1100; 1108.50; 2503; 2700
 
                           Filed March 13, 1991
 
                           HELENJEAN WALLESER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LLOYD L. HANSON and VALORA    :
 
            J. HANSON, Administrators of  :
 
            DENNIS L. HANSON, Deceased,   :
 
                                          :
 
                 Claimants,               :         File No. 742863
 
                                          :
 
            vs.                           :           R E M A N D
 
                                          :
 
            SHERMAN REICHELT,             :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                                          :
 
            and                           :
 
                                          :
 
            FARM BUREAU MUTUAL            :
 
            INSURANCE COMPANY,            :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            1100; 1108.50
 
            Under actual risk doctrine, injury arising out of and in the 
 
            course of employment found where laborer sustained 
 
            heatstroke while making hay in high, humid ambient 
 
            temperature.  Held laborer did not have to show continuous 
 
            exertion to prevail where nature of employment exposed him 
 
            to risk of heatstroke and prevented his seeking shelter from 
 
            the heat.
 
            
 
            2700; 2503
 
            Maintenance on respirator of individual for 21 days who had 
 
            suffered significant brain anoxia after cardiorespiratory 
 
            arrest held to be reasonable medical care where testimony 
 
            showed prognosis after brain anoxia cannot be established 
 
            for at least 4 to 7 days and where doctor testified it was 
 
            appropriate to permit family a reasonable time to adjust to 
 
            individual's actual prognosis before ceasing extraordinary 
 
            care.  Reasonableness of care assessed by reviewing 
 
            circumstances surrounding giving of care, not by reviewing 
 
            the actual results of care.  Although not directly 
 
            applicable, Cruzan v. Director, Mo. Dep't of Health, 110 S. 
 
            Ct. 2841 (1990) discussed in analysis.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         JOSEPH PINTER,
 
         
 
              Claimant,
 
                                               FILE NOS. 796964 & 743088
 
         VS.
 
                                                  C O N C L U D I N G
 
         FRED CARLSON CO., INC.,
 
                                                 A R B I T R A T I O N
 
              Employer,
 
         
 
         and
 
         
 
         BITUMINOUS CASUALTY,
 
         
 
              Insurance Carrier,
 
         
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
                                INTRODUCTION
 
         
 
              This concludes the interim arbitration decision filed 
 
         December 11, 1986 wherein the claimant was directed to elect 
 
         whether or not he would undergo surgery for the hemorrhoid 
 
         condition with which he is afflicted.  Claimant's election to 
 
         decline the offered surgery was received at this office on 
 
         January 12, 1987.  The only remaining issue to be determined is 
 
         assessment of claimant's entitlement to compensation for 
 
         permanent partial disability.  Matters stated in the interim 
 
         decision are considered in this decision even though they are not 
 
         repeated herein.
 
         
 
                                  ANALYSIS
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 
 
         258 N.W. 899, 902 (1935) as follows: "It is therefore plain that 
 
         the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963) .
 
              The method of awarding damages that was approved in 
 
         Stufflebean v. City of Fort Dodge, 233 Iowa 438, 9 N.W.2d 281 
 
         (1943) is appropriate in t is case.  When considering the award 
 
         to be made in a case where surgery presents a high probability of 
 

 
         a substantial reduction in physical impairment and, 
 
         correspondingly, of increasing earning capacity, it is 
 
         appropriate to consider a number of factors that are not normally 
 
         considered in assessing industrial disability.  These include a 
 
         projection of the degree of disability that would result if the 
 
         surgery were performed and provided the results that are 
 
         medically indicated as shown by the record; the degree of 
 
         disability that currently exists in the absence of surgery and 
 
         the expense that the employer and insurance carrier would incur 
 
         if the surgery were to be performed.  The expense should include 
 
         both the direct expenses of treatment and the healing period 
 
         compensation during the time of recovery from the surgery.  The 
 
         employer should not be held responsible for payment of the 
 
         uncorrected disability and then subsequently be required to 
 
         provide surgery.  The employer should likewise not profit 
 
         economically from the employee's decision to decline the offered 
 
         surgery.  The award of disability should therefore be an amount 
 
         approximately equal to the expense that the employer and 
 
         insurance carrier would incur if the surgery were performed with 
 
         results being as anticipated by the medical evidence in the 
 
         record and the amount of residual disability, if any.  In no 
 
         event should the award exceed the extent of disability that 
 
         actually exists without submitting to surgery.
 
         
 
              Claimant has many demonstrated abilities.  He seems to have 
 
         adapted his employment activities to a form of work for which he 
 
         is trained and that it is appropriate for his disability.  
 
         Nevertheless, his earnings have suffered.
 
         
 
              If claimant were to have the surgery and the surgery were to 
 
         be successful, the employer would expend approximately $3,600 in 
 
         treatment expenses and would also be responsible for paying 
 
         claimant healing period compensation during the time he was 
 
         disabled from the surgery.  It appears that the healing period 
 
         would consist of approximately one week in the hospital and 
 
         approximately four weeks of restriction from lifting or straining 
 
         (Exhibit 2, page 16).  Five weeks of compensation at claimant's 
 
         rate of $348.61 computes to $1,743.05. When added to the 
 
         anticipated medical expenses at $3,600 the total is $5,343.05. 
 
         This is roughly equivalent to 15 weeks of compensation for 
 
         permanent partial disability which, in turn, is equivalent to a 
 
         three percent permanent partial disability.  The surgery has a 
 
         high probability of success.  If successful, there would be 
 
         little, if any, permanent impairment.  When all the factors of 
 
         industrial disability are considered, together with claimant's 
 
         decision to decline surgery and the probable result of such 
 
         surgery if it had been elected, it is found and concluded that 
 
         claimant is entitled to compensation for five percent permanent 
 
         partial disability.
 
         
 
              The compensation is payable at the end of the first healing 
 
         period, namely September 5, 1983.  Teel v. McCord, 394 N.W.2d 405 
 
         (Iowa 1986).  While it is true that the degree of disability 
 
         could not be determined until claimant made his election 
 
         concerning surgery, it is likewise true that it should have been 
 
         obvious that he had some permanent disability as evidenced by the 
 
         medical restrictions that had been placed upon him.  It is 
 
         likewise true that the employer and insurance carrier have had 
 
         the benefit of the use of the funds during the time that has 
 
         transpired since September 5, 1983.  Nothing prevents a defendant 
 
         from assessing the degree of permanent partial disability that 
 
         results from an injury and voluntarily paying whatever amount 
 
         appears reasonable in a timely fashion.
 
         
 

 
         
 
         
 
         
 
         PINTER V. FRED CARLSON CO., INC.
 
         Page   3
 
         
 
         
 
              Since claimant has elected to decline surgery and the 
 
         employer is being ordered to pay compensation under those 
 
         circumstances, the employee is barred from seeking additional 
 
         compensation for section 85.27 benefits from the employer and 
 
         insurance carrier in the event that he should subsequently choose 
 
         to undergo surgical treatment.
 
         
 
         FINDINGS OF FACT
 
         
 
              Claimant's disability, when evaluated industrially, is five 
 
         percent permanent partial disability.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              When an injured worker reasonably declines offered surgical 
 
         treatment, the measure of recovery is an amount that is 
 
         approximately equal in value to the compensation payable for the 
 
         anticipated residual disability, if any, plus the direct expenses 
 
         of the surgery under section 85.27 and additional compensation 
 
         for healing period connected with the surgery.
 
         
 
              Once an injured worker has declined to undergo offered 
 
         surgery, and the employer has paid compensation for permanent 
 
         disability based upon the condition being untreated, the employee 
 
         is thereafter barred from requiring the employer to subsequently 
 
         pay the cost of the surgery and any healing period resulting from 
 
         the surgery if it is performed.
 
         
 
                                     ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         twenty-five (25) weeks of compensation for permanent partial 
 
         disability at the rate of three hundred forty-eight and 61/100 
 
         dollars ($348.61) per week payable commencing September 5, 1983.
 
         
 
              IT IS FURTHER ORDERED that defendants receive credit against 
 
         this award in the amount of seventy and 22/100 dollars ($70.22) 
 
         and that defendants pay interest on the award pursuant to section 
 
         85.30 of the Code.
 
         
 
              IT IS FURTHER ORDERED that claimant is barred from hereafter 
 
         seeking payment from defendants for the cost of hemorrhoid 
 
         surgery and from any compensation for healing period during any 
 
         period of recovery resulting from any such surgery.
 
         
 
              The costs of this proceeding are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33, 
 
         formerly Industrial Commissioner Rule 500-4.31.
 
         
 
              Defendants are directed to file claim activity reports as 
 
         requested by this agency.
 
         
 
         
 
         Signed and filed this 27th day of January, 1987.
 
         
 
         
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         PINTER V. FRED CARLSON CO., INC.
 
         Page   4
 
         
 
         
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. David L. Strand
 
         Attorney at Law
 
         103 River Street
 
         P. 0. Box 485
 
         Decorah, Iowa 52101
 
         
 
         Mr. Cecil L. Goettsch
 
         Attorney at Law
 
         1100 Des Moines Bldg.
 
         Des Moines, Iowa 50307
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.40; 1402.60 1704; 1803; 
 
                                            3800 
 
                                            Filed January 27, 1987 
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         JOSEPH PINTER,
 
         
 
              Claimant,
 
                                               FILE NOS. 796964 & 743088
 
         VS.
 
                                                 C 0 N C L U D I N G 
 
         FRED CARLSON CO., INC.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N 
 
         and
 
         
 
         BITUMINOUS CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         1402.40; 1402.60; 1704; 1803; 3800
 
         
 
              Where a worker declines surgery intended to correct 
 
         permanent disabilities resulting from a work related injury, the 
 
         proper measure of recovery is an amount approximately equal in 
 
         value to the anticipated residual permanent disability, the costs 
 
         of performing the surgery, including expenses under section 85.27 
 
         and healing period compensation during the period of disability 
 
         resulting from the surgery.  Reliance was placed upon Stufflebean 
 
         v. City of Fort Dodge, 233 Iowa 438, 9 N.W.2d 281 (1943).  
 
         Interest was awarded from the end of the original healing period 
 
         in 1983 with reliance placed upon Teel v. McCord, and the facts 
 
         that some degree of disability was apparent and the defendants 
 
         had the use of the funds during the intervening time.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         REX LEO RAMSEY,
 
                                                 File No. 743145
 
              Claimant,
 
                                                R U L I N G   O N
 
         VS.
 
                                               A P P L I C A T I 0 N
 
         VITALIS TRUCK LINES,
 
                                                     F 0 R
 
              Employer,
 
                                               D E C L A R A T I O N
 
         and
 
                                                    R U L I N G
 
         MICHIGAN MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
              On September 22, 1987 claimant filed a petition for 
 
         declaratory ruling.  The undersigned, having reviewed the 
 
         application, the same comes on for determination.
 
         
 
              It is clear from a review of the application that it fails 
 
         to meet the requirements for a petition for declaratory ruling.  
 
         Division of Industrial Services Rule 343-X.5 indicates that an 
 
         agency may refuse to issue a declaratory ruling for good cause.
 
         
 
              WHEREFORE, claimant's application for declaratory ruling is 
 
         refused for the following reasons.
 
         
 
              1.  The petition does not substantially comply with the 
 
         required form.
 
         
 
              2.  The questions presented would more properly be resolved 
 
         in a different type of proceeding.
 
         
 
              3.  The petition is not based upon facts calculated to aid 
 
         in the planning of future conduct but is, instead, based solely 
 
         upon prior conduct in an effort to establish the effect of that 
 
         conduct.
 
         
 
              4.  The questions presented by the petition are also 
 
         presented in a current contested case, or other agency or 
 
         judicial proceeding, that may definitively resolve them.  This is 
 
         not only shown by claimant's motion, but is evidence by a 
 
         proceeding which is currently before this agency by claimant 
 
         against the named defendants.
 
         
 
              THEREFORE, claimant's motion for declaratory ruling is 
 
         denied and dismissed.
 
                                                
 
                                                         
 
         
 
         
 
         Signed and file this 29th day of September, 1987.
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas J. Reilly
 
         Attorney at Law
 
         532 Euclid Avenue
 
         Des Moines, Iowa 50313
 
         
 
         Mr. William J. Schadle
 
         Attorney at Law
 
         Suite 210
 
         4900 University Avenue
 
         Des Moines, Iowa 50311
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Charles E. Cutler
 
         Attorney at Law
 
         729 Insurance Exchange Bldg.
 
         Des Moines, Iowa 50309
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRED BRILEY, JR.,
 
         
 
              Claimant,
 
                                                   File Nos. 743429
 
                                                             791343
 
         
 
         vs.
 
                                                A R B I T R A T I 0 N
 
         
 
         CITY OF DES MOINES,                       D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Fred Briley, 
 
         Jr., claimant, against City of Des Moines, Iowa, self-insured 
 
         employer, to recover benefits under the Iowa Workers' 
 
         Compensation Act as a result of injuries sustained on April 27, 
 
         1983 and March 29, 1985.  This matter came on for hearing before 
 
         the undersigned deputy industrial commissioner June 21, 1988.  
 
         The record was considered fully submitted at the close of the 
 
         hearing.  The record in this case consists of the testimony of 
 
         claimant and Jerry Riley, and joint exhibits 1 through 5, 
 
         inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved June 21, 1988, the following issues are presented for 
 
         resolution:
 
         
 
              1.  Whether the work injuries of April 27, 1983 and/or March 
 
         29, 1985 are the cause of permanent disability; and,
 
         
 
              2.  The extent of claimant's entitlement, if any, to 
 
         permanent partial disability benefits.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained.an injury on April 27, 1983 which arose 
 
         out of and in the course of his employment when, while lifting a 
 
         garbage container from the curb, he felt pain in his left lower 
 
         back.  Claimant recalled he was unable to work any further, that 
 
         he went to the city clinic for treatment and that when he was "no 
 
         better" after two weeks, he was referred to Sinesio Misol, M.D. 
 
         who diagnosed a herniated disc at L4-L5 and recommended 
 
         conservative treatment.  Claimant testified he was off work for 
 
         three months or more and that when released, he "believed" it was 
 
         to light duty.  Claimant stated that when he took his daughter to 
 
         Mayo Clinic a few months later he also saw a physician there who 
 
         rated him as having a 15 percent permanent partial impairment.  
 
         Claimant testified that although he is not "in pain" his lower 
 

 
         back still bothers him at certain times, that the injured area is 
 
         "like a weak spot," that he takes medication when he "overdoes" 
 
         and that Dr. Misol told him to look for other work or "learn to 
 
         live with it."  Claimant acknowledged he had some low back 
 
         problems in 1975 which caused him to be off work for a period of 
 
         time and that he was not given any impairment rating as a result 
 
         of that injury.
 
         
 
              Claimant sustained an injury on March 29, 1985 which arose 
 
         out of and in the course of his employment when he thought he 
 
         pulled a muscle in his left shoulder and could not lift his 
 
         arm.  Claimant recalled that when he got no relief from the 
 
         city clinic, he returned to see Dr. Misol who diagnosed an 
 
         injury to C3-C4 and referred him to John T. Bakody, M.D.  
 
         Claimant offered that he was again treated conservatively with 
 
         traction at home and physical therapy.  Claimant stated he was 
 
         released to return to work approximately one year later with 
 
         the recommendation to find something easier to do and that he 
 
         was given a 10 percent impairment rating.
 
         
 
              Claimant stated that when he returned to work, he was 
 
         given a truck driving position but told he could not have that 
 
         job after doing it for three weeks and that he had to return to 
 
         solid waste or take a laborer's position in street maintenance 
 
         which claimant felt would have reduced his pay by approximately 
 
         $1,500 per year.  Claimant has applied for other positions with 
 
         the city but did not meet the job qualifications and has 
 
         returned to the solid waste division where he currently earns 
 
         $12.00 per hour.
 
         
 
              On cross-examination, claimant revealed he does not have 
 
         to lift any trash cans which weigh in excess of 65 pounds since 
 
         the city has a 65 pound weight limit on trash cans.  Claimant 
 
         admitted he is under no lifting restrictions, that he is 
 
         currently holding the same job as he held at the time of his 
 
         injuries paying the same amount of money, and that he declined 
 
         to take certain other jobs which may have been made available 
 

 
         
 
         
 
         
 
         BRILEY V. CITY OF DES MOINES
 
         PAGE   3
 
         
 
         to him because he may have lost seniority, vacation and salary 
 
         benefits.
 
         
 
              Jerry Riley, who identified himself as supervisor of the 
 
         City of Des Moines Solid Waste Department, testified claimant 
 
         has been a good worker who finishes his route on time and that 
 
         he has had no complaints that claimant has been unable to do 
 
         his job.  Mr. Riley acknowledged that claimant at times has 
 
         stated his back hurts when he has finished his route but to his 
 
         knowledge claimant was never required to go to the city clinic 
 
         as a consequence of his complaints.  Mr. Riley opined that 
 
         based on claimant's past job performance claimant should have 
 
         no problem retaining his-position with the city.
 
         
 
              Michael Peterson, who identified himself as the safety and 
 
         training administrator for the City of Des Moines and who is 
 
         responsible for administration of comprehensive loss control 
 
         and self-insurance compensation program, testified that 
 
         following claimant's injury on April 27, 1983, claimant was 
 
         seen by the City's employee health clinic and by Gary Breman, 
 
         D.O., and went through conservative care treatment including 
 
         physical therapy until he was referred to Dr. Misol for a 
 
         second opinion.  Mr. Peterson recalled Dr. Misol removed 
 
         claimant from the light duty work claimant had been performing, 
 
         took claimant completely off work until August 15, 1983 when 
 
         claimant returned to work with a 20 pound weight restriction 
 
         and returned claimant to regular duty without restriction on 
 
         August 26, 1983.  Mr. Peterson explained claimant continued to 
 
         perform his regular duties until the injury of March 29, 1985 
 
         at which time claimant was seen and treated conservatively by 
 
         the city physician, Randy Miller, D.O., who, after four days, 
 
         referred claimant to Dr. Misol who later referred claimant to 
 
         Dr. Bakody.  Mr. Peterson testified that claimant was treated 
 

 
         
 
         
 
         
 
         BRILEY V. CITY OF DES MOINES
 
         PAGE   4
 
         
 
         conservatively, that claimant returned to work on light duty 
 
         working half days from May 20 through August 7, 1985, that 
 
         claimant was on light duty full days from August 8, 1985 until 
 
         March 10, 1986 when claimant was discharged from Dr. Bakody's 
 
         care.  Mr. Peterson explained that although other positions 
 
         were offered claimant, claimant was very much against taking 
 
         any other kind of position and that claimant said he definitely 
 
         could still handle his old job in solid waste and wanted to go 
 
         back to that.  On April 18, 1986, Mr. Peterson wrote to 
 
         claimant:
 
         
 
                   This letter is to clarify the conditions 
 
              surrounding your return to work for the City of Des 
 
              Moines as a Refuse Collector.
 
         
 
                   You have been given a release to return to work as 
 
              a Refuse Collector by Dr. Bakody and also by Dr. 
 
              Miller.  However, those have been made with the 
 
              recommendation for you to get to a different position 
 
              that requires less lifting and pressure.
 
         
 
                   The City has strongly encouraged you to seek 
 
              another position, especially one as a laborer in Sewer 
 
              Maintenance, posted for April 18, 1986.  Since that 
 
              position would be a voluntary demotion, the City also 
 
              agrees to pay you at the top of the pay grade 18 rather 
 
              than that at the laborer rate 16A, salary $20,149 
 
              -vs-$18.859.
 
         
 
                   This pay offer is with the understanding that it 
 
              would be frozen at that rate until it was balanced with 
 
              the salaries of other comparable positions.  It is also 
 
              understood that you would probably have an opportunity 
 
              to bid on a higher paying truck driver job within a 
 
              reasonably short period of time, thereby lifting the 
 
              pay freeze.
 
         
 
                   I strongly encourage you to bid on the laborer 
 
              position at the pay level scheduled above.  However, if 
 
              you choose to go back as Refuse Collector, you are free 
 
              to do so.  In the event you are injured as a Refuse 
 
              Collector, it may very well effect the City's ability 
 
              to assist you further in employment opportunities.
 
         
 
         (Joint Exhibit 4)
 
         
 
              Mr. Peterson stated claimant returned to his job in solid 
 
         waste without any restrictions and that he has not had any 
 
         indication claimant has not been performing his job.
 
         
 
              Marshall Flapan, M.D., who saw claimant after his 1975 
 
         injury while claimant was working for Metro Solid Waste, opined 
 
         on July 6, 1975:
 
         
 
                 Impression: L-5 radiculopathy on the left, most 
 
     
 
         
 
         
 
         
 
         
 
         BRILEY V. CITY OF DES MOINES
 
         PAGE   5
 
         
 
              likely secondary to a herniated lumbar intervertebral 
 
              disc at L-4, L-5.
 
         
 
                 Comments & recommendations:  It is my opinion that 
 
              the above condition was secondary to a straining 
 
              incident while at work.  However, at this time, this 
 
              man is relatively pain-free.  He does demonstrate the 
 
              weakness but this is not an indication for surgery.  
 
              The only indication for surgery would be progressive 
 
              neurological deficit or unrelenting pain.  I believe 
 
              this man now is suited to return to work at Metro Solid 
 
              Waste on June 2, 1975.  I invited him to return to see 
 
              me in six weeks for a follow-up check.
 
         
 
         (Jt. Ex. 1, Item 1)
 
         
 
              The medical records of Sinesio Misol, M.D., of Orthopedic 
 
         Associates, show claimant was first seen by Dr. Misol on May 31, 
 
         1983 with a diagnosis of:
 
         
 
                 Degenerative disc disease from previously partial 
 
              herniation of L4/5 disc, also involvement of the 3/4 to 
 
              a slight extent radiographically with an aggravation 
 
              sustained while at work four weeks ago producing a left 
 
              sciatica without significant neurological deficit.
 
         
 
         (Jt. Ex. 1, Item 14)
 
         
 
              Dr. Misol recommended claimant remain off work and  the plan 
 
         was to treat claimant conservatively.  Dr.  Misol  noted on 
 
         August 5, 1983 that claimant was also completely recuperated from 
 
         the Left L4/5 disc sciatica and released claimant to return to 
 
         work August 15, 1983 with a 20 pound weight lifting restriction 
 
         and to regular duty on August 29, 1983.  Follow-up appointments 
 
         with Dr. Misol through November 1984 revealed claimant 
 
         "altogether is doing well" and had "so far compensated 
 
         degenerative disc disease L4/5 without neurological deficit."  
 
         Dr. Misol did not express an opinion on impairment at this time 
 
         but stated on November 7, 1984: "The patient is to continue to 
 
         work, I think what he is doing which is taking a day or two of 
 
         rest when symptoms start to aggravate is appropriate.  I would 
 
         like to se (sic] him in the summer of 1985 for a follow up 
 
         lateral x-ray of the lumbosacral spine." (Jt. Ex. 1, Item 39)
 
         
 
              Hymie Gordon, M.D., Chairman, Department of Medical 
 
         Genetics, Mayo Clinic, advised claimant on September 27, 1983:
 
         
 
              [Y]ou have a damaged disc between the 3rd and 4th 
 
              lumbar vertebras.  Fortunately, at present, this is not 
 
              causing severe symptoms; therefore, surgical treatment 
 
              is not required.  However, if you strain your back 
 
              again, the acute symptoms could recur.  Therefore, I 
 
              suggest that, if at all possible, you should try to 
 
              change your job to one that does not require you to 
 
              bend frequently or to lift heavy objects.
 
         
 
         (Jt. Ex. 1, Item 31)
 
         
 
              On February 21, 1984, at the request of Dr. Gordon, claimant 
 
         was evaluated by Steven W. Krein, M.D., Chief Resident Associate, 
 

 
         
 
         
 
         
 
         BRILEY V. CITY OF DES MOINES
 
         PAGE   6
 
         
 
         Orthopedic Surgery, Mayo Clinic, for low back and left lower 
 
         extremity pain.' Dr. Krein found:
 
         
 
                 X-rays of the lumbar spine showed narrowing of the 
 
              L3-4 and L4-5 disk spaces with degenerative changes 
 
              present.
 
         
 
                 The assessment was that of mechanical low back pain 
 
              secondary to degenerative disk disease.  The patient 
 
              had no evidence for radiculopathy.
 
         
 
                 ....
 
         
 
                 Based on the patient's subjective symptoms and the 
 
              findings of decreased lumbar spine motion, his 
 
              permanent partial impairment is estimated at 15 percent 
 
              of the whole man.  The repetitive lifting of heavy 
 
              garbage containers, which-is apparently involved in 
 
              this patient's work, is a likely contributory factor in 
 
              his low back discomfort. if possible, a change in the 
 
              patient's job assignment limiting the amount of 
 
              repetitive lifting to approximately 50 lbs. would be in 
 
              order.
 
         (Jt. Ex. 1, Item 34)
 
              Neurological consultation with Robert D. Fealey, M.D., of 
 
         the Mayo Clinic Department of Neurology, on February 22, 1984 
 
         resulted in the opinion that:
 
         
 
              Mr. Briley had mechanical low back pain secondary to 
 
              degenerative disc disease, without convincing evidence 
 
              for nerve root compression.  Secondly, I thought Mr. 
 
              Briley had classical migraine headaches with his visual 
 
              obscurations compatible with a migraine scintillating 
 
              scotomata.
 
         
 
              I saw no need for the neurosurgeon regarding the 
 
              patient's back and leg pain at this point.  I concurred 
 
              with the plan of physical therapy, heat, massage, 
 
              simple non-narcotic analgesics, and an 
 
              anti-inflammatory agent to help control the symptoms 
 
              .... I thought it would be advisable for Mr. Briley to 
 
              avoid heavy lifting.  He mentioned looking into a job 
 
              assignment to accomplish this.
 
         
 
         (Jt. Ex. 1, Item 38)
 
         
 
              Records reveal that following claimantOs injury of March 29, 
 
         1985, claimant was on light duty and started outpatient physical 
 
         therapy before returning to see Dr. Misol on April 16, 1985.  Dr. 
 
         Misol found x-rays of the shoulder to be negative and recommended 
 
         claimant be given "a week and a half off work" to attend daily 
 
         physical therapy sessions.  On May 1, 1985, Dr. Misol reported 
 
         that AP and lateral x-rays of the cervical spine revealed 
 
         narrowing of the C5-6 disc and claimant was referred to Dr. 
 
         Bakody for examination.
 
         
 
              Claimant was seen by Dr. Bakody in the emergency room at 
 
         Mercy Hospital Medical Center on May 4, 1985 describing fairly 
 
         constant aching of the left shoulder and shoulder blade which was 
 
         aggravated with use of the arm at the shoulder.  Dr. Bakody 
 

 
         
 
         
 
         
 
         BRILEY V. CITY OF DES MOINES
 
         PAGE   7
 
         
 
         stated on May 6, 1985:
 
         
 
                 It is my opinion that Mr. Briley has a cervical 
 
              radicular compression on the left which does not appear 
 
              to be segmental at the time of my examination.  I 
 
              suggested that he continue upon physical therapy on a 
 
              daily basis and that home cervical traction be added to 
 
              his therapy .... If he does not continue to improve 
 
              consideration should be given to myelography and 
 
              perhaps anterior cervical interbody fusion.
 
         
 
         (Jt. Ex. 1, Item 65)
 
         
 
              Claimant was released by Dr.  Bakody  to  return  to  light 
 
         duty work on August 12, 1985 with the restrictions of no "truck 
 
         driving or heavy use of back" and was instructed to continue 
 
         physical therapy.  On March 10, 1986, Dr. Bakody, in a letter to 
 
         Randy Miller, D.O., of the city health department, wrote:
 
         
 
              I have had occasion to see Mr.Briley in the office for 
 
              progress examinations on the dates of January 21 and 
 
              March 3, 1986.  At the January visit he did not believe 
 
              he had improved and was continuing to receive out 
 
              patient physical therapy on an every-other-day basis.  
 
              He indicated that he does not believe he can return to 
 
              work at his prior job and when seen in March was 
 
              receiving physical therapy twice a week and including 
 
              the use of the exercise bicycle and exercising with the 
 
              Nautilus equipment.  HE [sic] was using ice massage 
 
              instead of moist heat.  The patient appears to hold his 
 
              neck tightly but the neurologic findings are 
 
              essentially normal.  The patient was essentially 
 
              discharged from my care and continue under your 
 
              guidance.  I would leave increasing his work activity 
 
              up to you.
 
         
 
         (Jt. Ex. 1, Item 133)
 
         
 
              On July 24, 1986, Dr. Bakody opined:
 
         
 
              It is my opinion that as a result of the work duties 
 
              described by Mr. Briley that Mr. Briley sustained a 
 
              traumatic cervical syndrome.  Mr. Briley does have 
 
              x-ray evidence of cervical spondylosis, which condition 
 
              no doubt did pre-exist any particular injury but which 
 
              condition can be aggravated by the work Mr. Briley is 
 
              engaged in.  According to the Manual for Orthopaedic 
 
              Surgeons in Evaluating Permanent Physical Impairment 
 
              .... Mr. Briley has about a 10 percent permant [sic] 
 
              physical impairment and loss of physical function as 
 
              related to the body as a whole.
 
         
 
         (Jt. Ex. 1, Item 138)
 
         
 
              Dr. Bakody specified that the "figure of 10 percent" was all 
 
         attributable to the 1985 injury.
 
         
 
              On April 5, 1988, Dr. Misol advised defendant's counsel:
 
         
 
              I'm afraid at this time I will not be able to separate 
 

 
         
 
         
 
         
 
         BRILEY V. CITY OF DES MOINES
 
         PAGE   8
 
         
 
              the amount of physical impairment for injuries 
 
              sustained in 1975 and 1983.  As you can see from my 
 
              letter, when I last saw him it was my opinion that the 
 
              total would be in the neighborhood of 5 to 7% and I do 
 
              not know how you can separate how much it is, not only 
 
              from previous injuries but also how much has to do with 
 
              normal "attrition" by age.
 
         
 
         (Jt. Ex. 1, Item 147)
 
         
 
              Claimant was evaluated by Scott B. Neff, D.O., in 
 
         approximately October 1985, who stated:
 
         
 
                 Based on the information that I have at hand, and 
 
              the physical examination that I have done, I do not 
 
              find any evidence of neurologic injury, and do not 
 
              believe that the patient has had a neck injury, which 
 
              is directly related to his work.  He has not had a blow 
 
              to his head, or a forceful situation to his head or 
 
              neck.  He has had a muscle strain to the trapezius 
 
              complex, which supports the head and neck, and this 
 
              apparently is resolving.
 
         
 
                 Because he says himself, that he is improved, I 
 
              would recommend that he be returned to work.  He is 
 
              currently on light duty, and is scheduled to see Dr. 
 
              Bakody in the next week or two for release to normal 
 
              activity.
 
         
 
                 I would concur that he could be released to normal 
 
              activity, and do not feel that he has had any permanent 
 
              impairment or disability with reference to his injury.
 
         
 
         (Jt. Ex. 1, Item 102)
 
         
 
                           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(l).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of April 27, 1983 and March 29, 
 
         1985 are causally related to the disability on which he now bases 
 
         his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974) and the 
 
         expert opinion may be accepted or rejected, in whole or in part, 
 
         by the trier of fact.  Id. at 907.  Further, the weight to be 
 
         given to such an opinion is for the finder of fact, and that may 
 

 
         
 
         
 
         
 
         BRILEY V. CITY OF DES MOINES
 
         PAGE   9
 
         
 
         be affected by the completeness of the premise given the expert 
 
         and other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Iowa Code section 85.34(2)(u) provides:
 
         
 
                 In all cases of permanent partial disability other 
 
              than those hereinabove described or referred to in 
 
              paragraphs "a" through "t" hereof, the compensation 
 
              shall be paid during the number of weeks in relation to 
 
              five hundred weeks as the disability bears to the body 
 
              of the injured employee as a whole.
 
         
 
                 If it is determined that an injury has produced a 
 
              disability less than that specifically described in 
 
              said schedule, compensation shall be paid during 
 
              the-lesser number of weeks of disability determined, as 
 
              will not exceed a total amount equal to the same 
 
              percentage proportion of said scheduled maximum 
 
              compensation.
 
         
 
              The parties have stipulated claimant sustained injuries on 
 
         April 27, 1983 and March 29, 1985 which arose out of and in the 
 
         course of his employment.  The essential question for resolution 
 
         is whether either or both of those injuries is the cause of any 
 
         permanent disability.
 
         
 
              Generally, a claim of permanent disability invokes an 
 
         initial determination of whether the work injury was the cause of 
 
         permanent physical impairment or permanent limitation in work 
 
         activity.
 
         
 
              Dr. Misol, claimant's primary treating physician following 
 
         the 1983 injury, has opined claimant's impairment to be in the 
 
         "neighborhood" of 5 to 7 percent but cannot separate how much is 
 
         from injuries as opposed to age.  Physicians from the Mayo Clinic 
 
         who evaluated claimant following the 1983 injury found claimant 
 
         to have a 15 percent permanent partial impairment due to 
 
         subjective symptoms and decreased lumbar spine motion defined as 
 
         "mildly limited in all directions."  However, claimant's 
 
         testimony establishes that he did not provide the Mayo Clinic 
 
         with any medical records which may have shown his condition as of 
 
         the time he was injured in 1975 or immediately thereafter.  As a 
 
         consequence, the doctors' abilities to evaluate claimant's 
 
         condition as it related to the 1983 injury and to differentiate 
 
         between what happened to claimant in 1983 as opposed to 1975 
 
         appear to be somewhat restricted.  Based upon the experience of 
 
         the undersigned, it is believed claimant, diagnosed with a 
 
         herniated disc in 1975, may have had an impairment of at least 10 
 
         percent to the body as a whole at that time.
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756,   (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812,   (1962).  
 

 
         
 
         
 
         
 
         BRILEY V. CITY OF DES MOINES
 
         PAGE  10
 
         
 
         The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation section 555(17)a.
 
         
 
              Since Dr. Misol did not find claimant any more impaired than 
 
         he might have been in 1975 and the opinions of the physicians 
 
         from the Mayo Clinic are suspect in light of the 1975 injury, the 
 
         undersigned concludes that claimant has failed to establish he 
 
         materially aggravated his preexisting condition and that claimant 
 
         has established only that he sustained a temporary aggravation of 
 
         a preexisting condition.  Since claimant has been compensated for 
 
         the period of time he was off work, claimant is entitled to no 
 
         further compensation and claimant has failed to establish he 
 
         sustained any permanent partial disability as a result of the 
 
         1985 injury.
 
         
 
              Attention is thus turned to the injury claimant sustained in 
 
         1985.  Dr. Bakody, who treated claimant for the 1985 injury on 
 
         referral from Dr. Misol, stated that claimant had preexisting 
 
         cervical sponoylosis, that such a condition "can" be aggravated 
 
         by work claimant performed and opined that claimant has about a 
 
         10 percent permanent partial impairment to the body as a whole.  
 
         Dr. Neff did not find claimant had any permanent impairment with 
 
         reference to this injury and neither physician imposed any work 
 
         restrictions on claimant's employability.  Claimant also 
 
         acknowledged he is not currently working under any employment 
 
         restrictions.  The undersigned concludes that the greater weight 
 
         of evidence would establish claimant has sustained a permanent 
 

 
         
 
         
 
         
 
         BRILEY V. CITY OF DES MOINES
 
         PAGE  11
 
         
 
         impairment as a result of the injury.  Dr. Bakody was claimant's 
 
         principal treating physician, saw claimant after Neff and is 
 
         considered to have had more of an opportunity to see claimant's 
 
         progress, difficulties, changes, symptoms and conditions.
 
         
 
             Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy to draw upon prior 
 
         experience, general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); 
 
         Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985).
 
         
 
              Claimant is 41 years old with a tenth grade education and 
 
         has been with the solid waste department for the City for a total 
 
         of fifteen years.  Claimant has returned to work without 
 
         restrictions, to the same job he held at the time of this injury 
 

 
         
 
         
 
         
 
         BRILEY V. CITY OF DES MOINES
 
         PAGE  12
 
         
 
         and at the same rate of pay.  Claimant has, therefore, not lost 
 
         any actual earnings.  It would appear from both Mr. Riley's and 
 
         Mr. Peterson's testimony that claimant's position with the city 
 
         is as secure as any job can be and possibly more secure than 
 
         most.  The facts of this case are not unlike those addressed in 
 
         Harrison v. Bussing Automotive, Inc., Appeal Decision filed July 
 
         27, 1987.  There, the industrial commissioner stated:
 
         
 
                 Claimant has not shown that he has had an actual 
 
              reduction in earning as a result of his injury.  
 
              However, reduction in earnings is only one of the 
 
              considerations in determining reduction of earning 
 
              capacity.
 
         
 
                 The physical restrictions imposed on claimant as 
 
              well as his back surgery would discourage some 
 
              employers from hiring claimant.  The fact that claimant 
 
              may not ever have to seek employment from other 
 
              employers does not completely negate the effect of the 
 
              injury on claimant's earning capacity.  It is 
 
              determined that as a result of his injury, claimant has 
 
              an industrial disability of four percent.
 
         
 
              While it is recognized that claimant has no restrictions and 
 
         is not now a candidate for surgery, unlike the claimant in 
 
         Harrison, claimant has had two prior back injuries, a cervical 
 
         injury and it has been recommended, not only by Dr. Bakody but 
 
         also by Dr. Miller of the city clinic, that claimant acquire a 
 
         position involving less lifting and pressure.  Indeed, the letter 
 
         from Mr. Peterson to Mr. Briley establishes that the city 
 
         strongly encouraged claimant to see other employment within the 
 
         city.  The fact that claimant's position with the city may be 
 
         secure and that claimant may never have to seek employment from 
 
         other employers does not completely negate the effect of the 
 
         injury on claimant's earning capacity.  Considering then all the 
 
         elements of industrial disability, it is determined that claimant 
 
         has established he sustained a permanent partial disability of a 
 
         percent for industrial purposes as a result of the injury of 
 
         March 29, 1985.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHerefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury on April 27, 1983 which 
 
         arose out of and in the course of his employment.
 
         
 
              2.  Claimant was diagnosed as having a herniated disc at 
 
         L4-L5 and underwent a course of conservative treatment until he 
 
         returned to work on light duty August 15, 1983.
 
         
 
              3.  On August 26, 1983, claimant returned to his regular job 
 
         without restrictions at his regular rate of pay.
 
         
 
              4.  Claimant had prior back problems as a result of an 
 
         injury in 1975 and at that time was diagnosed as having a 
 
         herniated lumbar intervertebral disc at L-4, L-5.
 
         
 
              5.  As a result of the injury of April 27, 1983, claimant 
 

 
         
 
         
 
         
 
         BRILEY V. CITY OF DES MOINES
 
         PAGE  13
 
         
 
         sustained no permanent impairment and no restrictions were 
 
         imposed on his employability.
 
         
 
              6.  Claimant, as a result of the injury of April 27, 1983, 
 
         suffered a temporary aggravation of a preexisting condition.
 
         
 
              7.  Claimant sustained an injury on March 29, 1985 which 
 
         arose out of and in the course of his employment.
 
         
 
              8.  Claimant was diagnosed as having a cervical radicular 
 
         compression on the left and was treated conservatively 
 
         thereafter.
 
         
 
              9.  Claimant was released to return to light duty work on 
 
         August 12, 1985 and was eventually released to return to work 
 
         without restriction although it was recommended claimant find a 
 
         position other than with the solid waste department.
 
         
 
             10.  Claimant, who was rejected from other positions with the 
 
         city due to a lack of qualification and who rejected other 
 
         positions due to a potential loss of benefits, elected to return 
 
         to the solid waste department.
 
         
 
             11.  Claimant is currently performing the same job he held at 
 
         the time of his injury and is paid at the same rate scale.
 
         
 
             12.  Claimant suffered a permanent impairment as a result of 
 
         the injury of March 29, 1985.
 
         
 
             13.  Claimant, although he sometimes feels pain and stiffness 
 
         at the end of the day, is capable of performing his job and his 
 
         job with the city is as secure as any job and probably more 
 
         secure than most.
 
         
 
             14.  Claimant, age 41, with a tenth grade education, has been 
 
         with the solid waste department for a total of 15 years.
 
         
 
             15.  Claimant has not suffered any actual loss of earnings.
 
         
 
             16.  As a result of the injury of March 29, 1985, claimant 
 
         has suffered a loss of earning capacity.
 
         
 
             17.  Claimant has sustained a permanent partial disability of 
 
         5 percent for industrial purposes as a result of the injury of 
 
         March 29, 1985.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has established he suffered a temporary 
 
         aggravation of a preexisting condition as a result of the injury 
 
         of April 27, 1983.
 
         
 
              2.  Claimant has established he sustained a permanent 
 
         partial disability of 5 percent for industrial purposes as a 
 
         result of the injury of March 29, 1985.
 
         
 
                                      ORDER
 

 
         
 
         
 
         
 
         BRILEY V. CITY OF DES MOINES
 
         PAGE  14
 
         
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant, having been paid all that to which he is entitled 
 
         as a result of the injury of April 27, 1983, shall take nothing 
 
         further from these proceedings on account of that injury.
 
         
 
              Defendant shall pay unto claimant twenty-five (25) weeks of 
 
         permanent partial disability benefits as a result of the injury 
 
         of March 29, 1985 at the stipulated rate of two hundred fifty-two 
 
         and 44/100 dollars ($252.44) commencing April 7, 1986.
 
         
 
              Defendant shall receive full credit for all permanent 
 
         partial disability benefits previously paid as a result of the 
 
         injury of March 29, 1985.
 
         
 
              Payments which have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              A claim activity report shall be filed upon payment of this 
 
         award.
 
         
 
              Costs of this action are assessed against defendant pursuant 
 
         to Division of Industrial Services rule 343-4.33.
 
         
 
             Signed and filed this 13th of December, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        DEBORAH A. DUBIK
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Jon Valey
 
         Attorney at Law
 
         1000 73rd St Ste 10
 
         Des Moines, IA 50311
 
         
 
         Ms. Anne L.Clark
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover Building
 
         Des Moines, IA 50319
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40; 1803
 
                                                 Filed December 14, 1988
 
                                                 DEBORAH A. DUBIK
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         FRED BRILEY, JR.,
 
         
 
               Claimant,                       File Nos. 743429
 
                                                         791343
 
         
 
         vs.
 
                                             A R B I T R A T I 0 N
 
         
 
         CITY OF DES MOINES,
 
                                               D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1402.40; 1803
 
         
 
              Claimant failed to sustain his burden that he had any 
 
         permanent partial disability as a result of an injury arising out 
 
         of and in the course of his employment on April 27, 1983.  
 
         CLaimant had prior back problems as a result of an injury in 1975 
 
         and at that time was diagnosed as having a herniated lumbar 
 
         intervertebral disc at L4, L5.  As a result of the injury of 
 
         April 27, 1983, claimant sustained no permanent impairment and no 
 
         restrictions were imposed on his employability.  Claimant 
 
         established that he suffered a temporary aggravation of a 
 
         preexisting condition and no permanent partial disability 
 
         benefits were awarded on that injury.
 
         
 
               Claimant also sustained an injury which arose out of and in 
 
         the course of his employment on March 29, 1985 which was 
 
         diagnosed as cervical radicular compression on the left.  
 
         Claimant suffered a permanent impairment as a result of the 
 
         injury and although claimant was capable of returning to his 
 
         regular employment and suffered no actual loss of earnings, it 
 
         was found claimant did suffer a loss of earning capacity and 
 
         claimant had sustained a permanent partial disability of 5 
 
         percent for industrial purposes.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JAMES W. LACKEY,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                     File Nos. 744035
 
         KELLER PATTERN CO.,                                   795344
 
         
 
              Employer,                           A R B I T R A T I 0 N
 
         
 
         and                                         D E C I S I 0 N
 
         
 
         UNITED STATES FIDELITY &
 
         GUARANTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              These are proceedings in arbitration brought by the 
 
         claimant, James W. Lackey, against his employer, Keller Pattern 
 
         Company, and its insurance carrier, United States Fidelity & 
 
         Guaranty Company, to recover benefits under the Iowa WorkersO 
 
         Compensation Act as a result of injuries sustained February 22, 
 
         1983 and May 30, 1984.  This matter came on for hearing before 
 
         the undersigned deputy industrial commissioner at Davenport, 
 
         Iowa, on July 21, 1987.  First reports of injury were filed on 
 
         September 12, 1983 and July 17, 1985, respectively.
 
         
 
              The record in this case consists of the testimony of 
 
         claimant and of F. Dale Wilson, M.D., of joint exhibits 1 through 
 
         17 and of claimant's exhibits A through E. Defendants' objection 
 
         to claimant's exhibit C is overruled.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that claimant received an injury which arose out of and in the 
 
         course of his employment and that there was a causal relationship 
 
         between the claimed injury and claimed disability.  They further 
 
         stipulated that claimant's healing period for the 1983 injury ran 
 
         from May 9. 1983 to June 6, 1983, with permanent partial 
 
         disability benefits, if due, commencing on June 6, 1983.  They 
 
         stipulated that claimant's healing period for the 1984 injury ran 
 
         from June 16, 1984 to January 7, 1985, with permanent partial 
 
         disability benefits, if due, commencing on January 7, 1985.
 
         
 
              The parties stipulated that, as a result of his injury of 
 
         February 22, 1983, claimant was entitled to healing period 
 
         benefits of four weeks and received 25 weeks of permanent 
 

 
         
 
         
 
         
 
         LACKEY V. KELLER PATTERN CO.
 
         Page   2
 
         
 
         
 
         partial disability payments.  Total payments made to claimant 
 
         on account of that injury were $12,152.52 with interest of 
 
         $159.14.  The parties further stipulated that, as a result of 
 
         his May 30, 1984 injury, claimant was entitled to healing 
 
         period benefits of 30 weeks and three days and received 12 1/2 
 
         weeks of permanent partial disability payments.  Total payments 
 
         made to claimant on account of that injury were $18,248.88.
 
         
 
              The issues remaining to be decided are:
 
         
 
              The nature and extent of claimant's benefit entitlement.  
 
         As regards this issue, the parties stipulated that claimant's 
 
         injuries are such that his permanent disability is a scheduled 
 
         member disability to the right arm; and,
 
         
 
              Claimant's rate of weekly compensation, in the event of an 
 
         award.  As regards this issue, the parties have stipulated that 
 
         claimant is married and is entitled to three exemptions.
 
         
 
         
 
                              REVIEW OF EVIDENCE
 
         
 
              James W. Lackey reported that he was employed as a pattern 
 
         maker leadman for the Keller Pattern Company at the time of the 
 
         February 22, 1983 and the May 30, 1984 injuries and until the 
 
         plant's closing on December 27, 1984.  He identified joint 
 
         exhibits 15 and 16 respectively as copies of his 1983 and 1984 
 
         pay stubs.  Claimant testified that holiday pay was paid on 
 
         weekly checks received, but that no pay stubs were received on 
 
         holiday weeks or for weeks for which unemployment compensation 
 
         was received.  Claimant reported that he injured himself on 
 
         February 22, 1983 when a pattern mold fell on his right arm.  He 
 
         reported he saw his family physician in April, 1983 and was 
 
         referred to Thomas L. Von Gillern, M.D., who subsequently 
 
         performed carpal tunnel surgery.  Claimant reported that, on May 
 
         30, 1984, he was tightening a vise grip when he experienced a 
 
         burning sensation in the wrist area.  He apparently again saw Dr. 
 
         Von Gillern and a hand cast was applied, apparently for 
 
         ligamentous tears and bone damage.  Bruce Sprague, M.D., 
 
         subsequently performed surgery on August 28, 1984.  Claimant 
 
         described that surgery as alleviating his pain to a great extent, 
 
         but as creating a condition wherein he can no longer bend his 
 
         wrist or use his wrist for a lot of work.
 
         
 
              Claimant saw Dr. Sprague for evaluation only in July, 1985. 
 
          Claimant self-described that evaluation as very short and as 
 

 
         
 
         
 
         
 
         LACKEY V. KELLER PATTERN CO.
 
         Page   3
 
         
 
         
 
         involving tests of mobility, squeezing his fingers and a "tape 
 
         measure test."
 
         
 
              F. Dale Wilson, M.D., evaluated claimant on September 29, 
 
         1985.  Claimant described that evaluation as lasting 
 
         approximately 2 1/2 hours and as involving a pinch test, rotation 
 
         testing, wrist movement testing, nerve testing, testing for hot 
 
         and cold sensation and testing for grip strength.
 
         
 
              Paul C. Cunnick, M.D., also evaluated claimant.  Claimant 
 
         described this evaluation as less comprehensive and as involving 
 
         nerve conduction and grip strength tests.
 
         
 
              Dr. Von Gillern evaluated claimant by reference, to the 
 
         Franciscan Hospital for examination on August 20, 1986.  Claimant 
 
         described such testing as involving dexterity testing, lifting 
 
         weights, nerve testing, "sweat testing", and "putting pegs in 
 
         holes."
 
         
 
              Claimant is right-hand dominant.  He now works for Liberty 
 
         Patterns where he does small pattern work.  He reported that he 
 
         allows his apprentice to do larger items and that he has left 
 
         work on occasion when no work which he could perform was 
 
         available.  Claimant is self-described as having a 50-pound 
 
         lifting restriction, as being unable to hold weight in front of 
 
         himself, as having muscle cramps upon attempting to carve wood, 
 
         as having loss of sensation in the last two fingers of his hand, 
 
         as having muscle spasms after performing repetitious, tedious 
 
         work and as having difficulty turning screws.  Claimant reported 
 
         that he had broken a bone in his long finger, apparently on the 
 
         right, as a child and that that finger did not bend properly at 
 
         the last joint.
 
         
 
              Claimant agreed he had seen Dr. Von Gillern monthly in 
 
         spring and summer, 1985 and that, in August, 1985 and again in 
 
         August, 1986, Dr. Von Gillern did not recommend further 
 
         treatment.
 
         
 
              F. Dale Wilson, M.D., testified that he is a surgeon who 
 
         graduated from medical school in 1938 and has been in practice in 
 
         the Davenport, Iowa area since 1947.  Dr. Wilson reported that he 
 
         examined and did not treat claimant.  Dr. Wilson explained 
 
         detailed examinations and measurements he had used in evaluating 
 
         claimant and also reported he had reviewed various medical 
 
         records regarding claimant's conditions and treatments that were 
 
         submitted for his perusal.  Dr. Wilson reported that he ascribed 
 
         a 19% impairment of the extremity for loss of wrist motion, a 
 
         five percent loss for impairment of the radial nerve, a 10% loss 
 
         for impairment of the ulnar nerve, a five percent loss for 
 
         impairment of the median nerve, a five percent impairment because 
 
         claimant had difficulty reaching out and picking up items and a 
 
         three percent loss for pain, which he stated claimant described 
 
         as a constant, dull ache coming from the joint, but as not 
 
         interfering with work or sleep or requiring medical attention.  
 
         The doctor reported that claimant's impairment would be 47%, 
 
         apparently of  the extremity, if the combined values chart of the 
 
         AMA guides was used or 53% if the various impairments he had 
 
         ascribed were simply combined additionally.
 
         
 

 
         
 
         
 
         
 
         LACKEY V. KELLER PATTERN CO.
 
         Page   4
 
         
 
         
 
              Dr. Wilson reported that Dr. Sprague, in evaluating 
 
         claimant, assigned no impairment for neurological loss, for nerve 
 
         impairment of the thumb, for grasp or strength, or for pain in 
 
         the wrist or hand, but only for dorsiflexion, palmar-volar 
 
         flexion and lateral deviation.  Dr. Wilson reported that Dr. Von 
 
         Gillern had not evaluated claimant's rotation, nerve impairment, 
 
         pain or loss of strength, but did state that the Franciscan 
 
         Rehabilitation Center had used a dynamometer to measure grasp or 
 
         strength.  Dr. Wilson reported that Paul C. Cunnick, M.D., had 
 
         evaluated, but did not record rotation other than to say there 
 
         was a 25% loss of flexion, extension, rotation and lateral 
 
         motion.  He reported that Dr. Cunnick mentioned the "flaw with 
 
         the thumb," but did not give a percentage on such as deficiencies 
 
         involving the thumb did not influence the performance of 
 
         claimant's job.  Dr. Wilson agreed that Drs. Cunnick and Von 
 
         Gillern had performed their evaluations of claimant approximately 
 
         one year after his evaluation.  Dr. Wilson agreed that he is 
 
         neither an orthopaedic surgeon nor a neurologist nor a hand 
 
         specialist.  Dr. Wilson described himself as semi-retired and 
 
         stated that approximately 90% of his current practice is devoted 
 
         to evaluation for losses in workers' compensation cases.  He 
 
         reported that 90-95% of his work is for plaintiff or applicant 
 
         (apparently meaning "claimant").  The doctor agreed that, while a 
 
         difference was found on the right and left hand as to the 
 
         distance between claimant's thumb and index finger, no preinjury 
 
         measurements were available to support an assumption that those 
 
         were equal before claimant had injured his hand.
 
         
 
              In his report of September 27, 1985, Dr. Wilson reported 
 
         claimant as limited in his weight lifting, particularly with the 
 
         hand outstretched, as unable to elevate above the shoulder, as 
 
         limited in rotation and, as requiring protection of his hand 
 
         against temperature extremes.
 
         
 
              A tape-recorded telephone interview of Carl William August, 
 
         owner of Liberty Pattern Company, with Keith Winey of U S F & G 
 
         Insurance Company, substantiates claimant's statements that he 
 
         has difficulty working with large items in his current job as a 
 
         pattern maker.
 
         
 
              A June 17, 1986 report of Paul C. Cunnick, M.D., reported 
 
         that, on motion of wrist, claimant had marked limitation of 
 
         flexor, extention, rotation and lateral motion mostly due to the 
 
         fusion.  There was a 25% loss of all these functions, with 
 
         claimant unable to make a tight fist of the right hand and 
 
         fingers not reaching the palm.  He also could not touch the 
 
         fourth and fifth fingers with his thumb.  Wrist motion loss was 
 
         evaluated thusly: 40% of dorsiflexior loss with 20% retained 
 
         equaling a loss  to the extremity of six percent; 40% dorsipalmar 
 
         flexion loss with 30% retained equaling a loss to the extremity 
 
         of six percent; 10% radial deviation loss with 10% retained 
 
         equaling a loss to the extremity of two percent; 20% ulnar 
 
         deviation loss with 10% retained equaling a loss to the extremity 
 
         of four percent; the total extremity loss equals 18%.  The doctor 
 
         stated that pain in the hand would equal three percent with 
 
         weakness of the hand equaling four percent and sensation loss 
 
         three percent for each nerve totaling nine percent, giving a 
 
         total loss of 34% for the extremity.  He stated he had not 
 
         included the fact that claimant could not make a fist nor bring 
 

 
         
 
         
 
         
 
         LACKEY V. KELLER PATTERN CO.
 
         Page   5
 
         
 
         
 
         his fingers down to the palm, nor for the fact that he could not 
 
         touch his thumb to his fifth finger as one "never does anything 
 
         that requires a tight fist" and as thumb mobility is not required 
 
         in performing a job.
 
         
 
              Thomas L. Von Gillern, M.D., of Moline Orthopedic 
 
         Associates, reviewed claimant's chart including his hand 
 
         evaluation.  On March 3, 1987, he reported claimant had limited 
 
         wrist dorsiflexion of 21% equaling a rating of six percent upper 
 
         extremity impairment; limited palmar flexion of the right wrist 
 
         of 15% equaling a rating of nine percent upper extremity 
 
         impairment; limited radial deviation of four percent equaling a 
 
         rating of four percent upper extremity impairment; limited range 
 
         of ulnar deviation of 10% equaling a rating of four percent upper 
 
         extremity impairment.  He reported that limited range of motion 
 
         would therefore total 23% upper extremity impairment.  He 
 
         indicated that claimant had limited strength and pain which would 
 
         rate a combined total of 10% upper extremity impairment and that 
 
         this, with the 23%, would equal 33% upper extremity impairment.
 
         
 
              On April 2, 1984, Dr. Von Gillern reported that claimant 
 
         underwent a right median nerve lysis on May 9, 1983. operatively, 
 
         claimant was noted to have moderate flexor tenosynovitis and was 
 
         noted to have constriction of the median nerve due to the 
 
         transverse carpal ligament.  Postoperatively, claimant's symptoms 
 
         were reported as cleared and claimant was reported, as of that 
 
         date, to have complete relief of his hand pain and his numbness. 
 
          Dr. Von Gillern opined that claimant's permanent impairment as 
 
         of that date was 10% of the upper extremity, based on decreased 
 
         sensation persistent in his left median nerve distribution as 
 
         well as slight decrease in strength.
 
         
 
              B. L. Sprague, M.D., of Surgery of the Hand and Upper 
 
         Extremity, diagnosed claimant as having chronic instability due 
 
         to a ligamentous injury involving the ulnar column of the wrist 
 
         and arranged.for a limited fusion of the navicular, hamate and 
 
         triquetrium on August 28, 1984 with an iliac crest bone graft.
 
         
 
              On July 8, 1985, Dr. Sprague reported that claimant had been 
 
         able to work as a pattern maker to a limited extent, but still
 
         
 
         
 
         continued to have pain in the dorsum of the right wrist and 
 
         noticed some catching sensations.  On examination, claimant had 
 
         tenderness over the dorsal radial aspect of the wrist just radial 
 
         to the incision.  He had no swelling or reaction.  Claimant's 
 
         wrist motion was 30% of dorsiflexion, 30% of ulnar flexion, 10% 
 
         of ulnar deviation and 10%'of radial deviation.  No crepitus was 
 
         noted on rotation of the forearm or wrist and claimant had normal 
 
         sensibility involving his fingers as well as full range of motion 
 
         of the MP, PIP and DIP joints.  X-rays then taken showed solid 
 
         arthrodesis between the hamate, triquetrium and the lunate.  Some 
 
         slight narrowing was evident-between the lunate and the head of 
 
         the capitate with other carpal bones appearing to be normal and 
 
         the carpal joints appearing to be normal.  Dr. Sprague evaluated 
 
         claimant's impairment as 15% of the upper extremity under the AMA 
 
         guides, due to the lack of wrist motion.
 
         
 
              Claimant was seen at the Occupational Therapy Department of 
 

 
         
 
         
 
         
 
         LACKEY V. KELLER PATTERN CO.
 
         Page   6
 
         
 
         
 
         Rock Island Franciscan Hospital on August 14, 1986 and August 19, 
 
         1986 for evaluation of active and passive range of motion, grip 
 
         and pinch strength, two-point discrimination, gross sensation, 
 
         sweat patterns, manual muscle testing and a physical capacity 
 
         evaluation of hand and upper body function.  Claimant had 
 
         decreased discrimination acuity on the volar side of the right 
 
         hand at 4 and 5 proximally with decreased threshold limits 
 
         dorsally in 3-5.  In testing of gross sensation, on the right 
 
         upper extremity, light touch on the dorsum of 4 and 5 was 
 
         reported as numb instead of a "tickly" feeling.  Light touch was 
 
         not felt on the volar side of 4 and 5.  Pin prick was absent on 
 
         the volar side of the right little finger and along the ulnar 
 
         side of the hand with stimulus felt on the dorsal side of 4 and 
 
         5, but sharp and dull not discriminated.  Claimant had difficulty 
 
         discriminating hot and cold over the dorsum of the wrist and in 
 
         the little finger.  Ability to discriminate hot and cold was 
 
         absent in the volar side of 4 and 5.  Examination showed that 
 
         grasp and pinch strength as well as degree of both active and 
 
         passive range of Motion were noticeably decreased in claimantOs 
 
         right hand as compared to his left.
 
         
 
              On August 21, 1985, Dr. Von Gillern reported that claimant's 
 
         hand evaluation regarding his impairment was performed and that 
 
         such appeared to agree with Dr. Sprague's evaluation of 15% of 
 
         the upper extremity.
 
         
 
              Claimant submitted the following information regarding weeks 
 
         worked and compensation received immediately preceding his 
 
         February 22, 1983 injury:
 
         
 
         
 
         
 
            Work Week      Hours   Hours  Regular Hourly    Hourly 
 
         Vacation
 
            Ending Date   Worked    Off      Pay Rate      and Holiday 
 
         Rate
 
            10/01/82       32        8-V      $18.17           $2.7255
 
            10/08/82        ?                  18.17            2.7255
 
            10/15/82       40                  18.17            2.7255
 
            10/22/82       40                  18.17            2.7255
 
            10/29/82       19.75   20.25-V     18.17            2.7255
 
            11/05/82        8       32-V       18.17            2.7255
 
            11/12/82      on unemployment
 
            11/19/82      on unemployment
 
            11/26/82        0      24-V,16-H   18.17            2.7255
 
            12/03/82       40                  18.17            2.7255
 
            12/10/82       40                  18.17            2.7255
 
            12/17/82       40                  18.17            2.7255
 
            12/22/82       24       16-H       18.17            2.7255
 
            12/29/82       24       16-H       18.17            2.7255
 
            01/07/83       40                  18.17            2.7255
 
            01/14/83       32        8-H       18.17            2.7255
 
            01/21/83       45                  18.17            2.7255
 
            01/28/83       45                  18.17            2.7255
 
            02/04/83       45                  18.17            2.7255
 
            02/11/83       45                  18.17            2.7255
 
            02/18/83       45                  18.17            2.7255
 
            02/25/83       44.5                18.17            2.7255
 
         Pay stubs for various weeks were also in evidence and were 
 

 
         
 
         
 
         
 
         LACKEY V. KELLER PATTERN CO.
 
         Page   7
 
         
 
         
 
         reviewed.
 
         
 
              Claimant submitted the following information regarding weeks 
 
         worked and compensation received immediately preceding his May 
 
         30, 1984 injury:
 
         
 
            Work Week     Hours  Hours  Regular Hourly   Hourly Vacation
 
            Ending Date  Worked   Off      Pay Rate      and Holiday Rate
 
            02/03/84      41.75             $18.54            $2.781
 
            02/10/84      40.5               18.54             2.781
 
            02/17/84      40                 18.54             2.781
 
            02/24/84      40                 18.54             2.781
 
            03/02/84      37     3 jury      18.54             2.781
 
            03/09/84      41.75              18.54             2.781
 
            03/16/84      40                 18.54             2.781
 
            03/23/84      40.25              18.54             2.781
 
            03/30/84      40                 18.54             2.781
 
            04/06/84      40                 18.61             2.7915
 
            04/13/84      40                 18.61             2.7915
 
            04/20/84      28.5    12-H       18.61             2.7915
 
            04/27/84      45                 18.61             2.7915
 
            05/04/84      18     8-S,16-V    18.81             2.8215
 
            05/11/84      43.75              18.81             2.8215
 
            05/18/84      40                 18.81             2.8215
 
            05/25/84      32.25   8-H        18.81             2.8215
 
            06/01/84      32.75   8-H        18.81             2.8215
 
         
 
         Pay stubs for various weeks were also in evidence.  On many of 
 

 
         
 
         
 
         
 
         LACKEY V. KELLER PATTERN CO.
 
         Page   8
 
         
 
         
 
         these, gross weekly wages were indiscernible.
 
         
 
              The Job Shop Agreement of May 1, 1980 to May 1, 1983 between 
 
         the Pattern Makers' League of North America and Quad Cities Area 
 
         Job Shops provides that holiday pay shall be computed at five 
 
         percent of the straight time hourly rate times the number of 
 
         hours worked each week and that holiday pay shall be paid 
 
         together with regular pay each week.  The agreement provides 
 
         that, effective May 1, 1981, all employees shall be entitled to 
 
         and receive vacation pay in the amount of 10% of the straight 
 
         time hourly rate times the number of hours worked each week, 
 
         which pay is to be paid together with regular pay each week.  
 
         Employees are required to and must take vacation time off 
 
         equivalent to vacation pay earned during the year.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The first issue to be decided is the nature and extent of 
 
         claimant's benefit entitlement.  As noted above, the parties have 
 
         stipulated that claimant's injuries are such that his permanent 
 
         disability is a scheduled member disability to the right arm.  We 
 
         note also that the parties have stipulated that a causal 
 
         connection exists between claimant's injuries and his claimed 
 
         disability.  In this regard, a report of Robert J. Chesser, M.D., 
 
         expresses the belief that claimant's carpal tunnel syndrome and 
 
         ensuing surgery would not have resulted from the work incident of 
 
         February 22, 1983.  The record as a whole, including claimant's 
 
         described work activities, does support the parties' stipulation 
 
         that there was a relationship between claimant's work and his 
 
         need for carpal tunnel release surgery, however.  The record also 
 
         contains substantial material related to claimant's current job 
 
         activities and changes in his ability to perform his job 
 
         subsequent to his work injuries.  This is, of course, of limited 
 
         relevance since the legislature has mandated that loss of use of 
 
         scheduled members may only be compensated according to the 
 
         statutory scheme and not industrially.
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936) .
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
               A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by the 
 
         industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 

 
         
 
         
 
         
 
         LACKEY V. KELLER PATTERN CO.
 
         Page   9
 
         
 
         
 
         injuries were fresh; the arrangement as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony may be considered.  Both parties may bring all this 
 
         information to the attention of the factfinder as either 
 
         supporting or weakening the physician's testimony and opinion.  
 
         All factors go to the value of the physician's testimony as a 
 
         matter of fact not as a matter of law.  Rockwell Graphic Systems, 
 
         Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
              Compensation for loss of an arm or loss of use of an arm 
 
         shall be weekly compensation during 250 weeks or for such length 
 
         of time as is proportionate to the percentage loss of use.  
 
         Section 85.34(2)(m) and section 85.34(2)(u).
 
         
 
              Claimant's initial surgery consisted of a right medial nerve 
 
         lysis performed May 9, 1983.  Such followed his first injury.  
 
         Claimant's second surgery, following his injury of May 30, 1984 
 
         and performed August 28, 1984, was limited fusion of the 
 
         navicular, hamate and triquetrium with iliac crest bone graft.  
 
         We have little information regarding claimant's hand impairment 
 
         following his first surgery.  Dr. Von Gillern, who performed that 
 
         surgery, did opine on April 2, 1984 that claimant had a 10% 
 
         permanent partial impairment of the upper extremity.  As that 
 
         date was subsequent to the first injury and surgery and prior to 
 
         the second injury and surgery, that impairment assignation is 
 
         accepted as claimant's permanent partial impairment related to 
 
         his first injury and surgery.  That percentage will be 
 
         apportioned out for payment related to the first injury from any 
 
         total amount of permanent partial impairment to claimant's hand 
 
         that is determined.  The fighting issue remains the extent of 
 
         claimant's total disability to his right hand, given the various 
 
         opinions of medical practitioners.
 
         
 
              F. Dale Wilson, M.D., evaluated claimant once after 
 
         reviewing charts relative to claimant.  That examination overall 
 
         totaled approximately 2 1/2 hours.  Dr. Wilson stated that he had 
 
         arrived at a permanent partial impairment of either 47% or 53% of 
 
         claimant's right upper extremity, depending upon whether one 
 
         chose to combine as instructed in the AMA guides or to add 
 
         different elements of impairment.  Dr. Wilson also testified as 
 
         to what he believed were deficiencies in the evaluation methods 
 
         utilized by other physicians.  Dr. Wilson is apparently a general 
 
         surgeon.  He acknowledged that he is neither a hand specialist 
 
         nor an orthopaedic surgeon nor a neurologist.  He further 
 
         acknowledged that his current practice is largely limited to 
 
         evaluations and 90-95% of those are done for claimants and 
 
         applicants.  Dr. Wilson was not claimant's treating physician and 
 
         performed his evaluation substantially earlier in time than did 
 
         either Dr. Cunnick or Dr. Von Gillern.
 
         
 
              Paul C. Cunnick, M.D., apparently evaluated claimant and, on 
 
         June 17, 1986, opined that claimant had a 34% impairment of the 
 
         upper extremity.  The record does not suggest that Dr. Cunnick 
 
         ever treated claimant.  Likewise, the doctor's specialty, if any, 
 
         is not apparent on the record.
 
         
 
              Thomas L. Von Gillern, M.D., has been claimant's primary 
 

 
         
 
         
 
         
 
         LACKEY V. KELLER PATTERN CO.
 
         Page  10
 
         
 
         
 
         treating physician from his first injury onward and performed the 
 
         first surgery.  The doctor's practice is apparently limited to 
 
         orthopaedics, although it cannot be determined from the record 
 
         whether he is a board-certified orthopaedic physician.  On August 
 
         21, 1985, Dr. Von Gillern reported his agreement with Dr. 
 
         Sprague's evaluation of a 15% impairment of claimant's upper 
 
         extremity.  On March 3, 1987, however, Dr. Von Gillern wrote an 
 
         extensive report overviewing claimant's limitations as he viewed 
 
         them through evaluation, apparently at the Franciscan 
 
         Rehabilitation Center, and opined that claimant then had a 33% 
 
         impairment of the upper extremity.
 
         
 
              Bruce L. Sprague, M.D., is identified as a hand and upper 
 
         extremities surgeon, although it is not revealed on the record 
 
         whether he is board-certified.  Dr. Sprague was claimant's 
 
         surgeon for his second surgery and, following evaluation, found 
 
         that claimant had a permanent impairment of 15% of the upper 
 
         extremity as of July 8, 1985.
 
         
 
              While all physicians who examined and evaluated claimant 
 
         appear to be competent practitioners, we accept the most recent 
 
         evaluation of Dr. Von Gillern as presenting the best evidence of 
 
         claimant's residual loss of use of his right hand.  Dr. Von 
 
         Gi-llern is an orthopaedic practitioner and has had the most 
 
         extensive and long-term contact with claimant.  While Dr. Wilson 
 
         testified at hearing that a treating practitioner's evaluation 
 
         may be biased by the need to find efficacious treatment results, 
 
         our general experience has been that the advantage gained by the 
 
         treating practitioner's more extensive experience with the 
 
         claimant's overall condition far outweighs any subjective need on 
 
         the part of the practitioner to favorably color the results of 
 
         the practitioner's own work.  Furthermore, Dr. Von Gillern's 
 
         impairment assignation of March 3, 1987 is most recent in time 
 
         and, therefore, best reflects claimant's current impairment. (We 
 
         acknowledge that Dr. Sprague, a hand specialist, performed 
 
         claimant's second surgery and also evaluated claimant.  We 
 
         believe Dr. Von Gillern's longer involvement with claimant's 
 
         overall condition and his more recent assessment of claimant 
 
         makes his assignation of claimant more meaningful than that of 
 
         Dr. Sprague.  Furthermore, Dr. Von Gillern's assignation is more 
 
         in keeping with those of claimant's other two evaluators, namely 
 
         Drs. Cunnick and Wilson.)
 
         
 
              As noted above, claimant's total upper extremity disability 
 
         will be apportioned between his first and second injuries with 
 
         10% permanent disability apportioned to the first injury and 23% 
 
         apportioned to the second injury.  Ten percent of 250 weeks 
 
         equals 25 weeks.  Defendants shall pay claimant 25-weeks of 
 
         permanent partial disability benefits on account of the February 
 
         22, 1983 injury, with those payments to commence on June 23, 
 
         1983.  Twenty-three percent of 250 weeks is 57.5 weeks.  
 
         Defendants shall pay claimant 57.5 weeks of permanent partial 
 
         disability benefits on account of his May 30, 1984 injury, with 
 
         those payments commencing on January 7, 1985.
 
         
 
              Our remaining issue is claimant's rate of weekly 
 
         compensation.  As noted, claimant is married and entitled to 
 
         three exemptions.
 
         
 

 
         
 
         
 
         
 
         LACKEY V. KELLER PATTERN CO.
 
         Page  11
 
         
 
         
 
              Section 85.36 provides that the basis of compensation is the 
 
         weekly earnings of the injured employee at the time of the 
 
         injury.  The section defines weekly earnings as the gross salary, 
 
         wages, or earnings of an employee to which the employee would 
 
         have been entitled had the employee worked the customary hours 
 
         for the full pay period in which the employee was injured, as 
 
         regularly required by the employee's employer for the work or 
 
         employment for which the employee was employed, computed or 
 
         determined under the schedule and then rounded to the nearest 
 
         dollar.  Under the schedule, section 85.36(6) provides that, in 
 
         the case of an employee paid on an hourly basis, the weekly 
 
         earnings shall be computed by dividing by 13 the earnings, not 
 
         including overtime or premium pay, the employee earned in the 
 
         employ of the employer during the last completed period of 13 
 
         consecutive calendar weeks immediately preceding the injury.
 
         
 
              The workers' compensation law is for the benefit of the 
 
         worker and should be liberally construed. Irish v. McCreary Saw 
 
         Mill, 175 N.W.2d 364 (Iowa 1970).
 
         
 
              Webster's Ninth New Collegiate Dictionary defines wages as a 
 
         payment usually of money for labor or services usually according 
 
         to contract on an hourly, daily or piecework basis.  The shop 
 
         agreement under which claimant worked from May 1, 1980 to May 1, 
 
         1983 provided that, as of May 1, 1981, all employees were 
 
         entitled to and received vacation pay in the amount of 10% of the 
 
         straight time hourly rate times the number of hours worked each 
 
         week, which 
 
         
 
         was to be paid together with regular pay each week.  Holiday pay 
 
         was to be computed at five percent of the straight time hourly 
 
         rate times the number of hours worked each week.  Holiday pay 
 
         also was to be paid with regular pay each week.  While the shop 
 
         agreement effective after May 1, 1983 was not introduced into 
 
         evidence, claimant's testimony as regards his compensation would 
 
         suggest that similar vacation and holiday pay agreements were in 
 
         effect at the time of the second injury on May 30, 1984.  By 
 
         contract, claimant's vacation and holiday pay was part of his 
 
         gross wage each week.  The vacation and holiday pay were not 
 
         overtime pay and were not premium pay, both of which are excluded 
 
         from gross wages under section 85.36.  Likewise, while the 
 
         vacation pay might be construed as an employer contribution to a 
 
         benefit plan which would not be considered in determining gross 
 
         salary, wages or earnings, that term is colloquially meant to 
 
         include benefits other than a vacation or holiday pay rate for 
 
         which the worker is directly compensated.  Hence, when the law is 
 
         construed in favor of the injured worker, claimant's vacation and 
 
         holiday pay, received as part of claimant's overall weekly 
 
         earnings, must be considered part of the basis of computation of 
 
         claimant's weekly compensation rate.
 
         
 
              Lawyer and Higgs, Iowa Workers' Compensation -- Law and 
 
         Practice, section 12-4, unnumbered paragraph 2, provides:
 
         
 
              It is not uncommon in determining the rate under section 
 
              85.36(6) for a non-salaried employee to find that there are 
 
              weeks within the thirteen consecutive weeks prior to the 
 
              injury that contain absences due to illness, vacation or 
 
              other causes.  Since the worker often does not get paid 
 

 
         
 
         
 
         
 
         LACKEY V. KELLER PATTERN CO.
 
         Page  12
 
         
 
         
 
              unless he works, these weeks are not representative of his 
 
              earnings.  The agency has consistently ruled that these 
 
              weeks are not included in the thirteen weeks for determining 
 
              the rate under Iowa Code section 85.36(6).  Instead, the 
 
              "short" weeks are skipped and additional weeks are included 
 
              until thirteen completed consecutive weeks are accumulated 
 
              for the calculation.  The rationale for this method of 
 
              determining the weekly earnings is based on the mandate of 
 
              the first unnumbered paragraph of Iowa Code section 85.36 
 
              which requires a determination of earnings to which an 
 
              employee "would have been entitled had he worked the 
 
              customary hours for the full pay period in which he was 
 
              injured..."
 
         
 
              Under the above reasoning, weeks in which claimant worked 
 
         less than his regular work hours, which hours are presumed to be 
 
         at least 40 per week, and in which he received either vacation 
 
         pay, holiday pay, sick leave pay or unemployment benefits, would 
 
         be skipped in finding the 13 weeks to be considered in 
 
         calculating his rate of weekly compensation.  Joint exhibit 15 
 
         does not include 13 full work weeks and, hence, cannot be 
 
         properly used to calculate claimant's rate of weekly compensation 
 
         regarding his February 22, 1983 injury.  We note also that there 
 
         is no evidence on the record as submitted as to whether claimant 
 
         would have received overtime pay for those weeks in which he 
 
         worked greater than 40 hours.  Any overtime pay would not be 
 
         included in the rate calculation, however.  Under the record as 
 
         submitted, our best calculation of claimant's rate regarding the 
 

 
         
 
         
 
         
 
         LACKEY V. KELLER PATTERN CO.
 
         Page  13
 
         
 
         
 
         February 22, 1983 injury is as follows:
 
         
 
               45 + 45 + 45 + 45 + 45 + 40 + 40 + 40 + 40 + 40 + 40
 
                 [+ 40 + 40] = 545 X $20.8955 [18.17 + 2.7255] =
 
                                 $11,388.05 divided by 13 =
 
                               $876 weekly earnings
 
         
 
              Under the benefit schedule in effect on February 22, 1983, 
 
         weekly earnings of $876 result in a weekly compensation rate of 
 
         $463.41 for a married individual entitled to three exemptions.  
 
         The above calculation assumes that claimant worked two 40-hour 
 
         weeks not reflected in the evidence submitted, but which should 
 
         rightly be calculated in arriving at claimant's weekly 
 
         compensation rate.  The above calculation excluded all weeks in 
 
         evidence during which claimant did not actually work a complete 
 
         work week, that is, weeks in which claimant's gross wages 
 
         included non-work pay.
 
         
 
              Claimant's weekly compensation rate for the May 30, 1984 
 
         injury was calculated as follows:
 
         
 
               [41.75 + 40.5 + 40 + 40 + 41.75 + 40 + 40.25 + 40 =
 
                324.25 X $21.321 (18.54 + 2.781) = $6,913.33] plus
 
         
 
                [40 + 40 + 45 = 125 X $21.4015 (18.61 + 2.7915) =
 
                                $2,675.1875] plus
 
         
 
                [43.75 + 40 = 83.75 X $21.6315 (18.81 + 2.8215) =
 
                            $1,811.6381] which equals
 
         
 
                    $11,400.155(.16) divided by 13 = $876.935
 
                              ($877) weekly earnings
 
         
 
              Under the applicable benefit schedule, an individual with 
 
         weekly earnings rounded to $877 and married with three exemptions 
 
         would be entitled to a weekly compensation rate of  $478.05. 
 
         Again, the above calculation excluded all weeks in evidence 
 
         during which claimant did not actually work a complete work week, 
 
         that is, weeks in which claimant's gross wages included non-work 
 
         pay.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant received an injury to his right upper extremity on 
 
         February 22, 1983 arising out of and in.the course of his 
 
         employment.
 
         
 
              Claimant subsequently underwent a right medial nerve lysis 
 
         on May 9, 1983 with release of transverse carpal ligament.
 
         
 
              Claimant sustained an injury to his right upper extremity on 
 
         May 30, 1984, which injury arose out of and in the course of his 
 
         employment.
 
         
 
              On August 28, 1984, B. L. Sprague, M.D., performed limited 
 
         fusion of the navicular, hamate and triquetrium with iliac crest 
 
         bone graft.
 

 
         
 
         
 
         
 
         LACKEY V. KELLER PATTERN CO.
 
         Page  14
 
         
 
         
 
         
 
              Dr. Von Gillern primarily treated claimant relative to both 
 
         the 1983 and 1984 injuries.
 
         
 
              Dr. Von Gillern is a physician whose practice is limited to 
 
         orthopaedics.
 
         
 
              Dr. Sprague is a physician who is a specialist in hand and 
 
         upper extremity.
 
         
 
              Paul C. Cunnick, M.D., evaluated claimant on June 17, 1986.
 
         
 
              Dr. Cunnick's medical area of specialization, if any, is 
 
         unknown.
 
         
 
              Dr. Cunnick was apparently an evaluator only and not a 
 
         treating physician.
 
         
 
              F. Dale Wilson, M.D., evaluated claimant in 1985 and issued 
 
         a report on September 27, 1985.
 
         
 
              Dr. Wilson was an evaluating physician only.
 
         
 
              Dr. Wilson is apparently a general surgeon.
 
         
 
              On April 2, 1984, Dr. Von Gillern opined that claimant had a 
 
         10% permanent partial impairment of his upper extremity.
 
         
 
              On August 21, 1985, Dr. Von Gillern opined that claimant's 
 
         findings were consistent with a 15% permanent partial impairment 
 
         rating to the upper extremity, which Dr. Sprague had assigned on 
 
         July 8, 1985.
 
         
 
              On March 3, 1987, Dr. Von Gillern issued a report 
 
         extensively reviewing claimant's physical findings and opined 
 
         that claimant's permanent partial impairment rating was 33% of 
 
         the upper extremity.
 
         
 
              Dr. Von Gillern's rating of 33% upper extremity permanent 
 
         partial impairment is most recent in time of the impairment 
 
         ratings claimant has received.
 
         
 
              Dr.Von Gillern's rating is generally consistent with ratings 
 
         of Drs. Cunnick and Wilson.
 
         
 
              Dr. Von Gillern's April 2, 1984 assignation of a permanent 
 
         partial impairment of 10% of the upper extremity was subsequent 
 
         to claimant's February 22, 1983 injury, but prior to claimant's 
 
         May 30, 1984 injury.
 
         
 
              Claimant's vacation and holiday pay is a contractually 
 
         agreed-to portion of his weekly wages and is not premium or 
 
         overtime pay or a benefit to which his employer contributes.
 
         
 
              Claimant's weekly earnings for the 13 full weeks immediately 
 
         preceding his February 22, 1983 injury, as can be ascertained 
 
         from the evidence available, average $876.00.
 
         
 
              Claimant's weekly earnings for the 13 full weeks immediately 
 

 
         
 
         
 
         
 
         LACKEY V. KELLER PATTERN CO.
 
         Page  15
 
         
 
         
 
         preceding his May 30, 1984 injury, as can be ascertained from the 
 
         evidence available and rounded to the nearest dollar, average 
 
         $877.00.
 
         
 
              Claimant is married and is entitled to three exemptions.
 
         
 
              Claimant's rate of weekly compensation for the 1983 injury 
 
         is $463.41.
 
         
 
              Claimant's rate of weekly compensation for the 1984 injury 
 
         is $478.05.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from his injury of February 22, 1983 of 10% of the 
 
         right arm.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from his injury of May 30, 1984 of 23% of the right 
 
         arm.
 
         
 
              Claimant's rate of weekly compensation for his injury of 
 
         February 22, 1983 is $463.41.
 
         
 
              Claimant's rate of weekly compensation for his injury of May 
 
         30, 1984 is $478.05.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant permanent partial disability 
 
         benefits for twenty-five (25) weeks at the rate of four hundred 
 
         sixth-three and 41/100 dollars ($463.41) on account.of his injury 
 
         of February 22, 1983 with those payments to commence on June 6, 
 
         1983.  Defendants receive credit for benefits previously paid at 
 
         the incorrect rate, with additional payment to equal the correct 
 
         rate to be made.
 
         
 
              Defendants pay claimant permanent partial disability 
 
         benefits for fifty-seven point five (57.5) weeks at the rate of 
 
         four hundred seventy-eight and 05/100 dollars ($478.05) on 
 
         account of his May 30, 1984 injury with those payments to 
 
         commence on January 7, 1985.  Defendants receive credit for 
 
         benefits previously paid at the incorrect rate, with additional 
 
         payment to equal the correct rate to be made.
 
         
 
              Defendants pay claimant four (4) weeks of healing period at 
 
         the rate of four hundred sixty-three and 41/100 dollars ($463.41) 
 
         per week on account of his February 22, 1983 injury.  Defendants 
 
         receive credit for benefits previously paid at the incorrect 
 
         rate, with additional payment to equal the correct rate to be 
 
         paid.
 
         
 
              Defendants pay claimant thirty point four two nine (30.429) 
 

 
         
 
         
 
         
 
         LACKEY V. KELLER PATTERN CO.
 
         Page  16
 
         
 
         
 
         weeks of healing period benefits at the rate of four hundred 
 
         seventy-eight and 05/100 dollars ($478.05) on account of his May 
 
         30, 1984 injury.  Defendants receive credit for benefits 
 
         previously paid at the incorrect rate, with additional payment to 
 
         equal the correct rate to be paid.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to Iowa Code section 85.30 
 
         as amended.
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Defendants file a Final Payment Report when this award is 
 
         paid.
 
         
 
              Signed and filed this 28th day of January, 1988.
 
         
 
         
 
         
 
         
 
                                           HELEN JEAN WALLESER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harold C. Lounsberry
 
         Attorney at Law
 
         702 Putnam Building
 
         Davenport, Iowa 52801
 
         
 
         Ms. Patricia Rhodes Cepican
 
         Attorney at Law
 
         3432 Jersey Ridge Road
 
         P.O. Box 2239
 
         Davenport, Iowa 52807
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1803, 1806
 
                                                     Filed January 28, 1988
 
                                                     HELEN JEAN WALLESER
 
         
 
         
 
         JAMES W. LACKEY,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                     File  Nos. 744035
 
         KELLER PATTERN CO.,                                    795344
 
         
 
              Employer,                            A R B I T R A T I 0 N
 
         
 
         and                                           D E C I S I 0 N
 
         
 
         UNITED STATES FIDELITY &
 
         GUARANTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803, 1806
 
         
 
              Claimant sustained two separate injuries to his right hand. 
 
          Dispute was as to which of four medically assigned permanent 
 
         partial impairment ratings should be accepted as a scheduled 
 
         member disability rating.  Disability rating of the primary 
 
         treating physician was accepted over that of two examining 
 
         physicians and claimant's surgeon for his second of two required 
 
         surgeries.  Primary treating physician had assigned a 10% 
 
         disability subsequent to the first injury, but prior to the 
 
         second injury.  Claimant's scheduled member disability for the 
 
         first injury was held to be that assigned by the treating 
 
         physician subsequent to the first and prior to the second 
 
         injury.