $6.20 per hour in his job at the time of the 
 
         alleged injuries.  Claimant testified that he was fired from Tama 
 
         Pack subsequent to his second injury in a dispute with his 
 
         foreman. Company records indicate that he quit after receiving 
 
         discipline for a skirmish with fellow women employees.  In 
 
         records claimant submitted to a local welfare agency, HACAAP, in 
 
         1985 claimant stated that he quit to help his mother operate the 
 
         family farm. Claimant did in fact assist his mother in farming 
 
         while drawing unemployment compensation benefits after leaving 
 
         Tama Pack. Claimant denies any hand or arm problems prior to 
 
         December 1981 and no records have been submitted to controvert 
 
         this claim.
 
         
 
              The facts surrounding the work injuries are not in dispute. 
 
         Claimant testified that on December 19, 1981 and again on January 
 
         24, 1983, he accidentally cut his left and right arms with a 
 
         knife while working as a meat cutter at Tama Pack.  The 1981 
 
         injury, involving a deep laceration to the left wrist area, 
 
         almost completely severed the median nerve, required surgical 
 
                                                
 
                                                         
 
         repair and a long period of convalescence.  Claimant stated that 
 
         he suffered a loss of feeling to his fingers and a loss of 
 
         strength as a result of this injury.  Claimant also states that 
 
         he has constant pain and numbness in his left hand today which 
 
         limits his ability to grasp and hold objects.  Claimant returned 
 
         to work, following his first injury, on June 29, 1982, without 
 
         specific work restrictions by the primary post-operative treating 
 
         physician, William Blair, M.D., an orthopedic surgeon from the 
 
         University of Iowa Hospitals and Clinics.  Dr. Blair felt that 
 
         despite his loss of feeling and permanent partial impairment, 
 
         claimant should have been able to return at that time to his 
 
         regular meat cutting employment.  A second opinion was obtained 
 
         from two orthopedic surgeons, Carl O. Lester, M.D., and Arnis B. 
 
         Grundberg, M.D.  Dr. Lester indicated in June of 1982 that 
 
         claimant should not return to using a knife or to cold 
 
         environments due to his loss of sensation and the risk of future 
 
         injury.
 
         
 
              On January 24, 1983, claimant was again using a knife which 
 
         slipped from his left hand and cut his right forearm almost 
 
         completely severing the ulnar nerve and adjacent tendons.  Again, 
 
         surgical repair was necessary and claimant was off several months 
 
         in an attempt to recover.  Claimant also complained of continued 
 
         numbness in his right arm and hand but his major concern was loss 
 
         of strength and dexterity to his right hand.  Claimant's fingers 
 
         on his right side also experienced muscle spasms.  Claimant's 
 
         right arm has now atrophied according to attending physicians. 
 
         Claimant then returned to work for six months after this last 
 
         injury.  At that time claimant testified that he was bounced 
 
         around a lot and worked in various jobs involving both use of 
 
         knives and repetitive use of his hands in a cold environment. 
 
         Claimant testified that this work bothered him considerably.
 
         
 
              Since leaving Tama Pack claimant has worked in several jobs 
 
         but, according to claimant, all of these jobs caused him severe 
 
         physical problems.  Claimant worked briefly as a metal polisher 
 
         and as a meat cutter in another meat packing plant.  Claimant's 
 
         employment ended after only a couple of weeks on each of these 
 
         jobs.  Claimant explained that he could not handle heavy 
 
         repetitive work because of his inadequate strength and endurance 
 
         in his hands.  Claimant worked a few months in a "work-fair" 
 
         program sponsored by HACAAP for unemployed fathers.  Claimant was 
 
         not paid in this job and the work was necessary to qualify his 
 
         family for welfare benefits.  Claimant was initially assigned to 
 
         various manual labor tasks in a city traffic department.  This 
 
         involved digging and other simple manual tasks.  Claimant said 
 
         that these duties caused his wrists to ache considerably.  
 
         Claimant was also assigned to painting activity in a city 
 
         pollution control plant.  Again, claimant expressed difficulty 
 
         with aching in his hands and shoulders from such activity.  
 
         Claimant then was hired by a local pizza shop to make and deliver 
 
         pizzas.  Claimant worked in this job from May to August 1986 and 
 
         earned $3.65 per hour over a 32 hour week.  Claimant testified 
 
         that this job ended when the business closed.  Claimant has looked 
 
         for work since October 1986 and has submitted an extensive list of 
 
                                                
 
                                                         
 
         perspective employers.  Claimant said that he now is limited in 
 
         employment seeking due to home babysitting activity while his wife 
 
         works but that he still applies to employers when he "hears of a 
 
         lead".
 
         
 
              Claimant has sought assistance from the Vocational 
 
         Rehabilitation Department of the State of Iowa.  According to 
 
         the.department's records, claimant is not currently competitive 
 
         employable due to his disability and lack of useable transferable 
 
         skills.  Also, the department believes that claimant has a poor 
 
         emotional state and attitude which detracts from his vocational 
 
         rehabilitation prognosis.  Dr. Blair stated on one occasion that 
 
         although claimant's attitude did not worsen his condition, it 
 
         detours from attempts to return him to gainful employment and 
 
         pursue vocational rehabilitation.
 
         
 
              Various physicians have given impairment ratings on 
 
         claimant's hand conditions.  Dr. Blair, in his most recent 
 
         evaluation, states that due to a loss of sensation, claimant has a 
 
         12 percent permanent partial impairment to the left extremity.  
 
         Due to a loss of strength, Dr. Blair opines that claimant has a 14 
 
         percent permanent partial impairment to the right extremity.  The 
 
         doctor believes that claimant should be restricted from handling 
 
         knives or other tools or devices which could cause harm.  Dr. 
 
         Blair states that claimant should refrain from frequent lifting 
 
 
 
                           
 
                                                         
 
         over 50 pounds with both hands and no lifting over 10 pounds with 
 
         one hand.  Dr. Blair also felt that claimant should not operate 
 
         any hand tools or hand operated powered equipment.
 
         
 
              Dr. Lester opines that claimant suffers from a 50 percent 
 
         permanent partial disability to the upper extremity or 50 percent 
 
         of the left hand but felt that this would improve with time.  Dr. 
 
         Grundberg states that claimant has a 20 percent permanent partial 
 
         impairment to the left hand and a 25 percent permanent partial 
 
         impairment to the right hand.  John R. Walker, M.D., another 
 
         orthopedic surgeon from Waterloo, opines that claimant has a 20 
 
         percent permanent partial impairment to the right extremity and a 
 
         40 percent permanent partial impairment to the left extremity. 
 
         Finally, following a long series of extensive dexterity and 
 
         strength testing of claimant, William W. Eversmann, Jr., M.D., 
 
         another orthopedic surgeon, opines that claimant has a 45 percent 
 
         permanent partial impairment of the right extremity and a 68 
 
         percent permanent partial impairment of the left extremity.  Dr. 
 
         Eversmann adds that he diagnosed another problem with claimant's 
 
         right hand, namely carpal tunnel syndrome.  Dr. Eversmann stated 
 
         that he surgically corrected this problem in 1986.  Dr. Eversmann 
 
         opines that all of claimant's permanent partial impairment was 
 
         caused by the two original work injuries at Tama Pack.
 
         
 
              Claimant testified that his past employment primarily 
 
         consisted of manual labor work in manufacturing and meat packing 
 
         work.  Claimant is 35 years of age and has a high school 
 
         education.  Claimant received training as a welder at a local 
 
         community college after high school but only worked briefly as a 
 
         welder.  Claimant testified that he performed some welding odd 
 
         jobs at home but due to his hand condition he is unable to hold 
 
         the welding "rods."  Claimant testified that he is unable to 
 
         utilize his past employment skills of painting, meat cutting and 
 
         torch cutting due to a loss of strength and loss of feeling in 
 
         his hands.
 
         
 
              Claimant's demeanor and appearance at hearing indicated that 
 
         he was testifying truthfully.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
               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. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover. 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case at bar, claimant seeks additional disability 
 
         benefits from the second injury fund under Iowa Code sections 
 
         85.63 through 85.69.  Claimant has settled a disability claim 
 
         against his employer.  The second injury fund by statute was 
 
         created to compensate an injured worker for a permanent 
 
         industrial disability resulting from the combined effect of two 
 
         separate injuries to a scheduled member.  The purpose of such a 
 
         scheme of compensation was to encourage employers to hire or 
 
         retain handicapped workers.  See Anderson v. Second Injury Fund, 
 
         262 N.W.2d 789 (Iowa 1978).  There are three requirements under 
 
         the statute to invoke second injury fund liability.  First, there 
 
         must be permanent loss or loss of use of one hand, arm, foot, leg 
 
         or eye.  Secondly, there must be a permanent loss or the loss of 
 
         use of another such member or organ through a compensable 
 
         subsequent work injury.  Third, there must be permanent 
 
         industrial disability to the body as a whole arising from both 
 
         the first and second injuries which is greater in terms of 
 
         relative weeks of compensation than the sum of the scheduled 
 
         allowances for those injuries.
 
         
 
              According to a supreme court decision rendered in Second 
 
         Injury Fund v. Mich Coal Co., 274 N.W.2d 300, 304 (Iowa 1979), if 
 
         this agency finds as to claimant's present condition an 
 
         industrial disability to the body as a whole, the agency must 
 
         also make a finding "as to the degree of disability to the body 
 
                                                
 
                                                         
 
         as a whole of the claimant caused by the second injury."  Such 
 
         language appears to make employers at the time of the second 
 
         injury liable for disability benefits in excess of the prescribed 
 
         scheduled amounts set forth in Iowa Code section 85.34(2)(a-s).  
 
         However, Mich Coal merely stands for the proposition that when 
 
         the second injury effects loss of use of a member and also 
 
         extends to the body as a whole, a determination must be made as 
 
         to the degree of industrial disability caused by the second 
 
         injury.  It does not mean that a scheduled loss is to be rated 
 
         industrially.  Neelans v. John Deere Component Works, Iowa 
 
         Supreme Court Decision Number 88-399, filed February 22, 1989.  
 
         See also Fulton v. Jimmy Dean Meat Company, Industrial 
 
         Commissioner Appeal Decision filed July 23, 1986 (likewise 
 
         affirmed on appeal February 22, 1989).  When the second injury 
 
         alone results in industrial disability, the fund is liable for 
 
         the difference between the amount of the industrial disability 
 
         caused by the combined affects of the injuries and the total 
 
         amount of disability industrial and scheduled brought about by 
 
         the prior and second injury individually.  Neelans, Iowa Supreme 
 
         Court Decision Number 88-399, filed February 22, 1989.
 
         
 
              Given the numerous conflicting medical opinions in this 
 
         case, the views of the primary treating orthopedic surgeon, Dr. 
 
         William Blair, is selected as the most credible and convincing 
 
         with reference to the extent of claimant's disability.  Dr. 
 
         Blair's qualifications and past experiences in a teaching 
 
         hospital are impressive and he has had the most clinical 
 
         experience with claimant.  Dr. Blair appears to rely upon a very 
 
         traditional approach to impairment ratings and used the AMA 
 
         Guides.  There is one aspect, however, of Dr. Blair's views that 
 
         is deficient.  Dr. Blair felt that claimant's objective 
 
         evaluation test results were conflicting and stated that there 
 
         should be more testing to rule out intentional faking by 
 
         claimant.  Such additional and extensive testing was performed by 
 
         William Eversmann, M.D.  Dr. Eversmann was not convincing in the 
 
         use of such testing to arrive at his impairment rating and his 
 
         explanations concerning how such testing fits in with the 
 
         methodology used by standardized methods or guides to rate 
 
         impairments.  Such guides such as the AMA Guides are reliable 
 
         tools in the rating process.  However, the testing by Dr. 
 
         Eversmann did show eventual consistency especially after the 
 
         carpal tunnel syndrome was corrected.  Consequently, Dr. 
 
         Eversmann's testing was considered as an adequate showing that 
 
         claimant's claims of disability were indeed genuine and claimant 
 
         is found credible on this basis along with his observed demeanor 
 
         at hearing.
 
         
 
              Therefore, it will be found that in 1981 and 1983 claimant 
 
         received injuries resulting in a 12 percent permanent partial 
 
         impairment to the left extremity and a 14 percent permanent 
 
         partial impairment to the right extremity respectively.  Also, 
 
         the second injury in 1983 was limited to the right extremity and 
 
         did not extend into the body as a whole.  The disability for the 
 
         two injuries in terms of weeks of compensation under Iowa Code 
 
         section 85.34(2)(m) is 30 weeks (12 percent of 250 weeks) for the 
 
                                                
 
                                                         
 
         1981 injury and 35 weeks (14 percent of 250 weeks) for the 1983 
 
         injury. The undersigned uses 250 weeks because this is the 
 
         maximum allowable number of weeks for a total loss of arm under 
 
         Iowa Code section 85.34.  Pursuant to Iowa Code section 85.64, 
 
         the second injury fund payments, if any, will begin 35 weeks 
 
         after the agreed upon commencement date for permanent disability 
 
         benefits but that the fund's liability, if possible, will be 
 
         reduced by 30 weeks as a result of the first injury.
 
         
 
              To measure the second injury fund's liability in this case, 
 
         the industrial disability, if any, resulting from the combined 
 
         affects of the two injuries must be measured.  However, unlike 
 
         scheduled member disabilities, the degree of industrial 
 
         disability is not measured solely by the extent of a functional 
 
         impairment or loss of use of a body member.  A disability to the 
 
         body as a whole or an "industrial disability" is a loss of 
 
         earning capacity resulting from the work injury.  Diederich v. 
 
         Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A 
 
         physical impairment or restriction on work activity may or may 
 
         not result in such a loss of earning capacity.  The extent to 
 
         which a work injury and a resulting medical condition has 
 
         resulted in an industrial disability is determined from 
 
         examination of several factors.  These factors include the 
 
         employee's medical condition prior to the injury, immediately 
 
         after the injury and presently; the situs of the injury, its 
 
         severity and the length of healing period; the work experience of 
 
         the employee prior to the injury, after the injury and potential 
 
         for rehabilitation; the employee's qualifications intellectually, 
 
         emotionally and physically; earnings.prior and subsequent to the 
 
         injury; age; education; motivation; functional impairment as a 
 
         result of the injury; and inability because of the injury to 
 
         engage in employment for which the employee is fitted.  Loss of 
 
         earnings caused by a job transfer for reasons related to the 
 
                         
 
                                                         
 
         injury is also relevant.  Olson, 255 Iowa 1112, 1121, 125 N.W.2d 
 
         251, 257 (1963).  See Peterson v. Truck Haven Cafe,Inc., (Appeal 
 
         Decision, February 28, 1985).
 
         
 
              In the case sub judice, claimant's medical condition before 
 
         the two work injuries was excellent and he had no functional 
 
         impairments or ascertainable disabilities.  Claimant was able to 
 
         fully perform all physical tasks involving his arms.  Claimant's 
 
         past employments primarily involved the use of his arms in 
 
         various types of manual labor work in manufacturing and meat 
 
         packing plants.  Claimant's treating physician, Dr. Blair, has 
 
         given claimant significant permanent partial impairment ratings 
 
         to both arms.  More importantly, in an industrial disability 
 
         analysis, claimant's physicians have restricted claimant's work 
 
         activities by prohibiting tasks such as repetitive heavy lifting; 
 
         repetitive use of hand tools and hand operated power tools; 
 
         limited use of his hands in cold weather; and, limitations on the 
 
         repetitive use of his hands under prolonged basis.  Consequently, 
 
         claimant's medical condition prevents him from returning to his 
 
         former meat packing work and to most other work he has performed 
 
         in the past; the type of work for which he is best suited.  
 
         Although claimant was working at Tama Pack after the work 
 
         injuries, there was either accommodations made for his disability 
 
         or claimant was forced to violate physician imposed work 
 
         restrictions against using a knife and repetitive use of his 
 
         hands in cold environments.  This is not a showing that claimant 
 
         returned to suitable work.
 
         
 
              Claimant has raised the issue of the application of the 
 
         odd-lot doctrine in this case.  According to the Iowa Supreme 
 
         Court, this doctrine allows the claimant to establish a prima 
 
         facie case for unemployability and permanent total disability 
 
         benefits from a factual showing of a reasonable but unsuccessful 
 
         effort to find suitable work in the geographical area of his 
 
         residence.  If defendants fail to go forward with the evidence on 
 
         the issue of availability of suitable work to claimant, claimant 
 
         is entitled to an award of permanent total disability.  See 
 
         Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985).
 
         
 
              Claimant testified and the evidence shows that subsequent to 
 
         his employment at Tama Pack he has held various jobs.  This 
 
         evidence indicates that claimant is capable of employment.  Such 
 
         evidence also indicates that claimant has held jobs since his 
 
         injury and the loss of those jobs were not due to his disability. 
 
         There is also evidence from rehabilitation counselors and from 
 
         Dr. Blair that claimant has an attitude problem which adversely 
 
         effects his potential for vocational rehabilitation.  There is no 
 
         proof that this attitude problem is caused by his disability. 
 
         Consequently, such evidence does not invoke the burden shifting 
 
         features of the odd-lot doctrine because a reasonable effort to 
 
         seek alternative employment must be clearly shown.  However, an 
 
         inability to utilize the odd-lot doctrine is not evidence of a 
 
         lack of industrial disability.  Claimant has a very real and 
 
         severe disability which demands full and complete compensation.
 
         
 
                                                
 
                                                         
 
              Claimant is 35 years of age and in the middle of his working 
 
         career.  He should be at the most productive years of his life. 
 
         Consequently, his loss of future earnings from employment due to 
 
         disability is more severe than would be the case for a younger or 
 
         an older individual.
 
         
 
              In September, 1987, it was concluded by state vocational 
 
         rehabilitation counselors that claimant is not competitively 
 
         employable without further retraining and long-term work 
 
         adjustment.  It is readily apparent from testing performed by 
 
         these counselors and in the evidence of this case that claimant 
 
         cannot now be gainfully employed and any change in the situation 
 
         will require very aggressive efforts by both rehabilitation 
 
         specialists and claimant himself.  The success of such an effort 
 
         is by no means assured.
 
         
 
              Although claimant has a high school education, he exhibited 
 
         below average intelligence at the hearing and the low function 
 
         level was verified by vocational testing.
 
         
 
              Admittedly, the vocational counselors indicated that 
 
         claimant is potentially retrainable.  However, this agency has 
 
         held that predicting the success of vocational retraining is 
 
         speculation and is not a proper factor in measuring an injured 
 
         worker's current industrial disability.  Steward v. Crouse 
 
         Cartage Company, Appeal Decision filed February 20, 1987.  
 
         However, this agency is available upon proper application in the 
 
         future to review such matters should his disability change due to 
 
         successful vocational rehabilitation.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has shown a 60 percent loss in 
 
         earning capacity from the combined work injuries at Tama Pack.  
 
         Based upon such a finding, claimant is entitled as a matter of 
 
         law to 270 weeks of permanent partial disability benefits under 
 
         Iowa Code section 85.34(2)(u) which is 60 percent of 500 weeks 
 
         (less 30 weeks for prior disability), the maximum allowable 
 
         number of weeks for an injury to the body as a whole under that 
 
         code section.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness on the issue of the 
 
         extent of his disability.
 
         
 
              2.  On December 19, 1981, claimant suffered an injury to the 
 
         left extremity from a knife wound which severed nerve tissue.  
 
         This injury resulted in a 12 percent permanent partial impairment 
 
         to the upper extremity primarily due to a loss of sensation to his 
 
         hand and fingers.
 
         
 
              3.  On January 24, 1983, claimant suffered another injury to 
 
         the right extremity from a knife wound and the severance of nerve 
 
         tissue along with adjacent tendons.  This injury arose out of and 
 
         in the course of employment with Tama Pack.
 
                                                
 
                                                         
 
         
 
              4.  The work injury of January 24, 1983, was a cause of a 14 
 
         percent permanent partial impairment to the right upper extremity 
 
         due primarily to loss of strength.
 
         
 
              5.  The injuries of December 19, 1981 and January 24, 1983, 
 
         were a cause of significant permanent impairment and work 
 
         restrictions against repetitive heavy lifting; repetitive use of 
 
         hands in holding tools such as knives or hand operated power 
 
         tools; work in cold temperatures; and, any prolonged or 
 
         repetitive usage of either hand.  Claimant has suffered permanent 
 
         loss of feeling in his hands and a permanent loss of grip 
 
         strength and dexterity in the handling of small objects.
 
         
 
              6.  The combined effect of the December 1981 and January 
 
         1983 injuries and the resulting permanent partial impairment was 
 
         a cause of a 60 percent loss of earning capacity.  Due to work 
 
         restrictions, claimant is not physically able to return to meat 
 
         cutting employment.  Due to work restrictions, claimant is not 
 
         able to return to the types of manual labor employment that he 
 
         has held in the past which is the employment for which he is best 
 
         suited.  It was not shown that claimant made a reasonable but 
 
         unsuccessful effort to find suitable replacement employment 
 
         within the geographical area of his residence.  Claimant has held 
 
         jobs since his employment at Tama Pack, but these jobs were very 
 
         low paying.  Claimant is 35 years of age and has a high school 
 
         education.  Claimant performs below high school level 
 
         academically.  Claimant has an attitude problem which deters from 
 
         his ability to be retrained.  It was not shown that this attitude 
 
         problem is work related.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to the 
 
         permanent partial disability benefits awarded below.
 
         
 
                                   ORDER
 
         
 
              1.  Defendant, Second Injury Fund, shall pay to claimant two 
 
         hundred seventy (270) weeks of permanent partial disability 
 
         benefits at the rate of one hundred eighty-six and 40/100 dollars 
 
         ($186.40) per week beginning thirty-five (35) weeks after the 
 
         stipulated commencement date for permanent disability benefits, 
 
         May 31, 1984.
 
         
 
              2.  Defendant, Second Injury Fund, shall pay accrued weekly 
 
         benefits in a lump sum.
 
         
 
              3.  Defendant, Second Injury Fund, shall pay interest on 
 
         weekly benefits awarded herein as set forth in Iowa Code section 
 
         85.30.
 
         
 
              4.  Defendant, Second Injury Fund, shall pay the cost of 
 
         this action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
                                                
 
                                                         
 
         
 
              5.  Defendant, Second Injury Fund, 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 27th day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Ave. S.W.
 
         Suite 114
 
         Cedar Rapids, Iowa  52404
 
         
 
         Mr. W. C. Hoffmann
 
         Mr. Joseph S. Cortese, II
 
         Attorneys at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Greg Knoploh
 
         Assistant Attorney General
 
                                   
 
                                   
 
                                                
 
                                                         
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa  50319
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            3202; 4100
 
                                            Filed March 27, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY A. NORTHRUP,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 724196
 
         TAMA MEAT PACKING,
 
                                             A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         RANGER INSURANCE,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         THE SECOND INJURY FUND,
 
         
 
              Defendants.
 
         
 
         
 
         
 
         3202; 4100
 
         
 
              Second Injury Fund was held liable for a 60 percent 
 
         permanent partial disability as a result of the combined effects 
 
         of two separate injuries.  The odd-lot doctrine was not applied 
 
         in assessing this liability because claimant has held jobs since 
 
         the injury.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DIANE S. PORTER,
 
         
 
              Claimant,
 
                                                   File No. 724280
 
         vs.
 
         
 
         HAL OLMSTED, D.D.S., P.C.,             A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
                                                      F I L E D
 
         IOWA INSURANCE GUARANTY
 
         ASSOCIATION on behalf of the                JAN 24 1989
 
         insolvent IOWA NATIONAL MUTUAL
 
         INSURANCE COMPANY,                  IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                           STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Diane S. 
 
         Porter, claimant, against Hal Olmsted, D.D.S., P.C., employer, 
 
         and Iowa Insurance Guaranty Association on behalf of the 
 
         insolvent Iowa National Mutual Insurance Company, insurance 
 
         carrier, to recover benefits under the Iowa Workers' Compensation 
 
         Act as a result of.an alleged injury of December 9, 1982.  This 
 
         matter came on for hearing before the undersigned deputy 
 
         industrial commissioner August 9, 1988.  The record was 
 
         considered fully submitted at the close of the hearing.  The 
 
         record in this case consists of the testimony of claimant, James 
 
         Porter, her husband, Dr. Hal Olmsted, Esther Benesh, and James 
 
         Benesh; and defendants' exhibits A, B and C.  Claimant's 
 
         objection to defendants' exhibit D is sustained for those reasons 
 
         asserted by claimant and it has not been considered in making 
 
         this decision.  Claimant's objection to the testimony of Esther 
 
         Benesh is overruled as this witness was listed in a timely manner 
 
         on defendants' witness list and the undersigned finds no reason 
 
         for defendants to have disclosed the name of this witness prior 
 
         to the filing of the witness list. Claimant's assertion that this 
 
         witness came as a surprise to her at the time the witness list 
 
         was filed thereby depriving her of the opportunity to depose the 
 
         witness is without merit in light of the fact that it was clear 
 
         to all parties significantly prior to the exchange of the witness 
 
         list that Esther Benesh was present in Dr. Olmsted's office on 
 
         the day in question.  Clearly, claimant could have, on her own 
 
         initiative, deposed Mrs. Benesh.
 
         
 
                                    ISSUES
 
         
 
                                                
 
                                                         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved August 9, 1988, the following issues are presented for 
 
         resolution:
 
         
 
              1.  Whether claimant sustained an injury arising out of and 
 
         in the course of her employment on December 9, 1982;
 
         
 
              2.  Whether claimant's alleged injury is the cause of the 
 
         disability on which she now bases her claim;
 
         
 
              3.  Claimant's entitlement to weekly disability benefits 
 
         including temporary total disability/healing period and permanent 
 
         partial disability benefits;
 
         
 
              4.  The nature and extent of claimant's permanent partial 
 
         disability, if any; and,
 
         
 
              5.  Claimant's entitlement to certain medical benefits under 
 
         Iowa Code section 85.27.
 
         
 
              Claimant also lists as a dispute Iowa Code section 85.39. 
 
         This issue, however, was not listed as an issue on the hearing 
 
         assignment order and, accordingly, the undersigned is without 
 
         jurisdiction to consider it.  See Joseph Presswood v. Iowa Beef 
 
         Processors, (Appeal Decision filed November 14, 1986) holding an 
 
         issue not noted on the hearing assignment order is an issue that 
 
         is waived.
 
         
 
                              FACTS PRESENTED
 
         
 
              Claimant testified she began working for defendant employer, 
 
         Dr. Olmsted, in October of 1981 as his assistant in a "one girl" 
 
         office and that, in addition to her chair side responsibility as 
 
         a dental assistant, she also did bookkeeping, insurance work, 
 
         invoices and telephone work.  Claimant stated that on December 9, 
 
         1982, patient Jodie Benesh was to have a stainless steel crown 
 
         placed on an upper interior tooth and that this appointment 
 
         developed into a "fiasco."  Claimant recalled sitting on the left 
 
         side of the chair with Dr. Olmsted sitting on the right, that Dr. 
 
         Olmsted wanted Jodie in and out as quickly as possible, that he 
 
         did not use novacaine and that while using the drill, Dr. Olmsted 
 
         went into Jodie's gum causing Jodie to try to get out of the 
 
         chair, cry, scream and kick.  Claimant described Dr. Olmsted 
 
         thrusting Jodie back into the chair by her throat with his hand 
 
         over her mouth and nose because he did not want Mrs. Benesh, who 
 
         was in the waiting room, to hear what was going on and that in 
 
         response to Dr. Olmsted's action, Jodie rebelled, arched her back 
 
         and "came out of the chair."  Claimant recalled Dr. Olmsted told 
 
         her to hold on to Jodie's arms and legs, and that Jodie rolled 
 
         over and kicked claimant in the stomach and arm.  Claimant stated 
 
         that at that point she went down on her knees, that her tendons 
 
         had snapped and that Dr. Olmsted then put on the crown and "hoped 
 
         it dried."  Claimant testified that Jodie had swallowed the first 
 
         crown Dr. Olmsted attempted to put on and that Dr. Olmsted 
 
         instructed her not to tell Jodie's parents about it.  Claimant 
 
                                                
 
                                                         
 
         stated that once Dr. Olmsted was finished, Jodie had a mark on 
 
         her neck but that she cleaned Jodie's blood-stained dress and 
 
         took her out to her mother.
 
         
 
              Claimant recalled she then told Dr. Olmsted something was 
 
         "very wrong" with her fingers as she felt pain and she could not 
 
         bring the "fingers back up" and that Dr. Olmsted told her she 
 
         could not seek medical attention.  Claimant testified that on her 
 
         own she contacted Leland G. Hawkins, M.D., the following day and 
 
         saw him three or four days later at which time he told her her 
 
         tendons had been severely damaged and referred her to William W. 
 
         Eversmann, Jr., M.D., whom she could not see until July 1, 1983. 
 
         Claimant testified that she underwent surgery in July 1983 at 
 
         which time her thumb was fused, that the surgery did not work, 
 
         that eventually Dr. Eversmann "put in a plate" which claimant now 
 
         wants removed and that she underwent physical therapy which also 
 
         was not successful.  Claimant explained that after surgery she 
 
         could not go back to four handed dentistry as she could cause 
 
         injury if she dropped something.  Claimant stated she cannot lift 
 
         heavy items, cannot water ski, cannot play volleyball and cannot 
 
         perform certain household duties such as vacuuming as a result of 
 
         her injury.
 
         
 
              On cross-examination, claimant testified she was holding 
 
         Jodie by both arms over the chair from the left side, that she 
 
         continued to hang onto Jodie's arms even after she was kicked in 
 
         the stomach, and that she did not recall how she was kicked or 
 
         with what foot.  Claimant stated she was down on the floor for 
 
         five minutes, that she was kicked after Dr. Olmsted put on the 
 
         crown and that while she was still on the floor, Dr. Olmsted left 
 
         the room.  Claimant also stated she was kicked after the crown 
 
         preparation was done but before the crown was put in Jodie's 
 
         mouth.  Claimant stated that, in accordance with Dr. Olmsted's 
 
         instructions, she did not tell Mrs. Benesh that Jodie had 
 
         swallowed a crown.  Claimant could not recall if Dr. Olmsted saw 
 
         any other patients that day but maintained that if he did, she 
 
         would have assisted him as usual.  Claimant could not recall if 
 
         she worked at all between December 9 and when she first saw Dr. 
 
         Hawkins.  Claimant testified that when she returned to work after 
 
         seeing Dr. Hawkins, she was wearing a splint to which Dr. Olmsted 
 
         objected and that he became "irate" when she insisted on wearing 
 
         it.  Claimant explained that with the splint she was able to 
 
         continue working as a dental assistant although she had to do 
 
         some things with her left hand and did not pass instruments or 
 
         syringes for fear of dropping them.
 
         
 
              James Porter testified that claimant is no longer capable of 
 
         doing things around the house such as carrying hot foods or 
 
         clothes baskets and that claimant drops dishes when her "hand 
 
         releases."  Mr. Porter acknowledged that although claimant had 
 
         the condition known as Erb's palsy from which claimant had some 
 
         limitations even before the December 1982 incident surgery had 
 
         helped to repair that condition and did not interfere with 
 
         claimant's abilities to function normally.
 
         
 
                                                
 
                                                         
 
              Hal Olmsted, D.D.S., testified his dental practice has been 
 
         limited to pediatrics by choice since 1954 and that claimant was 
 
         employed for approximately eighteen or nineteen months as a 
 
         receptionist and chair side assistant including making chart 
 
         notations without his instruction.  Dr. Olmsted stated he first 
 
         saw Jodie Benesh in November 1982 and opined she behaved well for 
 
         an eighteen month old.  Dr. Olmsted testified that on December 9, 
 
         1982, he noticed no appreciable difference in Jodie's behavior 
 
         from earlier appointments although Jodie was squirming and 
 
         "thrashing around."  Dr. Olmsted could not recall Jodie kicking 
 
         stating that "she cannot kick much" as she is "just a little 
 
         girl."  Dr. Olmsted explained that he noted on Jodie's chart on 
 
         December 9, 1982 that she had swallowed a crown.
 
         
 
              Dr. Olmsted could not recall anything happening to claimant 
 
         on December 9, 1982, testifying that he did not observe claimant 
 
         getting kicked in the stomach or the arm, that claimant usually 
 
         mixed the cement needed for the procedure, and he could not think 
 
         of any reason why she would not have on December 9, although he 
 
         could not specifically recall, and that he had no recollection of 
 
         claimant going down on her knees during the course of the 
 
         procedure.  Dr. Olmsted testified claimant continued to work with 
 
         him the remainder of the day and the next day and that claimant 
 
         did not comment she had been injured.  Dr. Olmsted explained he 
 
         did not notice anything different about the manner in which 
 
 
 
 
 
                              
 
                                                         
 
         claimant performed her job and that it was not until the 
 
         following week, when claimant asked him if he had workers' 
 
         compensation insurance, that he was aware she was alleging any 
 
         injury.
 
         
 
              Dr. Olmsted testified that when claimant returned to the 
 
         office with a splint, he did not tell her not to wear it and that 
 
         claimant said the splint bothered her work.  Dr. Olmsted 
 
         estimated claimant wore this splint for a week to ten days and 
 
         then never saw her wear it again over the next five months.  On 
 
         cross-examination, Dr. Olmsted testified it was "highly unlikely" 
 
         Jodie could have kicked claimant without him noticing and "not 
 
         possible" that claimant fell to her knees and he did not notice.
 
         
 
              Esther Benesh, Jodie's mother, testified that after Jodie's 
 
         appointment on December 9, 1982, "nobody ever told" her "it was 
 
         anything unusual," that there was nothing unusual about Jodie's 
 
         clothing, and that there was no dampness on the clothes.  Mrs. 
 
         Benesh stated there was no mark on Jodie's neck, that she would 
 
         have seen one had there been one, and that she was told Jodie 
 
         swallowed a crown although she could not recall who might have 
 
         told her.  Mrs. Benesh explained she would have paid claimant for 
 
         the costs of the procedure that day and that she did not notice 
 
         anything was wrong with claimant.  Mrs. Benesh recalled looking 
 
         at the work done in Jodie's mouth and that there was nothing 
 
         unusual noticed.  She stated there was no blood, that Jodie has 
 
         had no complication with the crown and that she was never given 
 
         any indication of any problems with Jodie or the appointment.
 
         
 
              James Benesh testified.
 
         
 
              William Wilbert Eversmann, Jr., M.D., orthopedic surgeon 
 
         specializing in hand surgery since 1974, testified claimant was a 
 
         patient of his office, the Iowa Musculoskeletal Center, since 
 
         approximately 1950 for Erb's palsy which he defined as:
 
         
 
                   Erb's palsy is an injury to the brachial plexus, which 
 
              is a group of nerves that comes out of the neck and supply 
 
              the necessary nerve supply to the upper extremity.  In the 
 
              case that we are discussing here, of course, it's the right 
 
              upper extremity.  With an injury at birth, usually a 
 
              stretching type injury or an injury provoked by some 
 
              abnormal position during delivery or during the birthing 
 
              process, the nerves become stretched in some way as either 
 
              the uterus clamps down on the shoulder after the head has 
 
              been delivered from the uterus or, in fact, there's some 
 
              abnormal position farther down the birth canal.
 
         
 
         (Defendants' Exhibit B, pp. 3-4)
 
         
 
              Dr. Eversmann explained that the usual effect of Erb's palsy 
 
         is some limitation in the nerve supply to the muscles of the 
 
         upper extremity, either the shoulder, elbow, wrist or hand.  Dr. 
 
         Eversmann was provided with a history from Dr. Hawkins which 
 
         stated:
 
                                                
 
                                                         
 
         
 
              [W]hile holding a patient, a young child,....the child was 
 
              moving a lot,....and Diane in some way injured her right 
 
              upper extremity where Dr. Robb had carried out several 
 
              operations years before, the operations having been carried 
 
              out for the effects of the Erb's palsy.  At the time she was 
 
              seen on the 13th of December, the patient had pain about 
 
              five inches above the wrist joint on the dorsal surface of 
 
              the extensor tendons.  She could still bring the extensors 
 
              of the fingers up to a neutral position.  There was no 
 
              ecchymosis, that is, there was no bruising apparent.  And 
 
              she could make.a full fist without difficulty.  Dr. Hawkins 
 
              had a splint made which would support the three fingers 
 
              toward the ulnar side of the hand and support those fingers 
 
              in extension at the metacarpophalangeal joints, which are 
 
              the knuckles of the fingers, and agreed to see her back -- 
 
              or asked to see her back in three weeks.
 
         
 
         (Def. Ex. B, p. 6)
 
         
 
              At the time of his first examination of claimant, Dr. 
 
         Eversmann stated he found claimant had:
 
         
 
              ...a solid arthrodesis of the wrist, had deficiencies of 
 
              muscles around the shoulder, which I'm sure had been present 
 
              since her Erb's palsy at birth, significantly on the hand. 
 
              She had loss of function of the extensor pollicis brevis 
 
              tendon, although the extensor longus and adductor longus 
 
              were normally functional.  She had excellent extension of 
 
              the index finger, but deficient extension of the middle, 
 
              ring and little fingers on the right hand.  She had normal 
 
              passive motion, that is, I could move the joints through a 
 
              normal motion but she could not actively bring the fingers 
 
              up to an extended position.
 
         
 
         (Def. Ex. B, p. 7-8)
 
         
 
              Dr. Eversmann recommended:
 
         
 
              A.  ...that we undertake a tendon transfer using the ring 
 
              finger -- a ring finger tendon, passing it through the 
 
              middle portion of the forearm and using that tendon to 
 
              extend the middle, ring and little fingers.  At the same 
 
              time, in order to allow her to better extend her thumb, we 
 
              would fuse one joint in her thumb, allowing her to have the 
 
              usual and normal motion at the last joint of her thumb, the 
 
              interphalangeal joint, and at the base of her thumb as she 
 
              already had.  This would alleviate the flexion contracture 
 
              she had at the metacarpophalangeal joint of the thumb and 
 
              stabilize it in an acceptable position.
 
         
 
              Q.  And that surgery was carried out on July 14?
 
         
 
              A.  Yes, on the 14th of July, 1983.
 
         
 
                                                
 
                                                         
 
         (Def. Ex. B, pp. 8-9)
 
         
 
              Dr. Eversmann testified:
 
         
 
              Q.  Doctor, let me ask you, as best you can:  Was that 
 
              surgery necessitated by the injury that your patient 
 
              described to you as occurring on December 9, 1982?
 
         
 
              A.  Having not seen her on December 9th, 1982, I'm not sure 
 
              I can tell you with some certainty.  But certainly it would 
 
              appear from everything I've ever known about Mrs. Porter 
 
              that that injury of December 9th, in fact, tore the tendons 
 
              to the fingers and possibly to the thumb, which caused us to 
 
              have to go ahead with the surgery that we did in July.
 
         
 
         (Def. Ex. B, p. 9)
 
         
 
              Dr. Eversmann then opined:
 
         
 
              Q.  ...Do you have an opinion, Doctor, based upon a 
 
              reasonable degree of medical certainty, of whether the 
 
              accident of December 9, 1982, resulted in any problems with 
 
              the right upper extremity and, in particular then, I'm 
 
              thinking about the pain to the forearm?
 
         
 
              A.  Well, the -- I believe that the rupture of the tendon 
 
              was in the forearm, if that's what you're asking.  The 
 
              rupture of the tendon was probably in the forearm.  But as I 
 
              say, I didn't expose or explore the ruptured tendon, so I'm 
 
              not sure exactly where it was.  But I would certainly expect 
 
              it to be in the musculotendinous site of the forearm as the 
 
              site of rupture, which is not contrary to what Dr. Hawkins 
 
              had described.  But he is the only one that saw her at the 
 
              time and attended to her injury.
 
         
 
              Q.  Is that testimony then based upon a reasonable degree of 
 
              medical certainty?
 
         
 
              A.  It's consistent -- That concept is perfectly consistent 
 
              with Dr. Hawkins' note, but I have no way of corroborating 
 
              it.  It would be nothing more -- Since I saw her months 
 
              after her injury, it would be nothing more than a guess on 
 
              my,part and I didn't expose or explore that area to 
 
              corroborate it. I'm not sure it requires a degree of medical 
 
              certainty.  It's just -- It's a guess.  I don't know.
 
         
 
         (Def. Ex. B, pp. 20-21)
 
         
 
              On November 27, 1984, Dr. Eversmann estimated claimant's 
 
         degree of permanent physical impairment as:
 
         
 
                   In an attempt to separate the patient's long standing 
 
              medical problems from those generated by the injury of 
 
              December of 1982, there is little doubt that any physical 
 
              impairment arising at this time cannot be referred to any 
 
                                                
 
                                                         
 
                   problem with the shoulder, elbow or wrist which have 
 
              undergone a considerable amount of treatment in the past and 
 
              which at this time cannot be ascribed to an injury in 
 
              December of 1982.  So also is any impairment from loss of 
 
              sensibility in the hand.  On the other hand, two areas come 
 
              to mind referable to the injury of December of 1982.  The 
 
              first of these is the metacarpal phalangeal joint of the 
 
              thumb, which has been determined at this time to result in a 
 
              degree of physical impairment of 43 per cent of the thumb or 
 
              17 per cent of the hand or 15 per cent of the upper 
 
              extremity.  The loss of powerful extension of the m.p. 
 
              joints of the fingers could be interpreted as a second 
 
              impairment as the result of the injury of December of 1982.  
 
              Since this is a loss of quality rather than a loss of total 
 
              function, that is at this time the patient can extend the 
 
              m.p. joints with some difficulty, I feel that an arbitrary 
 
              value of 20 per cent of loss of use of the hand from the 
 
              loss of powerful extension of the m.p. joints which 
 
              tabulates to a loss of 18 per cent of the upper extremity is 
 
              justifiable.  Combining the loss of 15 per cent of the upper 
 
              extremity for loss of use of the thumb and 18 per cent of 
 
              the upper extremity from loss of use of the fingers, results 
 
              in a combined value of 30 percent of the upper extremity 
 
              attributable to the injury of December of 1982.
 
         
 
         (Def. Ex. A, pp. 4-5)
 
         
 
              John R. Walker, M.D., who saw claimant for the purpose of 
 
         evaluation, opined on April 3, 1987:
 
         
 
                   It is obvious that this patient was able to carry on 
 
              her work as a chair side, four handed dental assistant.  It 
 
              is quite obvious now that she can't.  Therefore, at this 
 
     
 
                              
 
                                                         
 
              particular point, as far as her livelihood and her 
 
              industrial disability is concerned, it would appear to be 
 
              100%.  It is obvious that she could do one-handed jobs but 
 
              she couldn't do much with the right hand.  Her permanent, 
 
              partial impairment as far as the middle, ring and little 
 
              finger on the 3rd, 4th and 5th digits are concerned, this 
 
              amounts to 35% of the right hand.  In addition, it would 
 
              appear that she has suffered some permanent partial 
 
              impairment of the right thumb, amounting to 25% of this 
 
              member and an impairment of the index finger amounting to 
 
              20% of the index finger.  This obviously adds up to 80% of 
 
              the right hand.  This then transposes in to 72% of the 
 
              entire right, upper extremity or 43% of the whole man.
 
         
 
                   It is obvious that some of this pre-existed because of 
 
              the Erb's palsy and the previous surgery performed by Dr. 
 
              John Robb, however, it should be stated definitely that she 
 
              was able to carry on with almost all of her functions and 
 
              particularly she was able to function and be employed as a 
 
              four-handed dental chair side assistant.  This, I believe is 
 
              the bottom line with this particular young ladies [sic] 
 
              problem.  Again I might state that as.far as treatment is 
 
              concerned I have nothing to offer and only the most skilled 
 
              hand surgeon would be able to help and there is a good deal 
 
              of doubt in my mind as to what could be done.
 
         
 
         (Def. Ex. A, p. 2)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that her injury arose out of and in the course of her employment. 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove her injury occurred at a place where she reasonably may be 
 
         performing her duties.  McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              Of primary concern is whether or not claimant sustained an 
 
         injury which arose out of and in the course of her employment on 
 
         December 9, 1982, for if one is to believe such an injury 
 
         occurred under the conditions described by claimant, then the 
 
         undersigned would be compelled to conclude that claimant has 
 
         established by the medical evidence a causal connection between 
 
         that injury and the disability on which she now bases her claim 
 
                                                
 
                                                         
 
         and an entitlement to weekly disability and medical benefits.
 
         
 
              Claimant initially argues that defendants' position which 
 
         denies claimant sustained an injury arising out of and in the 
 
         course of her employment "defies all reasons" particularly in 
 
         light of the fact defendants have paid claimant $12,732.16 in 
 
         weekly compensation along with claimant's medical bills.  
 
         However, claimant should not need reminding that the payment of 
 
         benefits, in and of itself, is not an admission of liability.  
 
         The Iowa workers' compensation statute was amended sometime ago 
 
         specifically to allow for the payment of benefits to be made 
 
         without an admission of liability.  Clearly, this acts in 
 
         claimant's favor and claimant should not use this provision to 
 
         the detriment of defendants by asserting that the payment of 
 
         benefits creates some type of presumption of liability.  In 
 
         addition, defendants' amended and substituted answer filed 
 
         February 17, 1987 specifically denied claimant sustained a 
 
         personal injury arising out of and in the course of her 
 
         employment.  Therefore, claimant cannot argue with any 
 
         credibility that the first time this issue was raised was at the 
 
         prehearing conference.
 
         
 
              One need not look too deep into the evidence of this case to 
 
         conclude that significant conflicts in testimony exist. 
 
         Discrepancies rage between claimant's testimony given at hearing 
 
         and during her two depositions, between claimant's testimony and 
 
         Dr. Olmsted's testimony, and between claimant's testimony and that 
 
         of Mrs. Benesh.  I. F. Stone wrote in The Trial of Socrates that 
 
         all knowledge may be reduced to comparison and contrast.  
 
         Comparing and.contrasting the testimony in this case simply does 
 
         not allow the undersigned to conclude that claimant's testimony is 
 
         credible or that her recitation of what occurred in Dr. Olmsted's 
 
         office on December 9, 1982 is believable.
 
         
 
              Claimant testified that she was kicked after the crown was 
 
         put on, kicked after the preparation was complete but before the 
 
         crown was put on and before the cement was mixed to put the crown 
 
         in place, meaning that Dr. Olmsted was holding Jodie down while 
 
         mixing the cement himself.  The undersigned cannot find it 
 
         believable that a child that was in a state such as that 
 
         described by claimant would simply sit still while claimant was 
 
         lying on the floor without the ability to hold her and while Dr. 
 
         Olmsted freed his hands to mix the cement.  Clearly, a child who 
 
         was trying to get out of the chair so violently just seconds 
 
         before would not sit still and wait for more.  Claimant testified 
 
         that she was down on the floor from the time she was kicked until 
 
         after Dr. Olmsted left the room, that she got up when Dr. Olmsted 
 
         had ordered her to, and that when she stood up, she did not know 
 
         if Dr. Olmsted was in the room or out of the room.  If, in fact, 
 
         claimant stood up on Dr. Olmsted's order, one wonders how she 
 
         could have heard the order if he was out of the room and why 
 
         claimant would say he ordered her to get up if she did not know 
 
         whether he was in the room or not.
 
         
 
              The undersigned does not doubt that Jodie Benesh did not 
 
                                                
 
                                                         
 
         want to be in Dr. Olmsted's chair on December 9, 1982.  Claimant 
 
         would assert the appointment was just about as traumatic for her 
 
         as it was for Jodie.  Therefore, it is curious to note the number 
 
         of things claimant neither remembers nor recalls about that day 
 
         or on which she had "no comment."  For example, claimant could 
 
         not recall or did not know if Jodie was still distraught when she 
 
         left the office that day and could not recall if she assisted Dr. 
 
         Olmsted with any other patients that day or for the days before 
 
         she went to see her own doctor.  One must wonder just how 
 
         "excruciating" claimant's pain was if she could not recall using 
 
         or not using her hand during the rest of the day on December 9 (a 
 
         Thursday) or the days after until she saw her physician.  
 
         Clearly, if Jodie was as distraught as claimant described, some 
 
         evidence of that condition would remain and would be capable of 
 
         being seen once Jodie got out of Dr. Olmsted's chair.  Claimant's 
 
         habit of responding to questions she elects not to answer with a 
 
         "no comment," which is replete within the deposition testimony, 
 
         further does not instill confidence in her story.  One glaring 
 
         example of this is found in the following exchange:
 
         
 
              Q.  Did you attempt to get her to open her mouth?
 
         
 
              A.  No, I did not.
 
         
 
              Q.  Why is that?
 
         
 
              A.  I'd already been kicked.  I was injured and I was in 
 
              pain.
 
         
 
              Q.  So that pain kept you from trying to get Jodie to open 
 
              her mouth to put the crown in?
 
         
 
              A.  That's the dentist's job.
 
         
 
              Q.  You're coming at it from a couple different ways.  I 
 
              understood you to say you did not try to get her to open her 
 
              mouth up because you were in pain.  Is that the reason
 
         
 
              A.  That's not what I said.
 
         
 
              Q.  What did you say about the pain?
 
         
 
              A.  I said it's not my job for her to open her mouth.  
 
              That's the dentist's job.
 
         
 
              Q.  Before that you said something about pain.
 
         
 
              A.  I was in pain.
 
         
 
              Q.  In the context that it kept you from getting Jodie to 
 
              open her mouth.
 
         
 
              A.  No.  I was in pain, but that doesn't -- isn't the reason 
 
              she didn't open her mouth.
 
         
 
                                                
 
                                                         
 
              Q.  You're saying you didn't say anything about that, about 
 
              the fact that you didn't try to get Jodie to open her mouth 
 
              up because you were in pain?  You didn't say that?  Do you 
 
              recall the question?
 
         
 
              A.  No comment.
 
         
 
         (Def. Ex. C, pp. 35-36)
 
         
 
              Claimant insisted that it was Dr. Olmsted's instruction that 
 
         Jodie's parents not be told Jodie swallowed a crown.  However, 
 
         the record is unrefuted that it is Dr. Olmsted's writing on 
 
         Jodie's medical chart that recorded the fact Jodie swallowed a 
 
         crown. Claimant maintained she did not tell Mrs. Benesh and was 
 
         definite in her testimony that Dr. Olmsted did not speak with 
 
         Mrs. Benesh following the conclusion of the procedure.  Yet, Mrs. 
 
         Benesh was just as definite that she had been advised Jodie 
 
         swallowed a crown.  One would wonder why Dr. Olmsted would not 
 
         want Mrs. Benesh to be made aware of the fact that Jodie 
 
         swallowed a crown when he himself noted that fact on the chart.
 
         
 
              The undersigned simply cannot cite to each and every 
 
         instance in the record which has led her to conclude claimant's 
 
         testimony is not credible.  For to do would result in a decision 
 
         as voluminous as the record in this case.
 
         
 
              Claimant clearly has a pecuniary interest in the outcome of 
 
         this case as does Dr. Olmsted whose interest, since he is now 
 
         retired, may be less than that of claimant but still evident.  
 
         The witness in this case who does not appear to the undersigned 
 
         to have any interest at all in the outcome of the claim was 
 
         Esther Benesh who appeared to the undersigned to testify honestly 
 
         and forthrightly.
 
 
 
                              
 
                                                         
 
         
 
              As Jodie's mother, it is reasonable to conclude she would 
 
         have noticed dampness on her daughter's clothing, would have 
 
         noticed if Jodie was particularly distraught or upset and would 
 
         have noticed a mark on Jodie's neck.  Yet, Mrs. Benesh noticed no 
 
         dampness on Jodie's clothing although claimant maintains she 
 
         washed off blood with a wet towel and Mrs. Benesh carried Jodie 
 
         out.  Mrs. Benesh looked over the work Dr. Olmsted did and 
 
         noticed nothing unusual.  Mrs. Benesh testified that Jodie has 
 
         had no complications with the crown and still has it in place 
 
         after five years.  It is difficult to believe that the crown 
 
         could have been "slopped on" as claimant described and that it 
 
         would have remained in place without complications for so many 
 
         years.  It is also reasonable to conclude she would have noticed 
 
         claimant's appearance after the appointment.  Mrs. Benesh 
 
         testified she paid claimant for the cost of the appointment 
 
         following the conclusion of the procedure and testified she did 
 
         not notice anything unusual about claimant.  Yet, if claimant had 
 
         been in such pain and had been crying herself, as she described, 
 
         it is highly unlikely that such conditions could have gone 
 
         unnoticed.
 
         
 
              Considering then all the above, it is concluded that 
 
         claimant failed to meet her burden of establishing she sustained 
 
         an injury which arose out of and in the course of her employment 
 
         on December 9, 1982 and claimant shall take nothing as a result 
 
         of this proceeding.  The undersigned would add only that if 
 
         claimant had met this burden, it would have been concluded that 
 
         the benefits already paid to her adequately compensated her for 
 
         the effect of her injury.
 
         
 
                                FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant was not a credible witness.
 
         
 
              2.  Esther Benesh was a credible witness.
 
         
 
              3.  Claimant's testimony is in contrast with the testimony 
 
         of Esther Benesh who, in addition, has no pecuniary interest in 
 
         the outcome of the case.
 
         
 
              4.  Claimant's recitation of the circumstance of how her 
 
         injury allegedly occurred is wrought with inconsistency.
 
         
 
              5.  Claimant has failed to establish by credible evidence 
 
         she sustained an injury arising out of and in the course of her 
 
         employment on December 9, 1982.
 
         
 
                               CONCLUSION OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
                                                
 
                                                         
 
         
 
              Claimant has failed to establish she sustained an injury on 
 
         December 9, 1982 which arose out of and in the course of her 
 
         employment with Hal Olmsted, D.D.S., P.C.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant shall take nothing further from this proceeding.
 
         
 
              Costs of this action are assessed against claimant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 24th day of January, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Thomas J. Currie
 
         Mr. Tom Riley
 
         Attorneys at Law
 
         3401 Williams Blvd. SW
 
         P.O. Box 998
 
         Cedar Rapids, IA  52406
 
         
 
         Mr. Aldean E. Kainz
 
         Mr. David A. Elderkin
 
         Attorneys at Law
 
         700 Higley Bldg
 
         P.O. Box 1968
 
         Cedar Rapids, IA  52406
 
         
 
         Mr. E.J. Giovannetti
 
         Attorney at Law
 
         Terrace Center, Ste 111
 
         2700 Grand Ave.
 
         Des Moines, IA  50312
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1100
 
                                            Filed January 24, 1989
 
                                            Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DIANE S. PORTER,
 
         
 
              Claimant,
 
                                                   File No. 724280
 
         vs.
 
         
 
         HAL OLMSTED, D.D.S., P.C.,             A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         IOWA INSURANCE GUARANTY
 
         ASSOCIATION on behalf of the
 
         insolvent IOWA NATIONAL MUTUAL
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1100
 
         
 
              Claimant failed to meet her burden of proof that she 
 
         sustained an injury arising out of and in the course of her 
 
         employment.  Claimant was not a credible witness; her testimony 
 
         was in contrast with the testimony of another witness who had no 
 
         pecuniary interest in the outcome of the case; and claimant's 
 
         recitation of the circumstances of how her injury allegedly 
 
         occurred was wrought with inconsistency.