before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            WILLIAM E. NESBIT, SR.,    :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :        File No. 761994
 
            MUSCATINE POWER & WATER,   :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            U S F & G,       :
 
                        :
 
                 Insurance Carrier,    :
 
                 Defendants.      :
 
            ____________________________________________________________
 
            _____
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed March 20, 1991 is affirmed and is adopted as the final 
 
            agency action in this case.
 
            Claimant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. David W. Newell
 
            Attorney at Law
 
            323 East Second St.
 
            Muscatine, Iowa 52761
 
            
 
            Mr. John E. Wunder
 
            Attorney at Law
 
            210 Cedar Street
 
            Muscatine, Iowa 52761
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1108.20; 1402.30; 2206
 
            Filed February 26, 1993
 
            Byron K. Orton
 
            MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                        :
 
            WILLIAM E. NESBIT, SR.,    :
 
                        :
 
                 Claimant,   :
 
                        :
 
            vs.         :
 
                        :        File No. 761994
 
            MUSCATINE POWER & WATER,   :
 
                        :          A P P E A L
 
                 Employer,   :
 
                        :        D E C I S I O N
 
            and         :
 
                        :
 
            U S F & G,       :
 
                        :
 
                 Insurance Carrier,    :
 
                 Defendants.      :
 
            ____________________________________________________________
 
            _____
 
            
 
            1108.20; 1402.30; 2206
 
            Claimant, who had a history of prior psychiatric problems, 
 
            failed to prove that a relative minor injury that occurred 
 
            in March proximately caused psychological disability which 
 
            became evidenced in October and worsened thereafter.  He had 
 
            resumed work and worked without problems for approximately 
 
            four months between the time he recovered from the injury 
 
            and the onset of his disability.  The theory of closed head 
 
            trauma which was propounded by the claimant was rejected.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            WILLIAM E. NESBIT, SR.,       :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :         File No. 761994
 
                                          :
 
            MUSCATINE POWER & WATER,      :      A R B I T R A T I O N
 
                                          :
 
                 Employer,                :         D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            USF&G,                        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by William 
 
            E. Nesbit, Sr., against Muscatine Power & Water and 
 
            U S F & G, the employer's insurance carrier.  Claimant seeks 
 
            compensation for permanent disability and to recover medical 
 
            expenses.  The primary issues to be determined are whether 
 
            the claimant sustained an injury which arose out of and in 
 
            the course of his employment on or about March 13, 1984 and 
 
            determination of whether any such alleged injury is a 
 
            proximate cause of the disability which current afflicts the 
 
            claimant and of the medical expenses which the claimant has 
 
            incurred.
 
            
 
                 The case was heard on November 27, 1990 at Tipton, 
 
            Iowa.  The evidence consists of testimony from Emma J. 
 
            Nesbit, Michael Johannsen, Laura Porter, William E. Nesbit, 
 
            Sr., Mel Gross and Daniel Olson.  The record also contains 
 
            jointly offered exhibits 1 through 26, claimant's exhibits 
 
            2, 3 and 6, and defendants' exhibits 1, 2, 4 and 6.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 William E. Nesbit, Sr., the claimant, is a 36-year-old 
 
            man who is presently totally disabled as a result of his 
 
            mental state.
 
            
 
                 William has a history of mental problems dating back to 
 
            1977.  He continued to express subjective complaints well 
 
            beyond the period of time which was medically indicated for 
 
            recovery after being struck by a piece of equipment which 
 
            fell while he was at work (joint exhibits 22 and 23).  He 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            was hospitalized and then diagnosed as having a depressive 
 
            disorder, traumatic neurosis, phobia--fear of another 
 
            accident, and psychosomatic pain production (joint exhibit 
 
            3, pages 5-8; joint exhibit 19, pages 10-12).  It was 
 
            indicated that the phobia may be a permanent condition 
 
            (joint exhibit 3, pages 12, 13 and 17).
 
            
 
                 In early November 1981, William was involved in a motor 
 
            vehicle accident.  Following that accident, he again 
 
            experienced psychiatric problems for which he sought 
 
            treatment.  That treatment continued through March 2, 1984, 
 
            the last date that he was seen by his treating psychiatrist.  
 
            The diagnosis at the time was unchanged (joint exhibit 17, 
 
            page 12).  It is noted that the progress notes show that at 
 
            the time of the last visit on March 2, 1984, further office 
 
            visits were anticipated as the last sentence reads, "He was 
 
            told to continue on the 1/2 Lopressor until evaluated again 
 
            next month."  (Joint exhibit 17, page 13)  The cessation of 
 
            treatment was apparently contrary to medical advice.
 
            
 
                 On March 13, 1984, William slipped and fell at work, 
 
            striking a pipe with the front of his hard hat as he fell.  
 
            After treating conservatively with a general practitioner 
 
            for approximately three weeks, he was referred to 
 
            orthopaedic surgeon David C. Naden, M.D.  The diagnosis 
 
            which was made was acute hyperextension injury of the 
 
            cervical spine with a probable avulsion-type fracture on the 
 
            anterior-inferior aspect of his C-5 vertebra.  Claimant made 
 
            slow progress, but was eventually released to return to work 
 
            effective June 4, 1984.  The progress notes indicate that 
 
            claimant felt good at that time.  The surgeon's final report 
 
            indicates that claimant could do the same work as he 
 
            performed prior to the injury and that there was no 
 
            permanent disability (exhibits 20 and 21).  It is noted in 
 
            the records that the only complaints of headache are found 
 
            in the March 13, 1984 notes from Dr. Klein.  The only 
 
            complaints in the subsequent records are of neck pain.
 
            
 
                 Upon being released to return to work, William resumed 
 
            employment with the employer performing his regular job.  
 
            According to human resources manager Daniel Olson and 
 
            general maintenance foreman Mel Gross, there was no problem 
 
            with William's work performance, but he did have an 
 
            attendance problem.  It was noted that William had an 
 
            attendance problem in 1983 as well.  Joint exhibit 25 
 
            indicates that on June 25, 1984 William was given a written 
 
            warning concerning his lack of attendance and failing to 
 
            call in prior to the starting time for his work shift (joint 
 
            exhibit 25, page 40).  William then apparently continued for 
 
            three and one-half months to appear for work promptly as 
 
            scheduled until October 15, 1984 when he again called in 
 
            sick.  On October 25, 1984, an additional written warning 
 
            was given making reference to the fact that William had not 
 
            attended work from October 15 through October 24, 1984 
 
            (joint exhibit 25, page 42).  It is noted that William did 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            have a written doctor's excuse for that period of absence 
 
            (exhibit 25, page 44).  William then again began missing 
 
            work from October 31 through November 7, 1984.  He failed to 
 
            respond to telephone calls and also to a registered letter.  
 
            On November 7, 1984, his employment was terminated (exhibit 
 
            25, pages 44 and 45).
 
            
 
                 Commencing at a time approximately consistent with the 
 
            termination of employment, William engaged in chronic 
 
            alcoholism with multiple hospitalizations for treatment 
 
            (joint exhibits 12, 13 and 15).  He has continued to 
 
            experience severe mental problems.  He is currently unable 
 
            to manage his own finances and personal affairs.
 
            
 
                 William has been extensively tested and evaluated.  
 
            Neuropsychologist Frank S. Gersh, Ph.D., evaluated William 
 
            on September 21, 1988.  He expressed the opinion that 
 
            William had suffered brain damage in the incident in which 
 
            he fell at work on March 13, 1984; that William has a 
 
            depressive syndrome which is related to that brain damage; 
 
            that William developed alcohol abuse due to the injury; and, 
 
            that William has symptoms consistent with a seizure disorder 
 
            (joint exhibit 1, page 15).  Gersh indicated that his 
 
            opinion was based upon a history of symptoms, behavior and 
 
            psychological tests and that an important part is that 
 
            William's condition went downhill dramatically after the 
 
            March 13, 1984 injury in a manner which is consistent with 
 
            individuals who have experienced a head injury (joint 
 
            exhibit 1, page 18).  Gersh also explained that following a 
 
            closed head injury of the type he believed William suffered, 
 
            symptoms are present within a few days (joint exhibit 1, 
 
            pages 56 and 57).  Gersh also indicated that significant 
 
            alcohol-induced brain damage is commonly seen when the level 
 
            of consumption is equivalent to a fifth of liquor daily and 
 
            is combined with poor nutrition (joint exhibit 1, pages 
 
            71-73).
 
            
 
                 William was also evaluated by W. H. Verduyn, M.D., on 
 
            two occasions, September 2 and September 21, 1988.  Dr. 
 
            Verduyn expressed the opinion that William suffered a 
 
            traumatic brain injury on March 13, 1984 which caused 
 
            post-traumatic headaches and cognitive and behavioral 
 
            changes (joint exhibit 2, page 22).  Dr. Verduyn felt that 
 
            claimant was depressed due to the head trauma, its 
 
            consequences and the history of prior depressive episodes 
 
            (joint exhibit 2, pages 25 and 26).  The history on which 
 
            Dr. Verduyn relied included that claimant fell forward and 
 
            hit his head on a pipe, that his helmet came off and he then 
 
            hit his head on a cement floor (joint exhibit 2, page 29).  
 
            The history was also that claimant's behavior suddenly 
 
            changed following the March 13, 1984 injury (joint exhibit 
 
            2, pages 9 and 31).
 
            
 
                 Claimant has also been evaluated by James A. Fish, 
 
            Ph.D., a neuropsychologist.  Fish found claimant to be 
 
            functioning at the borderline level of intelligence and to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            be depressed, but that the results were not suggestive of 
 
            cognitive impairment due to a head injury (joint exhibit 7).  
 
            Fish subsequently indicated that the most likely cause of 
 
            claimant's mental deficits is alcoholism and that claimant's 
 
            psychiatric history is that of an individual who is 
 
            susceptible to depressive episodes (defendants' exhibit 1).
 
            
 
                 William was evaluated by neurosurgeon Thomas A. 
 
            Carlstrom, M.D.  Dr. Carlstrom expressed the opinion that 
 
            the March 13, 1984 injury is not a source of the impairment 
 
            which afflicts William.  In making his assessment, he relied 
 
            upon a history which included that claimant functioned well 
 
            after returning to work until the employment was terminated.  
 
            Dr. Carlstrom felt that claimant has severe alcoholic 
 
            encephalopathy (joint exhibit 8).  Dr. Carlstrom 
 
            subsequently reported that William does not have a seizure 
 
            disorder and that such a condition would not be related to a 
 
            mild head injury.  Dr. Carlstrom again stated that 
 
            claimant's problems are more likely related to the history 
 
            of alcoholism, prior head injuries and a preexisting 
 
            psychiatric disorder (defendants' exhibit 2).
 
            
 
                 William was evaluated by neurologist Joseph M. Doro, 
 
            D.O., who conducted an MRI test of claimant's brain and an 
 
            EEG test, both of which were normal.  Dr. Doro expressed the 
 
            opinion that claimant's problems are not related to the head 
 
            injury he sustained in 1984 (joint exhibit 9).
 
            
 
                 William was evaluated by Eugene Collins, M.D., who 
 
            found the cause of claimant's current behavior as being 
 
            uncertain.  He characterized the behavior as being "bizarre" 
 
            and stated that the symptoms are not typical for pure closed 
 
            head injury or for a psychiatric problem or a combination of 
 
            both (joint exhibit 10).
 
            
 
                 William was also evaluated at the University of Iowa 
 
            Hospitals.  It is noted that the history in the admission 
 
            records is inaccurate in several respects.  In particular, 
 
            it does not mention any of the pre-1984 psychiatric 
 
            problems.  The discharge diagnosis was that claimant had 
 
            organic personality syndrome, possibly secondary to head 
 
            injury or alcohol abuse (joint exhibit 11, page 11).  
 
            William had been hospitalized at the University of Iowa in 
 
            June of 1985 with a major depressive disorder (joint exhibit 
 
            14).
 
            
 
                 At points in the records dealing with alcoholism 
 
            treatment, claimant relates a history of alcohol consumption 
 
            at a level consistent with that which Dr. Gersh indicated 
 
            could cause mental impairment.
 
            
 
                 It is found that William E. Nesbit, Sr., did not 
 
            sustain any substantial head injury when he fell on March 
 
            13, 1984.  To the contrary, he recovered, resumed employment 
 
            and performed the duties of his employment as he had prior 
 
            to March 13, 1984 until experiencing some unexplained 
 
            aggravation of his underlying psychiatric problems in 
 
            October 1984.  There is no documentary evidence which 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            supports the testimony in the record which is to the effect 
 
            that March 13, 1984 marked the onset of continuing 
 
            headaches, behavioral changes and other problems.  The 
 
            extended period of recovery from the March 13, 1984 injury, 
 
            as reflected in Dr. Naden's notes, is likely a result of 
 
            that injury having temporarily aggravated William's 
 
            preexisting psychological disorder.  At several points in 
 
            the record, claimant is noted to have a dependent 
 
            personality and that he likely experiences secondary gain 
 
            from the attention he receives when he voices physical 
 
            complaints.  The same situation occurred following the 1981 
 
            automobile accident and the 1977 work-place injury.
 
            
 
                 The record in this case fails to show the continuation 
 
            of symptoms between the return to work in June and the 
 
            absences from work which commenced in October 1984.  For 
 
            these reasons, the assessment of the case made by Drs. 
 
            Carlstrom, Doro and Fish are accepted as being correct 
 
            rather than the assessments from Drs. Verduyn and Gersh.  It 
 
            is found that the evidence in this case does not show it to 
 
            be probable that the March 13, 1984 injury which William 
 
            Nesbit sustained at his place of employment was a 
 
            substantial factor in producing the disability which 
 
            currently afflicts him.
 
            
 
                                conclusions of law
 
            
 
                 William Nesbit has proven, by a preponderance of the 
 
            evidence, that he sustained an injury which arose out of and 
 
            in the course of his employment with Muscatine Power & Water 
 
            when he slipped and fell on March 13, 1984.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 13, 
 
            1984 is 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 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  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.2d 756, 760-61 (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, 815 (1962).  For a cause to be proximate, it must be a 
 
            substantial factor in producing the result, but it need not 
 
            be the only cause.  Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348, 354 (Iowa 1980).
 
            
 
                 William's physical injuries sustained on March 13, 1984 
 
            healed and he recovered without any residual impairment or 
 
            physical disability.
 
            
 
                 William's preexisting psychiatric condition was 
 
            aggravated by the March 13, 1984 fall and injury, but the 
 
            aggravation was temporary.  It did not produce any permanent 
 
            disability.  The evidence in the case has failed to show, by 
 
            a preponderance of the evidence, that it is probable that 
 
            any of William's current state of disability was proximately 
 
            caused by that March 13, 1984 injury.  The evidence shows 
 
            his condition to have worsened since 1985.  The disability 
 
            is more likely a result of alcoholism or his underlying 
 
            psychiatric disorder, or some combination of those factors.
 
            
 
                 It is therefore concluded that William E. Nesbit, Sr., 
 
            is entitled to recover temporary total disability 
 
            compensation for the period running from March 14, 1984 
 
            through June 3, 1984, a period of 11 and 5/7 weeks.  
 
            According to the statements made in the prehearing report, 
 
            he has been previously paid that amount.  He is therefore 
 
            not entitled to any further recovery.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that the claimant, William E. 
 
            Nesbit, Sr., take nothing from this proceeding.
 
            
 
                 IT IS FURTHER ORDERED that the costs of this action are 
 
            assessed against the claimant pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Mr. John E. Wunder
 
            Mr. David W. Newell
 
            Attorneys at Law
 
            323 East 2nd Street
 
            P.O. Box 175
 
            Muscatine, Iowa  52761
 
            
 
            Mr. Mark D. Cleve
 
            Mr. John D. Stonebraker
 
            Ms. Patricia Rhodes Cepican
 
            Attorneys at Law
 
            P.O. Box 2746
 
            Davenport, Iowa  52809
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1108.20; 1402.30; 2206
 
                           Filed March 20, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            WILLIAM E. NESBIT, SR.,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 761994
 
                      :
 
            MUSCATINE POWER & WATER, :      A R B I T R A T I O N
 
                      :
 
                 Employer, :         D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            USF&G,    :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1108.20; 1402.30; 2206
 
            Claimant, who had a history of prior psychiatric problems, 
 
            failed to prove that a relative minor injury that occurred 
 
            in March proximately caused psychological disability which 
 
            became evidence in October and worsened thereafter.  He had 
 
            resumed work and worked without problems for approximately 
 
            four months between the time he recovered from the injury 
 
            and the onset of his disability.  The theory of closed head 
 
            trauma which was propounded by the claimant was rejected.
 
            
 
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            WILLIAM E. NESBIT, SR.,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 761994
 
            MUSCATINE POWER & WATER
 
                                                 R E M A N D
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            U S F & G,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            This case is on remand from the district court.  The 
 
            district court remanded this matter for reconsideration  
 
            considering claimant's exhibit 7 (a letter from W. H. 
 
            Verduyn, M.D., dated November 23, 1990) which had been 
 
            excluded from evidence by this agency.
 
            
 
                              FINDINGS OF FACT
 
            
 
                 William E. Nesbit, Sr., the claimant, is a 36-year-old 
 
            man who is presently totally disabled as a result of his 
 
            mental state.
 
            
 
                 William has a history of mental problems dating back to 
 
            1977.  He continued to express subjective complaints well 
 
            beyond the period of time which was medically indicated for 
 
            recovery after being struck by a piece of equipment which 
 
            fell while he was at work (joint exhibits 22 and 23).  He 
 
            was hospitalized and then diagnosed as having a depressive 
 
            disorder, traumatic neurosis, phobia--fear of another 
 
            accident, and psychosomatic pain production (joint exhibit 
 
            3, pages 5-8; joint exhibit 19, pages 10-12).  It was 
 
            indicated that the phobia may be a permanent condition 
 
            (joint exhibit 3, pages 12, 13 and 17).
 
            
 
                 In early November 1981, William was involved in a motor 
 
            vehicle accident.  Following that accident, he again 
 
            experienced psychiatric problems for which he sought 
 
            treatment.  That treatment continued through March 2, 1984, 
 
            the last date that he
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            was seen by his treating psychiatrist.  The diagnosis at the 
 
            time was unchanged (joint exhibit 17, page 12).  It is noted 
 
            that the progress notes show that at the time of the last 
 
            visit on March 2, 1984, further office visits were 
 
            anticipated as the last sentence reads, "He was told to 
 
            continue on the 1/2 Lopressor until evaluated again next 
 
            month."  (Joint exhibit 17, page 13)  The cessation of 
 
            treatment was apparently contrary to medical advice.
 
            
 
                 On March 13, 1984, William slipped and fell at work, 
 
            striking a pipe with the front of his hard hat as he fell.  
 
            After treating conservatively with a general practitioner 
 
            for approximately three weeks, he was referred to 
 
            orthopaedic surgeon David C. Naden, M.D.  The diagnosis 
 
            which was made was acute hyperextension injury of the 
 
            cervical spine with a probable avulsion-type fracture on the 
 
            anterior-inferior aspect of his C-5 vertebra.  Claimant made 
 
            slow progress, but was eventually released to return to work 
 
            effective June 4, 1984.  The progress notes indicate that 
 
            claimant felt good at that time.  The surgeon's final report 
 
            indicates that claimant could do the same work as he 
 
            performed prior to the injury and that there was no 
 
            permanent disability (exhibits 20 and 21).  It is noted in 
 
            the records that the only complaints of headache are found 
 
            in the March 13, 1984 notes from Dr. Klein.  The only 
 
            complaints in the subsequent records are of neck pain.
 
            
 
                 Upon being released to return to work, William resumed 
 
            employment with the employer performing his regular job.  
 
            According to human resources manager Daniel Olson and 
 
            general maintenance foreman Mel Gross, there was no problem 
 
            with William's work performance, but he did have an 
 
            attendance problem.  It was noted that William had an 
 
            attendance problem in 1983 as well.  Joint exhibit 25 
 
            indicates that on June 25, 1984 William was given a written 
 
            warning concerning his lack of attendance and failing to 
 
            call in prior to the starting time for his work shift (joint 
 
            exhibit 25, page 40).  William then apparently continued for 
 
            three and one-half months to appear for work promptly as 
 
            scheduled until October 15, 1984 when he again called in 
 
            sick.  On October 25, 1984, an additional written warning 
 
            was given making reference to the fact that William had not 
 
            attended work from October 15 through October 24, 1984 
 
            (joint exhibit 25, page 42).  It is noted that William did 
 
            have a written doctor's excuse for that period of absence 
 
            (exhibit 25, page 44).  William then again began missing 
 
            work from October 31 through November 7, 1984.  He failed to 
 
            respond to telephone calls and also to a registered letter.  
 
            On November 7, 1984, his employment was terminated (exhibit 
 
            25, pages 44 and 45).
 
            
 
                 Commencing at a time approximately consistent with the 
 
            termination of employment, William engaged in chronic 
 
            alcoholism with multiple hospitalizations for treatment 
 
            (joint exhibits 12, 13 and 15).  He has continued to 
 
            experience severe mental problems.  He is currently unable 
 
            to manage his own finances and personal affairs.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
                 William has been extensively tested and evaluated.  
 
            Neuropsychologist Frank S. Gersh, Ph.D., evaluated William 
 
            on September 21, 1988.  He expressed the opinion that 
 
            William had suffered brain damage in the incident in which 
 
            he fell at work on March 13, 1984; that William has a 
 
            depressive syndrome which is related to that brain damage; 
 
            that William developed alcohol abuse due to the injury; and, 
 
            that William has symptoms consistent with a seizure disorder 
 
            (joint exhibit 1, page 15).  Gersh indicated that his 
 
            opinion was based upon a history of symptoms, behavior and 
 
            psychological tests and that an important part is that 
 
            William's condition went downhill dramatically after the 
 
            March 13, 1984 injury in a manner which is consistent with 
 
            individuals who have experienced a head injury (joint 
 
            exhibit 1, page 18).  Gersh also explained that following a 
 
            closed head injury of the type he believed William suffered, 
 
            symptoms are present within a few days (joint exhibit 1, 
 
            pages 56 and 57).  Gersh also indicated that significant 
 
            alcohol-induced brain damage is commonly seen when the level 
 
            of consumption is equivalent to a fifth of liquor daily and 
 
            is combined with poor nutrition (joint exhibit 1, pages 
 
            71-73).
 
            
 
                 William was also evaluated by W. H. Verduyn, M.D., on 
 
            two occasions, September 2 and September 21, 1988.  Dr. 
 
            Verduyn expressed the opinion that William suffered a 
 
            traumatic brain injury on March 13, 1984 which caused 
 
            post-traumatic headaches and cognitive and behavioral 
 
            changes (joint exhibit 2, page 22).  Dr. Verduyn felt that 
 
            claimant was depressed due to the head trauma, its 
 
            consequences and the history of prior depressive episodes 
 
            (joint exhibit 2, pages 25 and 26).  The history on which 
 
            Dr. Verduyn relied included that claimant fell forward and 
 
            hit his head on a pipe, that his helmet came off and he then 
 
            hit his head on a cement floor (joint exhibit 2, page 29).  
 
            The history was also that claimant's behavior suddenly 
 
            changed following the March 13, 1984 injury (joint exhibit 
 
            2, pages 9 and 31).
 
            
 
                 Dr. Verduyn was of the opinion that claimant did not 
 
            have an alcohol problem prior to his head injury.  Dr. 
 
            Verduyn disagreed with Dr. Fish's opinions, described that 
 
            claimant had not experienced a severe head injury, and 
 
            firmly believed that claimant's March 13, 1984 work injury 
 
            was the cause of claimant's problems.  (Claimant's exhibit 
 
            7)
 
            
 
                 Claimant has also been evaluated by James A. Fish, 
 
            Ph.D., a neuropsychologist.  Fish found claimant to be 
 
            functioning at the borderline level of intelligence and to 
 
            be depressed, but that the results were not suggestive of 
 
            cognitive impairment due to a head injury (joint exhibit 7).  
 
            Fish subsequently indicated that the most likely cause of 
 
            claimant's mental deficits is alcoholism and that claimant's 
 
            psychiatric history is that of an individual who is 
 
            susceptible to depressive episodes (defendants' exhibit 1).
 
            
 
                 William was evaluated by neurosurgeon Thomas A. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Carlstrom, M.D.  Dr. Carlstrom expressed the opinion that 
 
            the March 13, 1984 injury is not a source of the impairment 
 
            which afflicts William.  In making his assessment, he relied 
 
            upon a history which included that claimant functioned well 
 
            after returning to work until the employment was terminated.  
 
            Dr. Carlstrom felt that claimant has severe alcoholic 
 
            encephalopathy (joint exhibit 8).  Dr. Carlstrom 
 
            subsequently reported that William does not have a seizure 
 
            disorder and that such a condition would not be related to a 
 
            mild head injury.  Dr. Carlstrom again stated that 
 
            claimant's problems are more likely related to the history 
 
            of alcoholism, prior head injuries and a preexisting 
 
            psychiatric disorder (defendants' exhibit 2).
 
            
 
                 William was evaluated by neurologist Joseph M. Doro, 
 
            D.O., who conducted an MRI test of claimant's brain and an 
 
            EEG test, both of which were normal.  Dr. Doro expressed the 
 
            opinion that claimant's problems are not related to the head 
 
            injury he sustained in 1984 (joint exhibit 9).
 
            
 
                 William was evaluated by Eugene Collins, M.D., who 
 
            found the cause of claimant's current behavior as being 
 
            uncertain.  He characterized the behavior as being "bizarre" 
 
            and stated that the symptoms are not typical for pure closed 
 
            head injury or for a psychiatric problem or a combination of 
 
            both (joint exhibit 10).
 
            
 
                 William was also evaluated at the University of Iowa 
 
            Hospitals.  It is noted that the history in the admission 
 
            records is inaccurate in several respects.  In particular, 
 
            it does not mention any of the pre-1984 psychiatric 
 
            problems.  The discharge diagnosis was that claimant had 
 
            organic personality syndrome, possibly secondary to head 
 
            injury or alcohol abuse (joint exhibit 11, page 11).  
 
            William had been hospitalized at the University of Iowa in 
 
            June of 1985 with a major depressive disorder (joint exhibit 
 
            14).
 
            
 
                 At points in the records dealing with alcoholism 
 
            treatment, claimant relates a history of alcohol consumption 
 
            at a level consistent with that which Dr. Gersh indicated 
 
            could cause mental impairment.
 
            
 
                 It is found that William E. Nesbit, Sr., did not 
 
            sustain any substantial head injury when he fell on March 
 
            13, 1984.  To the contrary, he recovered, resumed employment 
 
            and performed the duties of his employment as he had prior 
 
            to March 13, 1984 until experiencing some unexplained 
 
            aggravation of his underlying psychiatric problems in 
 
            October 1984.  There is no documentary evidence which 
 
            supports the testimony in the record which is to the effect 
 
            that March 13, 1984 marked the onset of continuing 
 
            headaches, behavioral changes and other problems.  The 
 
            extended period of recovery from the March 13, 1984 injury, 
 
            as reflected in Dr. Naden's notes, is likely a result of 
 
            that injury having temporarily aggravated William's 
 
            preexisting psychological disorder.  At several points in 
 
            the record, claimant is noted to have a dependent 
 
            personality and that he likely experiences secondary gain 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            from the attention he receives when he voices physical 
 
            complaints.  The same situation occurred following the 1981 
 
            automobile accident and the 1977 work-place injury.
 
            
 
                 The record in this case fails to show the continuation 
 
            of symptoms between the return to work in June and the 
 
            absences from work which commenced in October 1984.  For 
 
            these reasons, the assessment of the case made by Drs. 
 
            Carlstrom, Doro and Fish are accepted as being correct 
 
            rather than the assessments from Drs. Verduyn and Gersh.  It 
 
            is found that the evidence in this case does not show it to 
 
            be probable that the March 13, 1984 injury which William 
 
            Nesbit sustained at his place of employment was a 
 
            substantial factor in producing the disability which 
 
            currently afflicts him.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 William Nesbit has proven, by a preponderance of the 
 
            evidence, that he sustained an injury which arose out of and 
 
            in the course of his employment with Muscatine Power & Water 
 
            when he slipped and fell on March 13, 1984.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of March 13, 
 
            1984 is 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 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            part, by the trier of fact.  Id. at 907.  Further, the 
 
            weight to be given to such an opinion is for the finder of 
 
            fact, and that may be affected by the completeness of the 
 
            premise given the expert and other surrounding 
 
            circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867.  See 
 
            also Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 
 
            128 (1967).
 
            
 
                 Aggravation of a preexisting condition is one form of 
 
            compensable injury.  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.2d 756, 760-61 (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, 815 (1962).  For a cause to be proximate, it must be a 
 
            substantial factor in producing the result, but it need not 
 
            be the only cause.  Blacksmith v. All-American, Inc., 290 
 
            N.W.2d 348, 354 (Iowa 1980).
 
            
 
                 William's physical injuries sustained on March 13, 1984 
 
            healed and he recovered without any residual impairment or 
 
            physical disability.
 
            
 
                 William's preexisting psychiatric condition was 
 
            aggravated by the March 13, 1984 fall and injury, but the 
 
            aggravation was temporary.  It did not produce any permanent 
 
            disability.  The evidence in the case has failed to show, by 
 
            a preponderance of the evidence, that it is probable that 
 
            any of William's current state of disability was proximately 
 
            caused by that March 13, 1984 injury.  The evidence shows 
 
            his condition to have worsened since 1985.  The disability 
 
            is more likely a result of alcoholism or his underlying 
 
            psychiatric disorder, or some combination of those factors.
 
            
 
                 It is therefore concluded that William E. Nesbit, Sr., 
 
            is entitled to recover temporary total disability 
 
            compensation for the period running from March 14, 1984 
 
            through June 3, 1984, a period of 11 and 5/7 weeks.  
 
            According to the statements made in the prehearing report, 
 
            he has been previously paid that amount.  He is therefore 
 
            not entitled to any further recovery.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered that the claimant, William E. 
 
            Nesbit, Sr., take nothing from this proceeding.
 
            
 
     
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            It is further ordered that the costs of this action are 
 
            assessed against the claimant pursuant to rule 343 IAC 4.33.
 
            
 
            Signed and filed this ____ day of July, 1994.
 
            
 
            
 
                                        ________________________________
 
                                        BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. John E. Wunder
 
            Mr. David W. Newell
 
            Attorneys at Law
 
            323 East 2nd Street
 
            P.O. Box 175
 
            Muscatine, Iowa  52761
 
            
 
            Mr. Mark D. Cleve
 
            Mr. John D. Stonebraker
 
            Ms. Patricia Rhodes Cepican
 
            Attorneys at Law
 
            P.O. Box 2746
 
            Davenport, Iowa  52809
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             1108.20; 1402.30; 2206
 
                                             Filed July 26, 1994
 
                                             Byron K. Orton
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ____________________________________________________________
 
            WILLIAM E. NESBIT, SR.,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 761994
 
            MUSCATINE POWER & WATER
 
                                                 R E M A N D
 
                 Employer,   
 
                                               D E C I S I O N
 
            and         
 
                        
 
            U S F & G,       
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            1108.20; 1402.30; 2206
 
            
 
            Claimant, who had a history of prior psychiatric problems, 
 
            failed to prove that a relative minor injury that occurred 
 
            in March proximately caused psychological disability which 
 
            became evidenced in October and worsened thereafter.  He had 
 
            resumed work and worked without problems for approximately 
 
            four months between the time he recovered from the injury 
 
            and onset of his disability.  The theory of closed head 
 
            trauma which was propounded by the claimant was rejected.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                           :
 
            SUSAN M. LOUTSCH,              :
 
                                           :
 
                 Claimant,                 :
 
                                           :       File No. 762047
 
            vs.                            :
 
                                           :       A T T O R N E Y
 
            MERCY HOSPITAL,                :
 
                                           :            F E E
 
                 Employer,                 :
 
                                           :       D E C I S I O N
 
            and                            :
 
                                           :
 
            ST. PAUL PROPERTY & LIABILITY  :
 
            INSURANCE,                     :
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendants.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding to apportion claimant's attorneys' 
 
            fees in this matter as a result of a special case settlement 
 
            approved by this agency.  Both attorneys involved agreed to 
 
            a summary decision by this agency on this matter based upon 
 
            the existing pleadings and record without further hearing.  
 
            The attorneys agreed that the total fee to be apportioned is 
 
            the sum of $1,500.  This agency previously approved a 25 
 
            percent lien in favor of one of the attorneys but left open 
 
            the exact amount of fees for later determination pending 
 
            final resolution of the claim.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 On or about May 22, 1984 claimant, Susan Loutsch, 
 
            entered into a written contingent fee agreement with 
 
            attorney, Benjamin W. Blackstock, wherein Blackstock was to 
 
            be paid for services rendered to Loutsch an amount equiva
 
            lent to 25 percent of any amounts collected in a workers' 
 
            compensation claim he was to pursue for an injury on or 
 
            about April 5, 1984.  On or about February 13, 1985, for 
 
            reasons unknown to this deputy commissioner, claimant hired 
 
            a second counsel, Tom Riley Law Firm, P.C., to replace 
 
            Blackstock and entered into another contingent fee agreement 
 
            wherein the Riley Firm was to be paid for services rendered 
 
            an amount equivalent to one-third of any recovery on the 
 
            same workers' compensation claim.
 
            
 
                 In September 1987, claimant settled with defendants for 
 
            the sum of $4,500 in a special case settlement upon a show
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            ing to this agency that there was a bona fide dispute as to 
 
            liability.  The dispute concerned whether or not claimant's 
 
            condition was contracted at work or in some other fashion.  
 
            As set forth above, the two attorneys in this case agreed 
 
            that the total fees for both should not exceed $1,500 in any 
 
            event.  Such a total fee is found by the undersigned to be 
 
            reasonable.
 
            
 
                 According to uncontroverted pleadings, attorney Black
 
            stock expended approximately 21 hours in pursuit of the 
 
            claim and advanced $10.81 in costs before he was terminated 
 
            by claimant.  These efforts were valuable as he did obtain a 
 
            physician's report opining permanent partial impairment from 
 
            the work injury.  Attorneys from the Riley firm, one being 
 
            Thomas J. Currie, expended a total of 69.1 hours and 
 
            advanced $390.00 in costs.  However, the actual time each 
 
            attorney expended on claimant's behalf is not reflective of 
 
            the relative worth of the services toward obtaining the 
 
            settlement.  A significant portion of this time charged by 
 
            the Riley Firm was for challenging Blackstock's lien appli
 
            cation before this agency which had nothing to do with 
 
            claimant's claim.  Also, what role the report obtained by 
 
            Blackstock played in securing the settlement is not clear in 
 
            the record.  However, in the experience of this agency, such 
 
            reports would greatly contribute to claimant's bargaining 
 
            position in settlement negotiations with defendants.  On the 
 
            other hand, litigation before this agency was initiated and 
 
            pursued by the Riley Firm and not Blackstock.  Blackstock 
 
            seeks one-half of the $1,500 fee and the Riley Firm suggests 
 
            a split of $1,000 for them and $500 for Blackstock.  It is 
 
            found that a reasonable resolution of this dispute lies 
 
            between the two positions.  Blackstock should receive 40 
 
            percent of the fees and the Riley Firm 60 percent of the 
 
            fees.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Attorneys have the burden of establishing by a prepon
 
            derance of the evidence that any fee they wish to charge is 
 
            reasonable and should be approved.  This burden arises from 
 
            the ethical requirements of the legal profession.  Attorneys 
 
            are required under the Iowa Code of Professional Responsi
 
            bility for Lawyers (hereinafter referred to as ICPRFL) to 
 
            only charge reasonable fees.  See  EC (ethical considera
 
            tion) 2-19 and DR (disciplinary rule) 2-106, ICPRFL. 
 
            
 
                 This agency's authority to review attorney fees arises 
 
            by statute.  Iowa Code section 86.39 states as follows:
 
            
 
                 All fees or claims for legal, medical, hospital, 
 
                 and burial services rendered under this chapter 
 
                 and chapters 85 and 87 shall be subject to the 
 
                 approval of the industrial commissioner, and no 
 
                 lien for such service shall be enforceable without 
 
                 the approval of the amount thereof by the 
 
                 industrial commissioner....
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Resolution of a fee dispute contains two factual 
 
            inquires.  The first consideration involves the nature of 
 
            the fee agreement and the second consideration involves the 
 
            reasonableness of the fee charged pursuant to that agree
 
            ment.  In this case, we are dealing with a contingency fee 
 
            arrangement in which the fee is based upon a percentage of 
 
            the recovery.  Such fees have been long accepted in proceed
 
            ings before the courts and administrative agencies. See EC 
 
            2-22, ICPRFL.  However, despite ethical acceptance of such 
 
            fee agreements and regardless of the embodiment of the fee 
 
            agreement in written form as suggested in EC 2-21, such 
 
            agreements are not binding upon a tribunal reviewing the 
 
            appropriateness of the resulting fee.  Kirkpatrick v. 
 
            Patterson, 172 N.W.2d 259, 261 (Iowa 1969).  In Kirkpatrick 
 
            the Court stated that a one-third contingent fee contract 
 
            may be reasonable but any determination must be based upon 
 
            the facts and circumstances of a particular case.  The Court 
 
            listed the appropriate factors which have a bearing on the 
 
            reasonableness of the fee.  These factors are substantially 
 
            the same as those contained in DR 2-106 of ICPRFL.  These 
 
            factors are as follows:
 
            
 
                 [T]ime spent, the nature and extent of the ser
 
                 vices, the amount involved, the difficulty of 
 
                 handling and importance of the issues, the respon
 
                 sibility assumed and the results obtained, as well 
 
                 as the professional standing and experience of the 
 
                 attorney....
 
            
 
            Kirkpatrick, Id at 261.
 
            
 
                 Although the various evaluating factors are different 
 
            for each case, this agency has in the past approved one 
 
            third contingency fee arrangements when appropriate.  See 
 
            Francis v. Ryder Truck Rental, IV Iowa Industrial Comm'r 
 
            Reports 129 (App. Dec. 1983)
 
            
 
                 Given the findings of fact in this case, as a matter of 
 
            law, the fees of attorneys Blackstock, in the amount of 
 
            $600, and the Tom Riley Law Firm, in the amount of $900, are 
 
            deemed reasonable and will be ordered.
 
            
 
                                      ORDER
 
            
 
                 1.  The attorney fees of Benjamin J. Blackstock in the 
 
            case of Susan Loutsch for the claim of injury on April 5, 
 
            1984 are approved in the amount of six hundred and no/l00 
 
            dollars ($600.00).
 
            
 
                 2.  The attorney fees of the Tom Riley Law Firm, P.C., 
 
            in the case of Susan Loutsch for the claim of injury on 
 
            April 5, 1984 are approved in the amount of nine hundred and 
 
            no/l00 dollars ($900.00).
 
            
 
                 3.  The parties and attorneys are ordered to perform 
 
            all necessary acts to implement payment of these approved 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            fees no later than March 15, 1993.
 
            
 
                 4.  Costs, if any, are assessed forty percent (40%) and 
 
            sixty percent (60%) between attorney Blackstock and the 
 
            Riley Law Firm, respectively.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas J. Currie
 
            Attorney at Law
 
            3401 Williams Blvd SW
 
            P O Box 998
 
            Cedar Rapids, Iowa  52406
 
            
 
            Mr. Benjamin W. Blackstock
 
            Attorney at Law
 
            1000 Collins Road NE
 
            Cedar Rapids, Iowa  52402
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 5-1000
 
                                                 Filed March 1, 1993
 
                                                 LARRY P. WALSHIRE
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                           :
 
            SUSAN M. LOUTSCH,              :
 
                                           :
 
                 Claimant,                 :
 
                                           :       File No. 762047
 
            vs.                            :
 
                                           :       A T T O R N E Y
 
            MERCY HOSPITAL,                :
 
                                           :            F E E
 
                 Employer,                 :
 
                                           :       D E C I S I O N
 
            and                            :
 
                                           :
 
            ST. PAUL PROPERTY & LIABILITY  :
 
            INSURANCE,                     :
 
                                           :
 
                 Insurance Carrier,        :
 
                 Defendants.               :
 
            ___________________________________________________________
 
            
 
            
 
            5-1000
 
            Attorney fee dispute, non-precedential
 
                 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            DALE FUGIT,                     :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 762290
 
            JIMMY DEAN MEAT COMPANY,        :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            FIREMAN'S FUND INSURANCE        :
 
            COMPANIES,                      :
 
                                            :
 
                 Insurance Carrier,         :
 
                                            :
 
            and                             :
 
                                            :
 
            SECOND INJURY FUND OF IOWA,     :
 
                                            :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            _____
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.
 
            
 
                                      issues
 
            
 
                 The issues on appeal are:  Whether the defendants' 
 
            activity and evidence were properly cut off; and the nature 
 
            and extent of the employer's liability for the April 1, 1984 
 
            injury.  These are the issues that defendants, employer and 
 
            insurance carrier, have raised on appeal.  Claimant neither 
 
            appealed nor cross-appealed.  Claimant's attempt to raise 
 
            the issue of entitlement to Second Injury Fund benefits in 
 
            his appeal brief will not be considered.  Only those issues 
 
            properly raised by an appealing party will be considered.  
 
            See Bral v. Farmland Foods Inc., Appeal Decision, March 5, 
 
            1991, file no. 839759.
 
            
 
                                 findings of fact
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed March 19, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 
            language of the proposed agency decision.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant sustained an injury to his left shoulder on 
 
            September 26, 1979.  He sought treatment from Larry W. 
 
            Richard, M.D.  Dr. Richard's notes for that date state:
 
            
 
                 Trouble with arm - Pulled muscles about month a 
 
                 half ago (R) arm now (L) arm hurts - hands numb
 
            
 
                 L shoulder pain last 2-3 weeks; seems to get worse 
 
                 when he raises his arm; especially straight 
 
                 outward; feels better when hot packs are applied 
 
            
 
                 he has restricted range of motion of the L 
 
                 shoulder; scapula begins to move with it about 703; 
 
                 mate on opposite side scapula moves at about 903; 
 
                 there is some crepitus palpable over the superior 
 
                 portion of the joint
 
            
 
            (Exhibit 1, Page 1)
 
            
 
                 Claimant never again sought treatment for his left 
 
            shoulder from Dr. Richard.  He did seek chiropractic 
 
            treatment from G. E. Anderson, D.C.  The chiropractor 
 
            diagnosed claimant's condition as: "frozen shoulder syndrome 
 
            with rotator cuff dyskinesia."
 
            
 
                 On April 4, 1984, an incident occurred while claimant 
 
            was pulling blades at work.  He felt pain in his right wrist 
 
            and arm, and he could not bend his little finger.  As a 
 
            result, defendant employer authorized claimant to seek 
 
            treatment from Douglas D. Reagan, M.D.
 
            
 
                 [In a note dated May 30, 1984 Dr. Reagan gave an 
 
            impression of an injury of the right little finger and a 
 
            possible rupture in the carpal tunnel area.  (Ex. 4, p. 2)]
 
            
 
                 Dr. Reagan performed surgery on June 1, 1984.  The 
 
            surgical procedure involved:
 
            
 
                 1)  Carpal tunnel release,
 
            
 
                 2)  Ulnar tunnel release,
 
            
 
                 3)  Repair of flexor digitorum profundus at the 
 
                 mid-palmar area,
 
            
 
                 4)  Synovectomy of the wrist,
 
            
 
                 5)  Trigger finger release of the wrist.
 
            
 
                 [The post operative diagnosis was:
 
            
 
                 1) Rupture of flexor digitorum profundus at the 
 
                 hook of the hamate.  2) Marked synovitis or the 
 
                 carpal canal.  3) Carpal tunnel syndrome.  4) 
 
                 Cubital tunnel syndrome.  5) Ganglion at the Al 
 
                 pulley, right ring finger.  6) Tenosynovitis and 
 
                 trigger finger of the right ring finger.
 
            
 
            (Ex. 4, p. 8)]
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Subsequent to the surgical procedure, claimant engaged 
 
            in an exercise program.  Dr. Reagan opined claimant was 
 
            functionally impaired as follows:
 
            
 
                 In reviewing Mr. Fugit's operative report, four of 
 
                 the procedures are related to his work.  They are 
 
                 as follows - 1) carpal tunnel release, 2) ulnar 
 
                 tunnel release, 3) repair of flexor digitorum 
 
                 profundus at the midpalmer area, and 4) 
 
                 synovectomy of the wrist.  The trigger finger 
 
                 release of the ring finger and excision of the 
 
                 ganglion at that level were not related to his 
 
                 work.
 
            
 
                 The impairment rating of 10% was to the upper 
 
                 extremity.  [Ex. 4, p. 22]
 
            
 
                 Dr. Reagan did not impose restrictions on claimant.
 
            
 
                 On October 28, 1984, claimant returned to work at the 
 
            same job.  Approximately a year and a half later, he changed 
 
            his job to a rip out trimmer on the kill floor.  Claimant 
 
            testified the newer position was easier on claimant's left 
 
            shoulder but it paid $.35 less per hour.  He performed that 
 
            job for nearly two years until he bid into the kitchen area.  
 
            Claimant earned $.30 less per hour than with the position he 
 
            held on the date of his injury.  At the time of the hearing, 
 
            claimant earned $9.91 per hour.
 
            
 
                 In anticipation of pending litigation, claimant was 
 
            also evaluated for functional impairment ratings by Dr. 
 
            Anderson and by Tom Bower, LPT.  Dr. Anderson rated claimant 
 
            as having a 10 percent impairment to the left upper 
 
            extremity.  He also rated the right upper extremity as:
 
            
 
                           1st finger          14 percent
 
            
 
                           last finger          3 percent
 
            
 
                           middle finger       11 percent
 
            
 
                           ring finger          6 percent
 
            
 
                           thumb                5 percent
 
            
 
                                               39 percent
 
            
 
                           wrist               12 percent
 
            
 
                 Mr. Bower opined that on the basis of a loss of motion, 
 
            claimant had incurred a 16 percent impairment to the right 
 
            index finger, a ten percent impairment to the long finger, a 
 
            five percent impairment to the ring finger, and a three 
 
            percent impairment to the small finger.  [Ex. 2, p. 1] ***** 
 
            Mr. Bower explained he did not evaluate the thumb because it 
 
            related to a 1972 injury.  Nor did he evaluate claimant's 
 
            wrist as he opined the wrist was distal to that area, and 
 
            there was normal range of motion in the wrist.
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 [The record in this matter reveals the following:  An 
 
            original notice and petition was filed March 16, 1989 naming 
 
            the employer, the employer's insurance carrier, and the 
 
            Second Injury Fund as defendants.  The affidavit of service 
 
            shows service on the employer and the Second Injury Fund.  
 
            On June 13, 1989 a deputy ordered the employer to file an 
 
            answer to the petition within 20 days of that order.  That 
 
            order was also sent to the employer's insurance carrier and 
 
            warned that sanctions may result for failure to timely 
 
            comply with the order.  On July 24, 1989 the employer's 
 
            evidence and activity was cut off for failure to file an 
 
            answer.  An answer to the petition was filed on August 28, 
 
            1989.]
 
            
 
                                conclusions of law
 
            
 
                 The first issue to be resolved is whether the 
 
            defendants' (employer and insurance carrier) evidence was 
 
            properly cut off.
 
            
 
                 Iowa Code section 86.8 provides in relevant part:  
 
            
 
                    The commissioner shall:  
 
            
 
                    1.  Adopt and enforce rules necessary to 
 
                 implement this chapter and chapters 85, 85A, 85B, 
 
                 and 87.  
 
            
 
                 Rule 343 IAC 4.36 provides:  
 
            
 
                    If any party to a contested case or an attorney 
 
                 representing such party shall fail to comply with 
 
                 these rules or any order of a deputy commissioner 
 
                 or the industrial commissioner, the deputy 
 
                 commissioner or industrial commissioner may 
 
                 dismiss the action.  Such dismissal shall be 
 
                 without prejudice.  The deputy commissioner or 
 
                 industrial commissioner may enter an order closing 
 
                 the record to further activity or evidence by any 
 
                 party for failure to comply with these rules or an 
 
                 order of a deputy commissioner or the industrial 
 
                 commissioner.
 
            
 
                 Rule 343 IAC 4.40 provides in relevant part:
 
            
 
                    The industrial commissioner or the industrial 
 
                 commissioner's designee (hereinafter collectively 
 
                 referred to as the industrial commissioner) shall 
 
                 have all power reasonable and necessary to resolve 
 
                 contested cases filed under Chapter 4 of these 
 
                 rules.  This power includes, but is not limited 
 
                 to, the following: the power to resolve matters 
 
                 pursuant to initiation of mandatory dispute 
 
                 resolution proceedings by the industrial 
 
                 commissioner; the power to resolve matters 
 
                 pursuant to a request by the parties; the power to 
 
                 impose sanctions; and the power to require conduct 
 
                 by the parties.  However, no issue in a contested 
 
                 case may be finally resolved under this rule 
 
                 without consent of the parties.  (Emphasis added.)
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 In this case the employer did not file an answer to an 
 
            original notice and petition which was served upon the 
 
            employer.  See rule 343 IAC 4.9 which requires a timely 
 
            answer.  This agency ordered the employer to file an answer 
 
            within 20 days.  No timely answer was filed in response to 
 
            that order.  The employer's evidence and activity was cut 
 
            off and an answer was not filed until August 28, 1989 which 
 
            was over a month after the time employer was ordered to file 
 
            an answer.  It is proper to impose sanctions in this case.  
 
            The employer and its insurance carrier's activity was 
 
            properly cut off.  It should be noted that this issue is 
 
            somewhat academic given the conclusions below regarding the 
 
            employer's liability.
 
            
 
                 The next issue to be resolved is the nature and extent 
 
            of the employer's liability for claimant's April 1, 1984 
 
            injury.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the alleged injury 
 
            actually occurred and that it arose out of and in the course 
 
            of employment.  McDowell v. Town of Clarksville, 241 N.W.2d 
 
            904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 
 
            154 N.W.2d 128 (1967).  The words "arising out of" refer to 
 
            the cause or source of the injury.  The words "in the course 
 
            of" refer to the time, place and circumstances of the 
 
            injury.  Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); 
 
            McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 The question of causal connection is essentially within 
 
            the domain of expert testimony.  The expert medical evidence 
 
            must be considered with all other evidence introduced 
 
            bearing on the causal connection between the injury and the 
 
            disability.  The weight to be given to any expert opinion is 
 
            determined by the finder of fact and may be affected by the 
 
            accuracy of the facts relied upon by the expert as well as 
 
            other surrounding circumstances.  The expert opinion may be 
 
            accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
            Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
            Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
            Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
            
 
                 The right of an employee to receive compensation for 
 
            injuries sustained is statutory.  The statute conferring 
 
            this right can also fix the amount of compensation payable 
 
            for different specific injuries.  The employee is not 
 
            entitled to compensation except as the statute provides.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 Compensation for permanent partial disability begins at 
 
            termination of the healing period.  Iowa Code section 
 
            85.34(2).  Permanent partial disabilities are classified as 
 
            either scheduled or unscheduled.  A specific scheduled 
 
            disability is evaluated by the functional method; the 
 
            industrial method is used to evaluate an unscheduled 
 
            disability.  Simbro v. Delong's Sportswear, 332 N.W.2d 886 
 
            (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 
 
            (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 
 
            N.W.2d 95 (1960).
 
            
 
                 A wrist injury generally is an injury to the hand, not 
 
            the upper extremity.  The hand extends to the distal end of 
 
            the radius and ulna, including the carpus or wrist.  Elam v. 
 
            Midland Mfg., II Iowa Industrial Commissioner Report 141 
 
            (App. 1981).
 
            
 
                 The employer and the claimant stipulated that 
 
            claimant's April 1, 1984 injury was to a scheduled member, 
 
            the right upper extremity.  The employer has apparently paid 
 
            claimant weekly benefits based upon a ten percent impairment 
 
            of the arm (25 weeks).  Dr. Anderson gave claimant a ten 
 
            percent impairment to the right upper extremity.  Dr. 
 
            Reagan, claimant's treating doctor, gave claimant a ten 
 
            percent impairment rating of the upper extremity.  Dr. 
 
            Anderson and Mr. Bower rated claimant's individual fingers.  
 
            However, Mr. Bower apparently misapplied the Guides to the 
 
            Evaluation of Permanent Impairment published by the American 
 
            Medical Association (hereinafter AMA Guides) in reaching his 
 
            conclusion that claimant had a total impairment of 34 
 
            percent of the hand (ex. 2, p. 1).  The proper application 
 
            of Dr. Anderson's and Mr. Bower's ratings should be using 
 
            the following method.  See page 28 of the AMA Guides, 3rd 
 
            Revised Edition).  The impairments of the fingers are 
 
            evaluated separately.  The impairments of the fingers are 
 
            used to find the hand impairment contributed by each digit 
 
            by using Table 1 of the AMA Guides.  The impairments of the 
 
            hand contributed by each digit are used to find the total 
 
            impairment of the hand by adding the hand impairments values 
 
            contributed by each digit.  The hand impairment is used to 
 
            determine the relationship to the upper extremity (Table 2 
 
            of the AMA Guides.)
 
            
 
                 The relationship of the impairment of the fingers to 
 
            the hand is the same for both Dr. Anderson's and Mr. Bower's 
 
            impairment ratings, i.e., 3 percent of the hand for the 
 
            first finger; 0 percent of the hand for the little finger; 2 
 
            percent of the hand for the middle finger; and 1 percent of 
 
            the hand for the ring finger (See Table 1 AMA Guides).  (The 
 
            thumb is excluded because Mr. Bower related it to a 1972 
 
            injury).  The total impairment of the hand for impairments 
 
            of the digits of 3, 0, 2, and 1 percents is 6 percent.  The 
 
            relationship of a six percent impairment of the hand to the 
 
            upper extremity is a five percent impairment of the upper 
 
            extremity.
 
            
 
                 The evidence in this case indicates claimant has either 
 
            a five percent (based upon combined impairments of the 
 
            digits) or a ten percent impairment to the right upper 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            extremity (based upon Dr. Reagan's rating).  Because the 
 
            employer has already paid benefits based on a ten percent 
 
            weekly impairment of the arm, claimant is entitled to no 
 
            further weekly benefits from the employer in this 
 
            proceeding.  (Given the situs of claimant's disability, the 
 
            disability clearly does not extend beyond a scheduled 
 
            member.)
 
            
 
                 It should be noted that Dr. Anderson clearly said his 
 
            impairment ratings of the fingers were based on AMA Guides 
 
            (ex. 3, p. 18).  His ratings of the fingers were very 
 
            similar to Mr. Bower's.  While Mr. Bower does not state he 
 
            used the AMA Guides, the similarity to Dr. Anderson's 
 
            ratings and the description of the evaluation indicates Mr. 
 
            Bower probably also used the AMA Guides to evaluate the 
 
            impairment to the fingers.  It is, at best, unclear how Mr. 
 
            Bower arrived at his conclusion of a 34 percent impairment 
 
            to the hand.  (It appears that Mr. Bower erroneously added 
 
            the impairments of the digits to arrive at the 34 percent 
 
            impairment to the hand.)  Mr. Bower clearly evaluated the 
 
            impairment of claimant's fingers.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That claimant shall take nothing from these 
 
            proceedings.
 
            
 
                 That defendants (employer and its insurance carrier, 
 
            shall pay the costs of this matter including transcription 
 
            of the hearing and shall reimburse claimant for the filing 
 
            fee if previously paid by claimant.
 
            
 
                 Signed and filed this ____ day of February, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Charles E. Cutler
 
            Attorney at Law
 
            729 Ins. Exchange Bldg.
 
            Des Moines, Iowa 50309
 
            
 
            Ms. Dorothy L. Kelley
 
            Attorney at Law
 
            500 Liberty Bldg.
 
            Des Moines, Iowa 50309
 
            
 
            Mr. Greg Knoploh
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1803.1
 
            Filed February 22, 1993
 
            Byron K. Orton
 
            MAM
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                            :
 
            DALE FUGIT,                     :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 762290
 
            JIMMY DEAN MEAT COMPANY,        :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            FIREMAN'S FUND INSURANCE        :
 
            COMPANIES,                      :
 
                                            :
 
                 Insurance Carrier,         :
 
                                            :
 
            and                             :
 
                                            :
 
            SECOND INJURY FUND OF IOWA,     :
 
                                            :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            _____
 
            
 
            1803.1
 
            Claimant was rated as having a 10 percent impairment of the 
 
            right upper extremity by his treating physician.  The 
 
            employer paid claimant 25 weeks (10 percent of the arm) of 
 
            permanent disability benefits.  Later evaluation of claimant 
 
            by a chiropractor and a licensed physical therapist were for 
 
            impairments of the fingers.  Proper use of the AMA Guides 
 
            resulted in a finding of an impairment of five percent to 
 
            the upper extremity based upon the impairment evaluations of 
 
            the fingers.  Claimant and employer stipulated the injury 
 
            was to the upper extremity.  Claimant took nothing from the 
 
            proceeding because the amount paid exceeded claimant's 
 
            entitlement to benefits.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DALE FUGIT,                   :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 762290
 
            JIMMY DEAN MEAT COMPANY,      :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            FIREMAN'S FUND INSURANCE      :
 
            COMPANIES,                    :
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration upon the petition 
 
            of claimant, Dale Fugit, against his employer, Jimmy Dean 
 
            Meat Company, and its insurance carrier, Fireman's Fund 
 
            Insurance Company, defendants, this is also a proceeding 
 
            against the Second Injury Fund of Iowa.  The case was heard 
 
            on July 10, 1990, in Des Moines, Iowa at the office of the 
 
            industrial commissioner.  The record consists of joint 
 
            exhibits 1 through 9, 10, and 11.  The record also consists 
 
            of the testimonies of claimant, David Sams, and Odetta 
 
            Fugit.  Pursuant to a ruling, dated July 24, 1989, Deputy 
 
            Industrial Commissioner Larry Walshire closed the record to 
 
            further evidence or activity by defendant, Jimmy Dean Meat 
 
            Company.
 
            
 
                                      issues
 
            
 
                 The issues to be determined are:
 
            
 
                 1)  Whether claimant is entitled to permanent partial 
 
            disability benefits;
 
            
 
                 2)  Whether claimant is entitled to medical benefits;
 
            
 
                 3)  Whether claimant timely filed its claim against the 
 
            Second Injury Fund.
 
            
 
                                 findings of fact
 
            
 
                 The deputy, having heard the testimony and considered 
 
            all the evidence, finds:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant sustained an injury to his left shoulder on 
 
            September 26, 1979.  He sought treatment from Larry W. 
 
            Richard, M.D.  Dr. Richard's notes for that date state:
 
            
 
                 Trouble with arm - Pulled muscles about month a 
 
                 half ago (R) arm now (L) arm hurts - hands numb
 
            
 
                 L shoulder pain last 2-3 weeks; seems to get worse 
 
                 when he raises his arm; especially straight 
 
                 outward; feels better when hot packs are applied 
 
            
 
                 he has restricted range of motion of the L 
 
                 shoulder; scapula begins to move with it about 703; 
 
                 mate on opposite side scapula moves at about 903; 
 
                 there is some crepitus palpable over the superior 
 
                 portion of the joint
 
            
 
            (Exhibit 1, Page 1)
 
            
 
                 Claimant never again sought treatment for his left 
 
            shoulder from Dr. Richard.  He did seek chiropractic 
 
            treatment from G. E. Anderson, D.C.  The chiropractor 
 
            diagnosed claimant's condition as: "frozen shoulder syndrome 
 
            with rotator cuff dyskinesia."
 
            
 
                 On April 4, 1984, an incident occurred while claimant 
 
            was pulling blades at work.  He felt pain in his right wrist 
 
            and arm, and he could not bend his little finger.  As a 
 
            result, defendant employer authorized claimant to seek 
 
            treatment from Douglas D. Reagan, M.D.
 
            
 
                 Dr. Reagan performed surgery on June 1, 1984.  The 
 
            surgical procedure involved:
 
            
 
                 1)  Carpal tunnel release,
 
            
 
                 2)  Ulnar tunnel release,
 
            
 
                 3)  Repair of flexor digitorum profundus at the 
 
                 mid-palmar area,
 
            
 
                 4)  Synovectomy of the wrist,
 
            
 
                 5)  Trigger finger release of the wrist.
 
            
 
                 Subsequent to the surgical procedure, claimant engaged 
 
            in an exercise program.  Dr. Reagan opined claimant was 
 
            functionally impaired as follows:
 
            
 
                 In reviewing Mr. Fugit's operative report, four of 
 
                 the procedures are related to his work.  They are 
 
                 as follows - 1) carpal tunnel release, 2) ulnar 
 
                 tunnel release, 3) repair of flexor digitorum 
 
                 profundus at the midpalmer area, and 4) 
 
                 synovectomy of the wrist.  The trigger finger 
 
                 release of the ring finger and excision of the 
 
                 ganglion at that level were not related to his 
 
                 work.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 The impairment rating of 10% was to the upper 
 
                 extremity.
 
            
 
                 Dr. Reagan did not impose restrictions on claimant.
 
            
 
                 On October 28, 1984, claimant returned to work at the 
 
            same job.  Approximately a year and a half later, he changed 
 
            his job to a rip out trimmer on the kill floor.  Claimant 
 
            testified the newer position was easier on claimant's left 
 
            shoulder but it paid $.35 less per hour.  He performed that 
 
            job for nearly 2 years until he bid into the kitchen area.  
 
            Claimant earned $.30 less per hour than with the position he 
 
            held on the date of his injury.  At the time of the hearing, 
 
            claimant earned $9.91 per hour.
 
            
 
                 In anticipation of pending litigation, claimant was 
 
            also evaluated for functional impairment ratings by Dr. 
 
            Anderson and by Tom Bower, LPT.  Dr. Anderson rated claimant 
 
            as having a 10 percent impairment to the left upper 
 
            extremity.  He also rated the right upper extremity as:
 
            
 
                           1st finger          14 percent
 
            
 
                           last finger          3 percent
 
            
 
                           middle finger       11 percent
 
            
 
                           ring finger          6 percent
 
            
 
                           thumb                5 percent
 
            
 
                                               39 percent
 
            
 
                           wrist               12 percent
 
            
 
                 Mr. Bower opined that on the basis of a loss of motion, 
 
            claimant had incurred a 16 percent impairment to the right 
 
            index finger, a 10 percent impairment to the long finger, a 
 
            5 percent impairment to the ring finger, and a 3 percent 
 
            impairment to the small finger, for a total of 34 percent 
 
            impairment to the hand.  Mr. Bower explained he did not 
 
            evaluate the thumb because it related to a 1972 injury.  Nor 
 
            did he evaluate claimant's wrist as he opined the wrist was 
 
            distal to that area, and there was normal range of motion in 
 
            the wrist.
 
            
 
                                conclusions of law
 
            
 
                 This agency has jurisdiction of the subject matter of 
 
            this proceeding and its parties.
 
            
 
                 The first issue before the undersigned is the nature 
 
            and extent of claimant's April 4, 1984 injury.  The claimant 
 
            and the employer and insurance carrier have stipulated that 
 
            claimant had sustained an injury to the right upper 
 
            extremity.  Dr. Anderson incorrectly included the thumb in 
 
            his evaluation.  He also included an impairment of the wrist 
 
            which Mr. Bower found had normal range of motion.  Mr. 
 
            Bower's rating of 34 percent impairment to the hand 
 
            translates to a 31 percent impairment to the upper 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            extremity.  This closely correlates with the rating of Mr. 
 
            Anderson, absent the wrist and thumb.  Only Dr. Reagan's 
 
            rating is inconsistent with the rating given by the other 
 
            two practitioners.  He assessed a 10 percent impairment.  
 
            His determination was related to the rupture of the little 
 
            finger tendon.  Dr. Reagan acknowledged there was some 
 
            impairment of the fingers, although he did not quantify that 
 
            impairment.  According to claimant, Dr. Reagan did not 
 
            perform range of motion tests for each finger; he just 
 
            pricked each finger for feeling.
 
            
 
                 Therefore, in light of the above, it is the 
 
            determination of the undersigned that claimant has a 31 
 
            percent impairment to the right upper extremity.  Claimant 
 
            is entitled to 77.5 weeks of benefits at the stipulated rate 
 
            of $270.23 per week.
 
            
 
                 The next issue to be addressed is whether claimant is 
 
            entitled to benefits from the Second Injury Fund.
 
            
 
                 Before the Second Injury Fund is triggered, three 
 
            requirements must be met.  First, the employee must have 
 
            lost or lost the use of a hand, arm, foot, leg or eye.  
 
            Second, the employee must sustain a loss or loss of use of 
 
            another specified member or organ through a compensable 
 
            injury.  Third, permanent disability must exist as to both 
 
            the initial injury and the second injury.  See Allen v. 
 
            Second Injury Fund, Thirty-fourth Biennial Report of the 
 
            Iowa Industrial Commissioner 15 (1980); Ross v. 
 
            Servicemaster-Story Co., Thirty-fourth Biennial Report of 
 
            the Iowa Industrial Commissioner 273 (1979).  The Act exists 
 
            to encourage the hiring of handicapped persons by making the 
 
            current employer responsible only for the amount of 
 
            disability related to an injury occurring under his employ 
 
            as if there were no preexisting disability.  See Anderson v. 
 
            Second Injury Fund, 262 N.W.2d 789, 791 (Iowa 1978); Lawyer 
 
            and Higgs, Iowa Workers' Compensation-Law and Practice, 
 
            section 17-1.
 
            
 
                 The Fund is responsible for the difference between 
 
            total disability and disability for which the employer at 
 
            the time of the second injury is responsible.  Section 
 
            85.64.  Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 
 
            1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 
 
            (Iowa 1970).
 
            
 
                 In response to claimant's claim for benefits, the 
 
            Second Injury Fund, hereinafter referred to as the Fund, 
 
            raises the affirmative defense of the statute of 
 
            limitations.
 
            
 
                 The statute of limitations provided by Iowa Code 
 
            section 85.26 is an affirmative defense and the burden of 
 
            proof rests on the defendant.  Smith v. French & Hecht, file 
 
            number 750419 (App. Decn. August 23, 1988).  Failing to 
 
            comply with a statute of limitations does not constitute a 
 
            failure to state a claim upon which relief may be granted.  
 
            It is not jurisdictional.  Mousel v. Bituminous Material & 
 
            Supply, 169 N.W.2d 763 (Iowa 1969); Secrest v. Galloway Co., 
 
            239 Iowa 168, 30 N.W.2d 293 (1948).
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 The normal rule with regard to statutes of limitations 
 
            is that a cause of action does not accrue and the statute 
 
            does not begin to run until such time as the injured party 
 
            has a right to institute suit and events have developed to 
 
            the point that the injured party is entitled to a remedy.  
 
            Stoller Fisheries, Inc. v. American Title Insurance Co., 
 
            258 N.W.2d 336 (Iowa 1977); Chrischilles v. Griswold, 260 
 
            Iowa 453, 150 N.W.2d 94 (1967); Ward v. Meredith, 186 Iowa 
 
            1108; 173 N.W. 246 (1919).  Statutes of limitations are not 
 
            favored.  When two possible interpretations can be applied, 
 
            the one giving the longer period to a litigant seeking 
 
            relief is to be preferred.  Sprung v. Rasmussen, 180 N.W.2d 
 
            430, 433 (Iowa 1970).
 
            
 
                 The Second Injury Compensation Act is found at Iowa 
 
            Code sections 85.63 through 85.69.  Those sections of the 
 
            Iowa Code do not provide any particular statute of 
 
            limitations for claims against the Second Injury Fund of 
 
            Iowa.  Section 85.64 provides, however, that in addition to 
 
            the permanent partial disability payable by the employer, ". 
 
            . . and after the expiration of the full period provided by 
 
            law for the payments thereof by the employer, ..." that the 
 
            employee shall then be paid from the Second Injury Fund the 
 
            remainder of the compensation which is payable under the 
 
            Second Injury Compensation Act.
 
            
 
                 Iowa Code section 85.26(1) makes no distinction between 
 
            employers or the Second Injury Fund.  It would serve no 
 
            useful purpose to require an injured individual to make a 
 
            claim against the Second Injury Fund at a time when the 
 
            individual's employer is still paying weekly compensation 
 
            and when the extent of permanent disability might not yet be 
 
            determinable.  In fact, this agency has taken it upon itself 
 
            to involuntarily dismiss claims made by individuals when the 
 
            employer is voluntarily making payments and the individual 
 
            has been paid all benefits which have become due and payable 
 
            under the controlling statutes.
 
            
 
                 It is concluded that the provisions of Iowa Code 
 
            section 85.26(1), in particular the provision that a claim 
 
            may be made within three years from the last date of payment 
 
            of weekly compensation, applies as the controlling statute 
 
            of limitations regardless of whether the claim is made 
 
            against the employer or against the Second Injury Fund of 
 
            Iowa.  In this instance, claimant has timely filed his claim 
 
            against the Second Injury Fund.
 
            
 
                 The next defense raised by the Fund is that the injury 
 
            to the shoulder does not qualify as a first injury under 
 
            Iowa Code section 85.64.  That section provides that:
 
            
 
                    If an employee who has previously lost, or lost 
 
                 the use of, one hand, one arm, one foot, one leg, 
 
                 or one eye, becomes permanently disabled by a 
 
                 compensable injury which has resulted in the loss 
 
                 of or loss of use of another such member or organ, 
 
                 the employer shall be liable only for the degree 
 
                 of disability which would have resulted from the 
 
                 latter injury if there had been no pre-existing 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 disability.  In addition to such compensation, and 
 
                 after the expiration of the full period provided 
 
                 by law for the payments thereof by the employer, 
 
                 the employee shall be paid out of the "Second 
 
                 Injury Fund" created by this division the 
 
                 remainder of such compensation as would be payable 
 
                 for the degree of permanent disability involved 
 
                 after first deducting from such remainder the 
 
                 compensable value of the previously lost member or 
 
                 organ.
 
            
 
                    Any benefits received by any such employee, or 
 
                 to which the employee may be entitled, by reason 
 
                 of such increased disability from any state or 
 
                 federal fund or agency, to which said employee has 
 
                 not directly contributed, shall be regarded as a 
 
                 credit to any award made against said second 
 
                 injury fund as aforesaid.
 
            
 
                 While a shoulder injury is an injury to the body as a 
 
            whole, Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 
 
            N.W.2d 161 (1949), an injury to the shoulder affects the use 
 
            of the arm.  If there is a loss of the use of the arm, then 
 
            a shoulder injury is subject to the provisions of section 
 
            85.64.
 
            
 
                 Here claimant's shoulder injury affected claimant's use 
 
            of his left arm.  Dr. Anderson noted that claimant had 
 
            restricted motion of his left arm.  Mr. Bower likewise noted 
 
            a loss in the range of motion of the left upper extremity.  
 
            The original injury relates back to 1979.  Claimant's loss 
 
            of the use of the arm is permanent.  Injury one qualifies as 
 
            an injury covered by the Fund.
 
            
 
                 The next defense raised by the Fund is that the second 
 
            injury is a loss of the use of the fingers not the loss of 
 
            use of the hand or of the arm.  Therefore, the Fund is not 
 
            liable for benefits under section 85.64.  During the 
 
            hearing, claimant testified he could not move the little 
 
            finger on his right hand.  He could not make a fist to hold 
 
            objects.  Dr. Reagan opined there was limitation of motion 
 
            of all fingers but that the 10 percent impairment was based 
 
            solely on the rupture of the little finger tendon.  Mr. 
 
            Bower, likewise, found no loss of range of motion to the 
 
            wrist.  He attributed claimant's loss to the loss of range 
 
            of motion of the four fingers on the right hand.  Only Dr. 
 
            Anderson found an impairment to the wrist.  However, his 
 
            finding is inconsistent with the histories provided by 
 
            claimant.  Claimant indicated he has no complaints in other 
 
            areas.
 
            
 
                 The evidence is overwhelming.  Any functional loss here 
 
            is a loss to the use of claimant's fingers and not a loss to 
 
            the use of claimant's hand or arm.  Consequently, claimant 
 
            has not sustained a loss to the hand or arm which would 
 
            qualify the second injury as an injury under the Second 
 
            Injury Fund Act.  For a similar holding and rational see:  
 
            William Gilbert v. Second Injury Fund, file number 826659 
 
            (Arbitration Decision August 16, 1990).
 
            
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants, Jimmy Dean Meats and Fireman's Fund 
 
            Insurance, are to pay seventy-seven point five (77.5) weeks 
 
            of permanent partial disability benefits at the rate of two 
 
            hundred seventy and 23/100 dollars ($270.23) per week from 
 
            October 29, 1984.
 
            
 
                 Defendants shall receive credit for all benefits 
 
            previously paid and not credited.
 
            
 
                 Interest shall be paid pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 Costs of this action shall be assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file a claim activity report as 
 
            requested by this rule 343 IAC 3.1.
 
            
 
     
 
            
 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          MICHELLE A. MCGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Charles E Cutler
 
            Attorney at Law
 
            729 Ins Exchange Bldg
 
            Des Moines Iowa 50309
 
            
 
            Ms Dorothy L Kelley
 
            Attorney at Law
 
            500 Liberty Bldg
 
            Des Moines Iowa 50309
 
            
 
            Mr Greg Knoploh
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg
 
            Des Moines Iowa 50319
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      5-1803.1; 2400; 3200; 3202
 
                      Filed March 19, 1991
 
                      MICHELLE A. MCGOVERN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DALE FUGIT,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 762290
 
            JIMMY DEAN MEAT COMPANY, :
 
                      :    A R B I T R A T I O N
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            FIREMAN'S FUND INSURANCE :
 
            COMPANIES,     :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            5-1803.1
 
            Claimant sustained a 31 percent impairment to the right 
 
            upper extremity.
 
            
 
            2400; 3200; 3202
 
            The provisions of Iowa Code section 85.26(1), in particular 
 
            the provision that a claim may be made within three years 
 
            from the last date of payment of weekly compensation, 
 
            applies as the controlling statute of limitations regardless 
 
            of whether the claim is made against the employer or against 
 
            the Second Injury Fund of Iowa.
 
            
 
            3200; 3202
 
            Claimant's left shoulder injury qualified as an injury under 
 
            the Second Injury Fund Act because the injury to the 
 
            shoulder affected the use of the arm.  Here claimant's 
 
            shoulder affected claimant's use of his left arm.
 
            
 
            3200; 3202
 
            Claimant did not sustain a second injury under the Second 
 
            Injury Fund Act because the injury only affected the loss of 
 
            use of the fingers.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ANGIE (LEAVENGOOD) WILLS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                              File  Nos.  762617
 
         ROLSCREEN COMPANY,                              851749
 
         
 
                Employer,                     A R B I T R A T I 0 N
 
         
 
          and                                   D E C I S I 0 N
 
         
 
          EMPLOYERS MUTUAL COMPANIES,
 
         
 
              Insurance Carrier,
 
         
 
          and
 
         
 
          SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This decision involved two proceedings in arbitration 
 
         brought by Angie Leavengood Wills against her former employer, 
 
         Rolscreen Company, and its insurance carrier, Employers Mutual 
 
         Companies.  Wills also makes claim against the Second Injury Fund 
 
         of Iowa.
 
         
 
              The case was heard and fully submitted at Des Moines, Iowa 
 
         on December 13, 1988.  The record in this proceeding consists of 
 
         testimony from Angie Leavengood Wills, Gary Orr and Jeff Ruiter.  
 
         The record also contains joint exhibits 1 through 29.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties include: Whether 
 
         claimant sustained injury which arose out of and in the course of 
 
         employment on or about September 2, 1983, September 4, 1984 and 
 
         June 4, 1987.  The actual dates of occurrence of the alleged 
 
         injuries are an issue to be determined.
 
         
 
              With regard to each of the two alleged injuries, an issue 
 
         exists regarding whether any permanent disability resulted, but 
 
         it was stipulated between the claimant and employer that if 
 
         either or both of the alleged injuries produced any permanent 
 
         disability, it should be compensated as a scheduled member 
 
         disability of the arm.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         LEAVENGOOD-WILLS V. ROLSCREEN COMPANY
 
         Page 2
 
         
 
         
 
              The rate of compensation for each injury is dependent upon 
 
         the date of occurrence of injury and is therefore an issue in 
 
         each case.
 
         
 
              Claimant makes no claim for additional temporary total 
 
         disability or healing period compensation for either of the 
 
         alleged injuries.
 
         
 
              Claimant seeks benefits from the Second Injury Fund of Iowa 
 
         and her entitlement, if any, must be determined.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed.  
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Angie Leavengood Wills is a 24-year-old married woman who 
 
         graduated from Melcher-Dallas High School in May, 1982.  
 
         Following high school, she worked at a Hardee's restaurant, 
 
         initially as a waitress and then as a supervisor.  Wills 
 
         commenced employment with Rolscreen Company on August 8, 1983.  
 
         She married her husband, Jay, on February 15, 1986 and their 
 
         child was born October 29, 1987.  Wills testified that she had no 
 
         problems with her hands or arms when she commenced employment at 
 
         Rolscreen and that her general health was excellent at that time.  
 
         While in high school, she participated in track, cheerleading and 
 
         other sports.. She described her grades as consisting of "B's" 
 
         and "C'S".
 
         
 
              Wills testified that she started work at Rolscreen as a chop 
 
         saw operator and worked approximately 45 hours per week.  The job 
 
         consisted of cutting a 15-foot board into approximately eight 
 
         smaller pieces.  The job required turning and moving the board 
 
         about in order to cut it properly.  Claimant stated that the saw 
 
         could be operated with either hand, but that she used her left 
 
         hand more than her right when flipping the boards.  Exhibit 18 
 
         shows that, on September 12, 1983, claimant contacted the 
 
         Rolscreen nurse complaining about her wrist.  The exhibit 
 
         indicates that it was claimant's right wrist, but claimant 
 
         disputed that at hearing saying that it was her left which had 
 
         bothered her in 1983, not the right.  All the 1983 entries in 
 
         exhibit 18 made subsequent to September 14, 1983 refer to the 
 
         left wrist or forearm, rather than the right.
 
         
 
              Exhibit 11 at page 6 indicates that claimant was initially 
 
         seen by John Kanis, D.O., on January 13, 1984.  He felt that she 
 
         had tendonitis of her left forearm.  Thereafter, Dr. Kanis 
 
         referred claimant to various physicians.  Dr. Kanis worked with 
 
         the employer regarding jobs which would fit within claimant's
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LEAVENGOOD-WILLS V. ROLSCREEN COMPANY 
 
         Page 3
 
         
 
         
 
         medical restrictions.  Dr. Kanis indicated on November 21, 1988 
 
         that he does not perform impairment rating evaluations (exhibit 
 
         11).
 
         
 
              Dr. Kanis had initially referred claimant to Donald Berg, 
 
         M.D., who on February 29, 1984 diagnosed claimant as having 
 
         tendonitis and inflammation of a muscle of her left forearm 
 
         (exhibit 6, page 1).  (It should be noted that the report should 
 
         be dated 1984, rather than 1983.) Claimant also saw Dr. Benford 
 
         who diagnosed claimant as having overuse syndrome of her left 
 
         forearm (exhibit 6, page 2).
 
         
 
              Claimant was referred to Arnis B. Grundberg, M.D., a Des 
 
         Moines, Iowa orthopaedic surgeon who specializes in surgery of 
 
         the hand and arm.  Dr. Grundberg diagnosed claimant as having an 
 
         intersection syndrome of the left wrist, a tendonitis type of 
 
         affliction.  Since the conservative treatment which the previous 
 
         physicians had provided was not successful in resolving 
 
         claimant's complaints, Dr. Grundberg recommended surgery.  On 
 
         September 5, 1988, he performed a decompression of intersection 
 
         syndrome in claimant's left distal forearm.  When claimant was 
 
         seen on October 19, 1984, she was noted to be improving and was 
 
         released to return to work effective October 29, 1984.  A note 
 
         dated January 18, 1985 indicates that she was doing much better.
 
         
 
              Claimant returned to Dr. Grundberg, however, on October 24, 
 
         1985 at which time she indicated that the surgery had not 
 
         completely resolved her pain and that it had been worsening 
 
         recently.  She also reported that her right hand had been 
 
         bothering her for several months.  Dr. Grundberg suspected carpal 
 
         tunnel or cubital tunnel syndrome, but EMG and nerve conduction 
 
         velocity studies showed no abnormalities (exhibit 10; exhibit 8, 
 
         page 6).  Dr. Grundberg approved claimant to work as a glue 
 
         technician.  Following that visit of February 4, 1986, claimant 
 
         did not, return to Dr. Grundberg until September, 1988 when she 
 
         returned for further evaluation.  At that time, Dr. Grundberg 
 
         again ordered electrical studies which were interpreted as being 
 
         normal.  He was unable to identify the precise cause of her 
 
         problems, but suggested a cortisone injection.  No further 
 
         treatment followed (exhibit 10, page 6; exhibit 8, page 5).  The 
 
         notes from Dr. Grundberg's surgery indicate that the synovium was 
 
         found to be three times the normal thickness (exhibit 10, page 
 
         8)..
 
         
 
              Claimant saw J. E. Griffin, M.D., during April of 1984.  He 
 
         felt that she had tendonitis of her left forearm and recommended 
 
         that she be off work.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant was seen by Jerome G. Bashara, M.D., on April 4, 
 
         1984.  Dr. Bashara diagnosed her as having deQuervain's disease 
 
         of the left wrist with a small nodule in her extensor tendon.  
 
         His records indicate that she demonstrated swelling over the 
 
         first dorsal compartment, radial aspect, of the left forearm.
 
         
 
         
 
         
 
         LEAVENGOOD-WILLS V. ROLSCREEN COMPANY
 
         Page 4
 
         
 
         
 
              In mid-1976, claimant was seen by Scott B. Neff, D.O. Dr. 
 
         Neff diagnosed claimant as having subjective soreness, but no 
 
         actual permanent impairment (exhibit 3).
 
         
 
              Claimant was referred to Theodore W. Rooney, D.O., who 
 
         diagnosed claimant as having chronic extensor tendonitis and 
 
         deQuervain's tendonitis of both thumbs.  He treated claimant with 
 
         splints to prevent motion of her wrists and also took her off 
 
         work.  Dr. Rooney followed claimant's course from July 30, 1986 
 
         through November 10, 1986.  His final records indicate that 
 
         claimant had bilateral lateral epiconodylitis which has improved, 
 
         polyarthralgias without defined inflammatory arthritis, and 
 
         multiple periarticular complaints which he felt were probably 
 
         produced by repetitive strain.  Dr. Rooney left claimant with a 
 
         20-pound weight restriction and also a recommendation that she 
 
         avoid repetitive lifting at or above the level of her shoulders 
 
         for the following four weeks.
 
         
 
              On June 24, 1987, claimant was evaluated by William F. 
 
         Blair, M.D., an orthopaedic surgeon in the Division of Hand and 
 
         Microsurgery at the University of Iowa Hospitals and Clinics.  
 
         Dr. Blair was unable to find any objective evidence of 
 
         physiological abnormalities.  He did diagnose claimant as having 
 
         bilateral upper extremity overuse syndrome which he felt was work 
 
         related.  He rated her as having a three percent impairment of 
 
         her left arm and an eight percent impairment of her right arm, 
 
         based almost exclusively on her symptoms and complaints.  Dr. 
 
         Blair recommended that she obtain retraining.
 
         
 
              At various times, Wills described her symptoms as an aching 
 
         or cramping.  Despite the fact that Dr. Blair rated claimant's 
 
         left hand as being less symptomatic than her right, claimant in 
 
         her testimony indicated that the left hand was more symptomatic 
 
         than the right (exhibit 27, page 77).
 
         
 
              From the onset of claimant's complaints until June 4, 1987 
 
         when her employment was terminated, Rolscreen Company assigned 
 
         claimant to a number of different positions in an attempt to find 
 
         a position that was comfortable for her.  The employer's notes 
 
         show an entry on November 26, 1984 followed by an entry on 
 
         September 10, 1985.  This span of approximately ten months seems 
 
         to have been the least troublesome for claimant.  The only other 
 
         job which she performed was a short-term position as a 
 
         receptionist.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Since leaving employment in mid-1987, claimant has sought a 
 
         job as a receptionist in a beauty shop.
 
         
 
              Claimant testified that the problems with her hands and arms 
 
         prevent her from doing much of what would be considered as normal 
 
         housework and that her husband and his grandmother who lives with 
 
         them perform a great deal of the domestic tasks in their home.
 
         
 
         
 
         
 
         LEAVENGOOD-WILLS V. ROLSCREEN COMPANY
 
         Page 5
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received injuries which arose out of and in the 
 
         course of her employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant alleges two injuries, both occurring as a result of 
 
         cumulative trauma.  Under the appropriate precedent, the date of 
 
         occurrence of injury is the date when the condition becomes 
 
         disabling.  McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
         (Iowa 1985).
 
         
 
              Essentially all of the physicians who have evaluated or 
 
         examined claimant found her to be afflicted with some type of 
 
         tendonitis or overuse syndrome.  The nature of claimant's work is 
 
         consistent with a diagnosis of that nature.  It is therefore 
 
         found that claimant did sustain an injury to each of her arms 
 
         which arose out of and in the course of her employment with 
 
         Rolscreen Company.  The injury date for the left arm is April 19, 
 
         1984 while the injury date for the right arm is July 31, 1986.  
 
         Both injury dates are determined by the first day that the 
 
         condition caused claimant to miss work due to disability produced 
 
         by the condition.
 
         
 
              None of the physicians have found any concrete objective 
 
         basis for assigning a rating of permanent impairment.  Dr. Blair 
 
         assigned a rating, but the rating was based almost exclusively on 
 
         claimant's complaints.  Interestingly, while the complaints and 
 
         examination made by Dr. Blair showed claimant's right hand to be 
 
         more impaired than the left, claimant's own testimony states that 
 
         her left arm is the more severely impaired.  It is not, however, 
 
         completely accurate to state that claimant had no objective 
 
         evidence of a physiological problem.  Different physicians have 
 
         noted swelling and nodules.  When Dr. Grundberg performed 
 
         surgery, he found the synovium to be thickened to three times its 
 
         normal thickness.  These are all objective evidence of a genuine 
 
         physiological problem.  One of the things which makes overuse 
 
         syndrome or repetitive trauma conditions so difficult to deal 
 
         with is that the objective findings are often minimal.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              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).
 
         
 
              Where an injury is limited to a scheduled member, the loss 
 
         is measured functionally, not industrially.  Graves v.
 
         
 
         
 
         
 
         LEAVENGOOD-WILLS V. ROLSCREEN COMPANY 
 
         Page 6
 
         
 
         
 
         Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983).  In view of the 
 
         ratings of Dr. Blair, claimant's testimony regarding which 
 
         extremity was more symptomatic and the lack of any clear-cut 
 
         objective evidence of physical impairment, it is determined that 
 
         claimant has a five percent permanent partial impairment of each 
 
         arm, the left as a result of the April 19, 1984 injury and the 
 
         right as a result of the July 31, 1986 injury.
 
         
 
              The issue regarding claimant's rate of compensation is 
 
         correctly set forth in the employer's brief.  The rate for the 
 
         April 19, 1984 injury is therefore determined to be $212.14 while 
 
         the rate for the July 31, 1986 injury is determined to be 
 
         $246.94.
 
         
 
              Claimant seeks compensation from the Second Injury Fund of 
 
         Iowa.  Her disability must therefore be evaluated industrially, 
 
         rather than strictly from a scheduled member standpoint.
 
         
 
              Industrial disability was defined in Diederich v. Tri-City 
 
         Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as 
 
         follows: "It is therefore plain that the legislature intended the 
 
         term 'disability' to mean 'industrial disability' or loss of 
 
         earning capacity and not a mere 'functional disability' to be 
 
         computed in the terms of percentages of the total physical and 
 
         mental ability of a normal man."
 
         
 
              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. Good.Year Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity 
 
         an element of damage in a tort case.impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Law, sections 57.21 and 57.31.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has not made a bona fide effort to seek employment.  
 
         The fact that she became symptomatic so soon after commencing 
 
         employment with the Rolscreen Company is an indication that she 
 
         did not have the physical capacity to perform the type
 
         
 
         
 
         
 
         LEAVENGOOD-WILLS V. ROLSCREEN COMPANY 
 
         Page 7
 
         
 
         
 
         of work provided at Rolscreen Company.  She testified, however, 
 
         that she typed for two years while she was in high school.  From 
 
         the record, it is unclear as to whether she retains the 
 
         capability of typing in a workplace setting.  In the early years 
 
         of claimant's physical problems at Rolscreen, she consistently 
 
         improved when taken off work by her treating physicians.  Her 
 
         testimony, however, is that since her employment was terminated 
 
         in 1987, her condition has remained essentially unchanged and has 
 
         not improved.  This would seem somewhat unusual since most 
 
         overuse syndromes usually become less symptomatic when the 
 
         aggravating activity is discontinued.  There is sufficient 
 
         credible evidence in the record of this case to determine that 
 
         claimant is afflicted with an overuse syndrome of some nature.  
 
         The fact that she is afflicted with the condition limits her 
 
         access to certain occupations.  Claimant's symptoms are, however, 
 
         far out of proportion to the findings made by any of the medical 
 
         practitioners who have examined her.  Accordingly, the findings 
 
         from the medical practitioners are given more weight than 
 
         claimant's complaints.
 
         
 
              When all the appropriate factors of industrial disability 
 
         are considered, it is determined that Angie Leavengood Wills 
 
         exhibits a ten percent loss of earning capacity, or industrial 
 
         disability, as a result of the disabilities affecting her arms.  
 
         The compensable value of each such disability under the scheduled 
 
         member system is 12.5 weeks.  This leaves a remainder of 25 weeks 
 
         of permanent partial disability compensation which is the 
 
         responsibility of the Second Injury Fund of Iowa.  Second Injury 
 
         Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989); Iowa Code section 
 
         85.64.
 
         
 
              Under the. provisions of Code section 85.30, interest is to 
 
         be paid on weekly compensation which was not paid at the time it 
 
         was due.   Compensation for permanent partial disability 
 
         commences at the end of the healing period.  Code section 
 
         85.34(2); Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).  While no 
 
         claim was made for additional temporary total disability or 
 
         healing period, the record does not contain a stipulation as to 
 
         the dates of any such recuperation periods or as to the 
 
         commencement for permanent partial disability compensation.  It 
 
         is therefore determined that the permanent partial disability 
 
         compensation relative to the April 19, 1984 injury to claimant's 
 
         left arm is payable commencing with her return to work on October 
 
         29, 1984.  With regard to the right arm and the July 31, 1986 
 
         injury, it is determined the permanent partial disability 
 
         compensation is payable commencing June 5, 1987, the day after 
 
         the last day that claimant actually worked for the employer.  The 
 
         25 weeks of compensation payable by the Fund therefore commences 
 
         September 1, 1987.  The amounts payable by the employer are 
 
         subject to interest from the date each payment came due until the 
 
         date of actual payment.  The Second Injury Fund is not liable for 
 
         payment of preaward interest.  Braden v. Big "W" Welding Service, 
 
         file number 785744, (App.  Decn.  October 28, 1988).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         LEAVENGOOD-WILLS V. ROLSCREEN COMPANY
 
         Page 3
 
         
 
         
 
              The Second Injury Fund had argued that claimant's condition, 
 
         if compensable, is an occupational disease rather than an injury.  
 
         While there is ample precedent and logic to support the argument, 
 
         it is rejected for the same reasons as given by the commissioner 
 
         in the case Peters v. Lamoni Auto Assemblies, Inc., file number 
 
         809203, (App. Decn. March 31, 1989).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Angie Leavengood Wills sustained a cumulative trauma or 
 
         overuse syndrome type of injury to her left arm as a result of 
 
         the activities she performed in her employment at Rolscreen 
 
         Company, which injury became disabling on April 19, 1984.
 
         
 
              2. Angie Leavengood Wills sustained an injury from 
 
         cumulative trauma in the nature of overuse syndrome to her right 
 
         arm as a result of activities she performed in her employment 
 
         with Rolscreen Company, which injury became disabling on July 31,
 
         1986.
 
         
 
              3. As a result of those injuries, claimant has a residual 
 
         five percent impairment of each arm.
 
         
 
              4. The injuries occurred separately and were not a result of 
 
         the same accident.
 
         
 
              5.Claimant's complaints regarding her symptoms are greatly 
 
         out of proportion to any abnormalities identified by the medical 
 
         practitioners who have treated or examined her.
 
         
 
              6. Claimant has sustained a ten percent loss of her earning 
 
         capacity as a result of the limitations affecting her arms.
 
         
 
              7.The fact that claimant had permanent impairment as a 
 
         result of the injuries to her arms was apparent at the end of the 
 
         healing period on October 29, 1984 with regard to the 1984 injury 
 
         and at the time when claimant's employment was terminated on June 
 
         4, 1987 following the 1986 injury.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2. The injury which claimant sustained to each of her arms 
 
         arose out of and in the course of her employment with Rolscreen 
 
         Company.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              3. Claimant has a five percent permanent impairment of her 
 
         left arm as a result of the April 19, 1984 injury which entitles 
 
         her to receive 12.5 weeks of permanent partial disability 
 
         compensation under the provisions of Code section 84.34(2)(m).
 
         
 
         
 
         
 
         LEAVENGOOD-WILLS V. ROLSCREEN COMPANY
 
         Page 9
 
         
 
         
 
              4. Claimant has a five percent permanent partial disability 
 
         of her right arm as a result of the July 31, 1986 injury which 
 
         entitles her to receive 12.5 weeks of compensation under the 
 
         provisions of Code section 85.34(2)(m).
 
         
 
              5. Claimant's rate of compensation for the April 19, 1984 
 
         injury is $212.14 per week under the provisions of Code section 
 
         85.36(6).
 
         
 
              6.Claimant's rate of compensation for the July 31, 1986 
 
         injury is $246.94 per week under the provisions of Code section 
 
         85.36(6).
 
         
 
              7. Claimant has sustained a ten percent loss of earning 
 
         capacity which entitles her to receive 50 weeks of permanent 
 
         partial disability compensation under the provisions of Code 
 
         section 85.34(2)(u).
 
         
 
              8. When the compensable value of the two scheduled 
 
         disabilities is deducted, the Second Injury Fund of Iowa is 
 
         responsible to pay 35 weeks of compensation to claimant under the 
 
         provisions of Code section 85.64.
 
         
 
              9. The employer's obligation to pay permanent partial 
 
         disability for the 1984.injury commences October 29, 1984 while 
 
         the obligation to pay for the 1986 injury commences June 5, 1987.
 
         
 
              10.The Second Injury Fund's payments were due commencing 
 
         September 1, 1987.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that Rolscreen Company pay claimant 
 
         twelve point five (12.5) weeks of compensation for permanent 
 
         partial disability at the rate of two hundred twelve and 14/100 
 
         dollars ($212.14) per week payable commencing October 29, 1984 as 
 
         a result of the April 19, 1984 injury as reflected by file number 
 
         762617.
 
         
 
              IT IS FURTHER ORDERED that Rolscreen Company pay claimant 
 
         twelve point five (12.5) weeks of compensation for permanent 
 
         partial disability at the rate of two hundred forty-six and 
 
         94/100 dollars ($246.94) per week payable commencing June 5, 1987 
 
         based upon the July 31, 1986 injury as reflected by file number 
 
         851749.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              IT IS FURTHER ORDERED that the Second Injury Fund of Iowa 
 
         pay claimant twenty-five (25) weeks of compensation for 
 
         permanent. partial disability at the rate of two hundred 
 
         forty-six and 94/100 dollars ($246.94) per week payable 
 
         commencing September 1, 1987.
 
         
 
         
 
         
 
         LEAVENGOOD-WILLS V. ROLSCREEN COMPANY
 
         Page 10
 
         
 
         
 
              IT IS FURTHER ORDERED that the employer pay all past due 
 
         amounts in a lump sum together with interest from the date each 
 
         payment came due until the date of actual payment at the rate of 
 
         ten percent (10%) per annum pursuant to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that the Second Injury Fund of Iowa 
 
         pay the entire amount in a lump sum payable on the date of this 
 
         decision.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against the employer pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              IT IS FURTHER ORDERED that these cases be assigned for 
 
         prehearing on the Code Section 86.13 penalty claims against the 
 
         employer.
 
         
 
              Signed and filed this 26th day of July, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G: TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Donald G. Beattie
 
         Attorney at Law
 
         204 8th Street SE
 
         Altoona, Iowa 50009
 
         
 
         Mr. Cecil L. Goettsch
 
         Attorney at Law
 
         1100 Des Moines Building
 
         Des Moines, Iowa 50309
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa 50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1402.40, 2209, 3202
 
                                         Filed July 26, 1989
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ANGIE (LEAVENGOOD) WILLS,
 
          
 
                Claimant,
 
          
 
          VS.
 
                                         File  Nos.  762617
 
          ROLSCREEN COMPANY,                         851749
 
          
 
                Employer,                A R B I T R A T I 0 N
 
          
 
          and                              D E C I S I 0 N
 
          
 
          EMPLOYERS MUTUAL COMPANIES,
 
          
 
                Insurance Carrier,
 
          
 
          and
 
          
 
          SECOND INJURY FUND OF IOWA,
 
          
 
                Defendants.
 
         
 
         
 
         1402.40, 2209
 
         
 
              Claimant developed bilateral overuse syndrome in each of her 
 
         arms.  While physicians had observed swelling and other changes 
 
         during the course of treatment, there was no objective evidence 
 
         of permanent impairment, only claimant's subjective complaints.  
 
         The complaints were held to be out of proportion to the findings 
 
         of the physicians, but claimant was awarded five percent 
 
         permanent partial disability of each arm.
 
         
 
         3202
 
         
 
              While claimant's complaints were out of proportion to the 
 
         objective findings, it was found that she did have some 
 
         impairment and that her earning capacity was reduced by ten 
 
         percent.  Second Injury Fund held responsible for payment of 25 
 
         weeks of permanent partial disability following the total of 25 
 
         weeks payable by the employer.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                                      1402.40, 2209, 3202
 
                                                      Filed July 26, 1989
 
                                                      MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ANGIE (LEAVENGOOD) WILLS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                        File  Nos. 762617
 
         ROLSCREEN COMPANY,                                
 
                                                                  851749
 
         
 
              Employer,                              A R B I T R A T I 0 N
 
         
 
         and                                            D E C I S I 0 N
 
         
 
         EMPLOYERS MUTUAL COMPANIES,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         1402.40, 2209
 
         
 
              Claimant developed bilateral overuse syndrome in each of her 
 
         arms.  While physicians had observed swelling and other changes 
 
         during the course of treatment, there was no objective evidence 
 
         of permanent impairment, only claimant's subjective complaints.  
 
         The complaints were held to be out of proportion to the findings 
 
         of the physicians, but claimant was awarded five percent 
 
         permanent partial disability of each arm.
 
         
 
         3202
 
         
 
              While claimant's complaints were out of proportion to the 
 
         objective findings, it was found that she did have some 
 
         impairment and that her earning capacity was reduced by ten 
 
         percent.  Second Injury Fund held responsible for payment of 25 
 
         weeks of permanent partial disability following the total of 25 
 
         weeks payable by the employer.