BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS MOCKENHAUPT,
 
         
 
              Claimant,                           File Nos. 767982/847923
 
                                                            847924/847925
 
         vs.
 
                                                        A P P E A L
 
         GEORGE A. HORMEL CO.,
 
                                                      D E C I S I O N
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        DEC 29 1989
 
         LIBERTY MUTUAL INSURANCE CO.,
 
                                               IOWA INDUSTRIAL 
 
         COMMISSIONER
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Second Injury Fund of Iowa and defendant employer 
 
         (hereinafter employer) appeals from an arbitration decision 
 
         awarding permanent partial disability benefits and Second Injury 
 
         Fund benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 and 2 and 4 through 
 
         18; and defendants' exhibits D-1 through D-7.  The Second Injury 
 
         Fund, the employer, and the claimant filed briefs on appeal.
 
         
 
                                   ISSUES
 
         
 
              The issues on appeal are the Second Injury Fund liability, 
 
         if any, and the nature and extent of claimant's alleged 
 
         disability resulting from a work injury on April 27, 1987.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision filed October 31, 1988 adequately 
 
         and accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.  Additional evidence necessary for the 
 
         analysis and the findings of fact will be discussed as 
 
         appropriate.
 
         
 
                             APPLICABLE LAW
 
                                                       
 
                                                                
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.  The following additional 
 
         citation is also appropriate.
 
         
 
              The Iowa Supreme Court most recently discussed the liability 
 
         of the Second Injury Fund in Second Injury Fund v. Neelans, 436 
 
         N.W.2d 355 (Iowa 1989).  The court stated at 358:
 
         
 
                   The language of the second injury act supports this 
 
              conclusion by providing that "[t]he employer shall be liable 
 
              only for the degree of disability which would have resulted 
 
              from the latter injury if there had been no pre-existing 
 
              disability."  To hold otherwise would in effect penalize the 
 
              employer who hired a person with a prior injury.  The 
 
              purpose of Second Injury Fund statutes was to provide a more 
 
              favorable climate for the employment of persons injured 
 
              through service in World War II.  Jackwig, The Second Injury 
 
              Fund of Iowa:  How Complex Can a Simple Concept Become?, 28 
 
              Drake L.Rev. 889, 890-91 (1979).  Similar considerations 
 
              still weigh heavily in our interpretation of the second 
 
              injury act.  See, e.g., Anderson v. Second Injury Fund, 262 
 
              N.W.2d 789, 791-92 (Iowa 1978)(purpose to encourage 
 
              employers to hire handicapped workers).
 
         
 
                   In the present case, there seems to be no argument 
 
              about the extent of the second injury standing alone:  it is 
 
              a scheduled injury which does not extend to the body as a 
 
              whole, even though the cumulative effect of this injury and 
 
              the prior injuries was to cause such disability.
 
         
 
                   In this case, if it had not been for the prior injuries 
 
              sustained by Neelans, the employer would be liable only to 
 
              the extent provided by the schedule for a leg injury.  To 
 
              hold that the present employer would be liable for payment 
 
              of a greater amount as a result of the preexisting injuries 
 
              would be inconsistent with the purpose and language of the 
 
              statute.
 
         
 
                   The industrial commissioner correctly ruled that the 
 
              Second Injury Fund should be responsible for the industrial 
 
              disability, less the total of the scheduled injuries, or a 
 
              total of 262 weeks.  Accordingly, we reverse and remand for 
 
              reinstatement of the order by the commissioner.
 
         
 
                                  ANALYSIS
 
         
 
              Several issues raised by the Second Injury Fund can be dealt 
 
         with summarily.  Under the holding in Neelans, 436 N.W.2d 355, 
 
         the Second Injury Fund is liable for the cumulative industrial 
 
         disability less the total of the scheduled injuries.  (In 
 
         fairness to the Second Injury Fund, it should be noted that the 
 
         Second Injury Fund's appeal brief was filed prior to the Neelans 
 
         decision.)
 
         
 
                                                       
 
                                                                
 
              The Second Injury Fund correctly notes that it is not liable 
 
         for interest on unpaid compensation benefits.  See Braden v. Big 
 
         "W" Welding Service, (Appeal Decision, October 28, 1988).  An 
 
         employer may be ordered to pay interest on unpaid compensation 
 
         pursuant to Iowa Code section 85.30.  Sections 85.63 through 
 
         85.69 are titled "Second Injury Compensation Act."  Those 
 
         sections do not specifically authorize interest on unpaid 
 
         compensation from the Second Injury Fund.
 
         
 
              In addition, the Second Injury Fund stands in a position 
 
         different from an employer in a workers' compensation case.  An 
 
         employer has knowledge of the injury fairly soon after it occurs, 
 
         whereas the Second Injury Fund may not know of the claimant's 
 
         injury until a substantial period of time has elapsed.  The 
 
         employer is in a position to investigate the injury and 
 
         ascertain, at an early point in time, the compensability of the 
 
         injury.  The Second Injury Fund is not able to conduct such an 
 
         investigation. An employer has some degree of control over the 
 
         length of time the case takes to be resolved, whereas the Second 
 
         Injury Fund has less control over the proceedings.  Section 85.66 
 
         of the Code states that money from the Second Injury Fund cannot 
 
         be disbursed except upon written order of the industrial 
 
         commissioner.  Thus, whereas an employer has the capacity to 
 
         settle a claim before a contested case proceeding is instituted, 
 
         the Second Injury Fund is not able to resolve a case without 
 
         involvement of the industrial commissioner after a petition has 
 
         been filed.  This necessarily contemplates a time lapse which 
 
         would unfairly subject the Second Injury Fund to interest on 
 
         compensation it could not have paid earlier.  The Second Injury 
 
         Fund will not be ordered to pay interest on the unpaid 
 
         compensation, but will be required to pay any amounts past due in 
 
         a lump sum.
 
         
 
              The Second Injury Fund asserts that the order of the 
 
         arbitration decision is unclear whether the assignment for the 
 
         bifurcated hearing on penalty pursuant to Iowa Code section 86.13 
 
         applies to the Second Injury Fund.  The Second Injury Fund, in 
 
         effect, argues that penalty is not applicable to it.  That 
 
         argument should be raised at the proceeding regarding the 
 
         imposition of the penalty.  The issue of whether a penalty can be 
 
         imposed against the Second Injury Fund was not decided by the 
 
         deputy and is not now properly before the industrial 
 
         commissioner. It should be noted that the industrial commissioner 
 
         is not bound by the arbitration decision cited by the Second 
 
         Injury Fund.  The issue can be decided in further proceedings, if 
 
         necessary.
 
         
 
              The Second Injury Fund raises another argument in its appeal 
 
         brief which, although not specifically addressed in Neelans, can 
 
         be disposed of here.  The Second Injury Fund argues that it is not 
 
         liable because claimant does not have a qualifying disability 
 
         because the injuries were not "substantial."  In Neelans, the 
 
         claimant had a ten percent impairment to the hand and a twenty 
 
         percent impairment to the leg.  The court found the Second Injury 
 
         Fund liable.  Second Injury Fund attempts to take the facts of 
 
                                                       
 
                                                                
 
         prior supreme court cases and make law applicable to all cases.  
 
         By doing so the Second Injury Fund attempts to modify the clear 
 
         language of the statute.  There is simply not good justification 
 
         to require, as the Second Injury Fund urges, that a claimant's 
 
         disability be "significant" or "substantial" in order for the 
 
         Second Injury Fund to incur liability.  This is particularly true 
 
         in light of the Neelans case in which the Second Injury Fund was 
 
         found to be liable in a case involving what could be characterized 
 
         as nonsignificant or nonsubstantial disabilities, namely scheduled 
 
         member disabilities of ten and twenty percent.  See also McCoy v. 
 
         Donaldson Company Inc., (Appeal Decision, April 28, 1989).
 
         
 
              Second Injury Fund also argues claimant is limited to 
 
         assertion of a first and second injury only and that only the 
 
         first two in time should be considered.  In this case the first 
 
         two in time are both to the left arm and under Second Injury 
 
         Fund's theory Second Injury Fund would not be liable.  While 
 
         Second Injury Fund argues that this is a perfectly valid defense 
 
         it cites no case law nor statute for the theory.  Second Injury 
 
         Fund's argument is at odds with the purpose of the Second Injury 
 
         Fund as enunciated in the Iowa courts, most recently in Neelans. 
 
         Second Injury Fund's argument simply does not make sense.  Why 
 
         should an employee who has had multiple injuries at various times 
 
         to the same enumerated scheduled member be denied Second Injury 
 
         Fund compensation whereas an employee whose "first injury" is a 
 
 
 
                 
 
                                                                
 
         single injury would receive benefits?  In addition, Second Injury 
 
         Fund's argument is inconsistent with the statute.  Iowa Code 
 
         section 85.64 enumerates five scheduled members (hand, arm, foot, 
 
         leg, or eye).  The statute clearly contemplates the possibility 
 
         of Second Injury Fund liability when an employee loses the use of 
 
         a hand, arm, foot, and leg in separate injuries and then loses 
 
         the use of an eye.  Simply stated, Iowa Code section 85.64 does 
 
         not limit Second Injury Fund liability to the first two injuries 
 
         in time.  See also Shank v. Mercy Hospital Medical Center, 
 
         (Appeal Decision, August 28, 1989) where the Second Injury Fund 
 
         was found to be liable to a claimant who had loss of use of both 
 
         eyes due to a congenital condition and later suffered a partial 
 
         loss of ten percent to the right leg.
 
         
 
              Second Injury Fund also argues that claimant's condition is 
 
         an occupational disease.  Second Injury Fund makes its arguments 
 
         without proving the facts necessary.  Second Injury Fund has not 
 
         proved that claimant's condition is an occupational disease.
 
         
 
              The last matter to be discussed is raised by both Second 
 
         Injury Fund and the employer.  The employer acquiesces to the 
 
         deputy's findings that claimant suffered left carpal tunnel 
 
         syndrome in 1984 and left ulnar nerve injury in 1986 and right 
 
         carpal tunnel syndrome in 1986.  Both the employer and the Second 
 
         Injury Fund assert that claimant has suffered no industrial 
 
         disability.  The starting point for determining the liability of 
 
         the Second Injury Fund and the employer is to summarize the 
 
         nature of claimant's injuries.  Claimant suffered carpal tunnel 
 
         syndrome of the left arm on June 21, 1984.  Claimant suffered 
 
         right carpal tunnel syndrome on July 2, 1986.  The injury dates 
 
         are determined under McKeever to be when claimant first missed 
 
         work for a compensable period of time because of the condition.  
 
         The first time claimant missed work for each of these conditions 
 
         is when he had surgery for the condition.  Claimant missed work 
 
         continuously from May 7, 1986 through August 22, 1986 (See 
 
         Exhibit 16). Claimant had surgery for the left ulnar condition on 
 
         May 7, 1986 and then without returning to work had surgery for 
 
         the right carpal tunnel syndrome on July 2, 1986.  The injury 
 
         date for claimant's right arm condition is July 2, 1986.  
 
         Claimant had problems relating to his neck as early as 1981.  
 
         Claimant eventually sought treatment from B. D. Lange, D.C., who 
 
         treated claimant and took claimant off work April 28, 1987 
 
         through June 10, 1987.  Dr. Lange's diagnosis was cervical 
 
         spondylosis C5-6 made symptomatic by chronic cervical thoracic 
 
         sprain.  Claimant's injury to his neck occurred on April 27, 
 
         1987.
 
         
 
              The next step in determining the liability of the Second 
 
         Injury Fund and the employer is to determine the nature and 
 
         extent of claimant's disabilities from each of the injuries.  
 
         Jerome Bashara, M.D., orthopedic surgeon, was claimant's treating 
 
         physician for the three surgeries to claimant's arms.  His 
 
         opinions as to impairment are based upon his extended care of 
 
         claimant.  His opinions as to the impairment for claimant's arms 
 
         is consistent with Thomas A. Carlstrom, M.D., neurosurgeon, who 
 
                                                       
 
                                                                
 
         agreed that the involved surgeries would result in impairment 
 
         ratings given by Dr. Bashara.  Dr. Bashara's ratings and causal 
 
         connections will be accepted.
 
         
 
              Claimant's work injuries of June 21, 1984 and May 7, 1986 
 
         were each the cause of a five percent loss of the use of the left 
 
         arm (total ten percent of the left arm).  Claimant's work injury 
 
         on July 2, 1986 was the cause of a five percent loss of use of 
 
         his right arm.  Claimant's work injury on April 27, 1987 is the 
 
         cause of eight percent permanent functional impairment of the 
 
         body as a whole.
 
         
 
              The Second Injury Fund became liable for payment of benefits 
 
         when claimant suffered a permanent loss to the second enumerated 
 
         scheduled member (the right arm) on July 2, 1986.  In order to 
 
         determine the amount of the liability of the Second Injury Fund 
 
         it is necessary to determine claimant's industrial disability at 
 
         that time.  Claimant had the impairments discussed above (ten 
 
         percent to the left arm and five percent to the right arm).  He 
 
         had returned to work with the same employer but was performing 
 
         different jobs than before the injuries.  It does not appear 
 
         claimant suffered any actual loss of earnings.  Claimant was born 
 
         July 5, 1950 and was 35 years old as of July 2, 1986.  Claimant 
 
         suggests that he will not be able to continue working for the 
 
         employer much longer.  Most medical personnel agree that claimant 
 
         cannot continue to do the type of work claimant has had with this 
 
         employer.  Claimant has a high school education.  There is 
 
         virtually no evidence shown to indicate claimant's potential for 
 
         vocational rehabilitation.  When all the relevant factors are 
 
         considered, claimant's cumulative industrial disability was 30 
 
         percent as a result of the injuries to his left and right arms. 
 
         The liability of the Second Injury Fund 112.5 weeks (.30 x 500) - 
 
         [(.10 x 250) + (.05 x 250)].
 
         
 
              It is also necessary to determine claimant's current 
 
         cumulative industrial disability to determine the employer's 
 
         liability as a result of the April 27, 1987 injury.  The factors 
 
         discussed above are also relevant to this determination.  In 
 
         addition, claimant has an eight percent functional impairment of 
 
         the body as a whole due to a back condition at the C5-6 level. 
 
         Claimant has not had surgery for his back condition.  Claimant 
 
         testified on cross-examination that his shoulders and neck were 
 
         more painful than his hands and elbow.  Although claimant gave 
 
         this testimony, he had no actual loss of earnings after April 27, 
 
         1987.  Dr. Bashara opined that claimant had a 17 percent 
 
         permanent partial impairment that was work related and he felt 
 
         that claimant's work-related back condition was an eight percent 
 
         impairment.  Claimant's current cumulative industrial disability 
 
         is 50 percent.  The employer's share of this industrial 
 
         disability is 20 percent.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant was born July 5, 1950.  He was 35 years old on 
 
         July 2, 1986 and was 36 years old on April 27, 1987.
 
                                                       
 
                                                                
 
         
 
              2.  On June 21, 1984 claimant suffered a cumulative work 
 
         injury consisting of carpal tunnel syndrome of the left arm.
 
         
 
              3.  Claimant had surgery for the carpal tunnel syndrome of 
 
         the left arm.
 
         
 
              4.  The work injury on June 21, 1984 was the cause of a five 
 
         percent functional impairment to the left arm.
 
         
 
              5.  On May 7, 1986 claimant suffered a cumulative work 
 
         injury consisting of cubital tunnel syndrome injury to the ulnar 
 
         nerve of the left arm.
 
         
 
              6.  Claimant had surgery for a condition resulting from the 
 
         injury on May 7, 1986.
 
         
 
              7.  The work injury on May 7, 1986 was the cause of an 
 
         additional five percent functional impairment to the left arm.
 
         
 
              8.  As a result of the work injuries on June 21, 1984 and 
 
         May 7, 1986 claimant has a functional impairment of ten percent 
 
         to the left arm.
 
         
 
              9.  On July 2, 1986 claimant suffered a cumulative work injury 
 
         consisting of carpal tunnel syndrome of the right arm.
 
         
 
              10.  Claimant had surgery for the carpal tunnel syndrome of
 
         the right arm.
 
         
 
              11.  The work injury on July 2, 1986 was the cause of a five 
 
         percent functional impairment to the left arm.
 
         
 
              12.  Claimant has a high school education and exhibited 
 
         average intelligence at the arbitration hearing.
 
         
 
              13.  Claimant returned to work with the same employer.
 
         
 
              14.  Claimant had no actual loss of earnings.
 
         
 
              15.  There was no showing of claimant's potential for 
 
         vocational rehabilitation.
 
         
 
              16.  Claimant is not physically able to perform the type of 
 
         work for which he is best suited.
 
         
 
              17.  Claimant will not be able to continue his current 
 
         employment with the employer.
 
         
 
              18.  Claimant's cumulative loss of earning capacity as a 
 
         result of the injuries on June 21, 1984, May 2, 1986 and July 2, 
 
         1986 was 30 percent.
 
         
 
              19.  On April 27, 1987 claimant suffered a cumulative work 
 
         injury to his neck at the C5-6 level.
 
                                                       
 
                                                                
 
         
 
              20.  Claimant has not had surgery for the April 27, 1987 
 
         injury.
 
         
 
              21.  The work injury on April 27, 1987 is the cause of an 
 
         eight percent functional impairment to the body as a whole.
 
         
 
              22.  Claimant's cumulative loss of earning capacity as a 
 
         result of the injuries on June 21, 1984, May 2, 1986, July 2, 
 
         1986 and April 27, 1987 was 50 percent.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant has proved that the work injury on June 21, 1984 
 
         was the cause of a five percent disability to the left arm.
 
         
 
              Claimant has proved that the work injury on May 7, 1986 was 
 
         the cause of an additional five percent disability to the left 
 
         arm.
 
         
 
              Claimant has proved that the work injury on July 2, 1986 was 
 
         the cause of a five percent disability to the right arm.
 
         
 
              Claimant has proved that the work injuries of June 21, 1984, 
 
         May 7, 1986 and July 2, 1986 were the cause of an industrial 
 
         disability of 30 percent.
 
         
 
              Claimant.has proved that the work injury on April 27, 1987 
 
         was the cause of an additional 20 percent industrial disability.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
                             
 
                                                                
 
                                   ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant, Liberty Mutual pay claimant twelve point 
 
         five (12.5) weeks of permanent partial disability benefits at the 
 
         rate of two hundred twenty-two and 18/100 dollars ($222.18) per 
 
         week plus interest from August 13, 1984.
 
         
 
              That defendant, Hormel, as self-insured pay claimant:
 
         
 
                   Twenty-five (25) weeks of permanent partial disability 
 
                   benefits at the rate of two hundred forty-two and 
 
                   78/100 dollars ($242.78) per week plus interest from 
 
                   August 25, 1986;
 
         
 
                   Healing period benefits from April 27, 1987 through 
 
                   June 9, 1987 at the rate of two hundred forty-eight and 
 
                   73/100 dollars ($248.73) plus interest; and
 
         
 
                   One hundred (100) weeks of permanent partial disability 
 
                   benefits at the rate of two hundred forty-eight and 
 
                   73/100 dollars ($248.73) per week plus interest from 
 
                   June 10, 1987.
 
         
 
              That defendant, Second Injury Fund, pay claimant one hundred 
 
         twelve point five (112.5) weeks of permanent partial disability 
 
         benefits at the rate of two hundred forty-two and 78/100 dollars 
 
         ($242.78) per week beginning on the twenty-sixth (26th) week 
 
         after August 25, 1986.
 
         
 
              That defendants pay accrued weekly.benefits in a lump sum 
 
         and shall receive credit against this award for benefits 
 
         previously paid.
 
         
 
              That defendants receive credit for previous payment of 
 
         benefits under a non-occupational group insurance plan under Iowa 
 
         Code section 85.38(2) as set forth in the prehearing report 
 
         except for the one (1) week of paid vacation.
 
         
 
              That defendants, Hormel and Second Injury Fund, share 
 
         equally the costs of transcribing the arbitration hearing.
 
         
 
              That remaining costs shall be paid by the party incurring 
 
         the cost.
 
         
 
              That defendants filed activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              That this matter be set back into immediate assignment for 
 
         prehearing on the extent of additional weekly benefits to which 
 
         claimant is entitled for an alleged unreasonable failure to 
 
         timely pay this claim.
 
         
 
                                                       
 
                                                                
 
              Signed and filed this 29th day of December, 1989.
 
         
 
                                                
 
                                               
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Donald G. Beattie
 
         Attorney at Law
 
         204 8th St. SE
 
         Altoona, Iowa  50009
 
         
 
         Mr. Walter F. Johnson
 
         Attorney at Law
 
         111 W. Second St.
 
         P.O. Box 716
 
         Ottumwa,.Iowa  52501
 
         
 
         Mr. Stephen W. Spencer
 
         Attorney at Law
 
         218 6th Ave., Ste 300
 
         P.O. Box 9130
 
         Des Moines, Iowa  50306
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa  50319
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                       
 
 
            
 
                     
 
 
 
                          
 
                                            5-1803, 5-2209, 3200, 5-3800
 
                                            Filed December 29, 1989
 
                                            David E. Linquist
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS MOCKENHAUPT,
 
         
 
              Claimant,
 
         
 
         vs.                                    File Nos. 767982/847923
 
                                                          847924/847925
 
         GEORGE A. HORMEL CO.,
 
         
 
              Employer,                               A P P E A L
 
         
 
         and                                        D E C I S I O N
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         5-1803
 
         
 
              Claimant suffered four work related injuries.  The fourth 
 
         was to the body as a whole.  The employer's liability for 
 
         industrial disability of 20 percent was based upon the additional 
 
         loss of earning capacity attributable to the fourth injury.
 
         
 
         5-2209
 
         
 
              The injury date for cumulative injuries were found to be 
 
         when claimant had surgery for each of three work related 
 
         injuries.  The date of surgery was the first time claimant missed 
 
         work for a compensable period of time.  Claimant did not return 
 
         to work after the second surgery before having the third surgery.  
 
         The injury date for the third injury was the date of surgery for 
 
         that injury.
 
         
 
         3200
 
         
 
              Claimant's cumulative loss of earning capacity after second 
 
         enumerated scheduled member injury was 30 percent.  The 
 
         industrial disability for determining second injury fund 
 
         liability was determined at the point in time when claimant 
 
         suffered the necessary "second injury."  Various second injury 
 
         fund arguments rejected
 
                                                
 
                                                         
 
         
 
         5-3800
 
         
 
              Second Injury Fund not liable for interest.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         DENNIS MOCKENHAUPT,
 
         
 
              Claimant,                              File Nos. 767982,
 
                                                 847923, 847924 & 847925
 
         vs.
 
         
 
         GEORGE A. HORMEL CO.,                    A R B I T R A T I O N
 
         
 
              Employer,                             D E C I S I O N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Dennis 
 
         Mockenhaupt, against George A. Hormel Company, employer 
 
         (hereinafter referred to as Hormel), Liberty Mutual Insurance 
 
         Company, insurance carrier, and the Second Injury Fund, a special 
 
         fund created and administrated under Iowa law, defendants, for 
 
         workers' compensation benefits as a result of alleged injuries on 
 
         June 21, 1984, May 7, 1986, July 2, 1986 and April 27, 1987.  On 
 
         June 27, 1988, a hearing was held on claimant's petition and the 
 
         matter was considered fully submitted at the close of this 
 
         hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and David 
 
         Wieland.  The exhibits received into the evidence at the hearing 
 
         are listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  An employer-employee relationship existed between 
 
         claimant and Hormel at the time of the alleged injuries herein;
 
         
 
              2.  Claimant is only seeking temporary total disability or 
 
         healing period benefits for the alleged neck injury;
 
         
 

 
         
 
         
 
         
 
         MOCKENHAUPT V. GEORGE A. HORMEL CO.
 
         PAGE   2
 
         
 
         
 
              3.  With reference to claimant's rate of weekly compensation 
 
         in the event of an award of weekly benefits from this proceeding, 
 
         the parties stipulated that claimant was single and entitled to 
 
         three exemptions at the time of the alleged injuries; and,
 
         
 
              4.  Insurance coverage by Liberty Mutual Insurance Company 
 
         ended on March 1, 1986 at which time Hormel became self-insured.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether claimant received any injuries arising out of 
 
         and in the course of employment;
 
         
 
             II.  Whether there is a causal relationship between the 
 
         alleged work injuries and the claimed disabilities;
 
         
 
            III.  The extent of claimant's entitlement to weekly benefits 
 
         for disability;
 
         
 
             IV.  Claimant's rate of weekly compensation and,
 
         
 
              V.  The extent of defendants' entitlement to credit under 
 
         Iowa Code section 85.38(2).
 
         
 
              A medical benefits issues was withdrawn at hearing due to a 
 
         stipulation that it will be paid by the appropriate defendant.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Pursuant to order of the undersigned deputy commissioner, 
 
         each party submitted a three page written "Statement of Facts 
 
         Relied Upon" attached hereto.  These statements are made a part 
 
         of the summary as if fully set out herein.  Whether or not 
 
         specifically referred to in these summaries, all of the evidence 
 
         received at the hearing was reviewed and considered in arriving 
 
         at this decision.
 
         
 
              Briefly, claimant is a 37 year old meat packer claiming 
 
         various overuse syndrome injuries from repetitive work at Hormel 
 
         cover the last several years.  Specifically, claimant alleges 
 
         that he suffered carpal tunnel syndrome of the left arm on June 
 
         21, 1984; a left ulnar nerve injury called a cubital tunnel 
 
         syndrome on May 7, 1986; right carpal tunnel syndrome on July 2, 
 
         1986; and, neck/shoulder injury (aggravation of cervical 
 
         spondylosis) on April 27, 1987.  For the syndrome injuries, the 
 
         injury date alleged by claimant coincides with the dates of 
 
         surgery to correct the problems.
 
              
 
              Claimant's past employment before Hormel consisted mostly of 
 
         carpentry work.  Claimant began his employment with Hormel in 
 
         1980.  According to claimant, he had no health problems of any 
 
         insignificance at the time he was first employed.  Claimant's 
 
         work has always involved repetitive tasks in the meat packaging 
 
         and processing activity at Hormel.  A considerable amount of work 
 
         involved over head work and heavy lifting.  Claimant's 
 
         complaints, however, centered around the quota system and the 
 
         speed at which they were required to work.
 
         
 
              Claimant's treating physician has been Jerome Bashara, M.D., 
 
         an orthopedic surgeon.  Dr. Bashara treated all of claimant's 
 

 
         
 
         
 
         
 
         MOCKENHAUPT V. GEORGE A. HORMEL CO.
 
         PAGE   3
 
         
 
         
 
         alleged work injuries in this case including claimant's neck 
 
         problems since January, 1984.  Claimant had similar' neck 
 
         complaints as early as 1981.  In a written opinion offered into 
 
         the evidence, Dr. Bashara causally connected all of the alleged 
 
         injuries in this case to repetitive work at Hormel by 
 
         specifically stating that each injury was caused by repetitive 
 
         work activity prior to each alleged injury date.  Dr. Bashara 
 
         provided impairment ratings for all of these injuries.
 
         
 
              Opinions were also submitted from Thomas A. Carlstrom, M.D., 
 
         a neurosurgeon.  Although Dr. Carlstrom essentially agreed with 
 
         Dr. Bashara with reference to impairment ratings and causal 
 
         connection opinions, he could not find permanent impairment to 
 
         the right arm or neck and did not provide a rating for these 
 
         alleged injuries.
 
         
 
              Dr. Bashara imposed permanent restrictions against 
 
         repetitive use of neck, shoulder, elbows and wrists.  All doctors 
 
         involved in this case agree that claimant's continuation in meat 
 
         packing work was not suitable and that claimant would ultimately 
 
         be compelled to leave such employment.  However, claimant 
 
         continues to work at Hormel despite lingering pain according to 
 
         his testimony and has no immediate plans to quit.
 
         
 
              Claimant has a high school education and did not testify as 
 
         to any current effort to find alternative employment.  No 
 
         vocational assistance has been offered by any of the defendants 
 
         in this case.
 
         
 
              Claimant's appearance and demeanor at hearing indicated that 
 
         he was testifying truthfully.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active or dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              It is not necessary that claimant prove that his disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from work activity over a period of time.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  The 
 
         McKeever court also held that the date of injury in gradual 
 
         injury cases is a time when pain prevents the employee from 
 
         continuing to work.  This date was then utilized in determining 
 
         the rate and the timeliness of claimant's claim under Iowa Code 
 
         section 85.26 and notice under Iowa Code section 85.23.  By 
 
         adopting this rule, Iowa joins the majority of other states by 
 
         placing full liability upon the insurance carrier covering the 
 
         risk at the time of the most recent injury that bears a causal 
 
         relationship to the disability.  This method of assessing the 
 
         liability of successive insurers is similar to the "last 
 

 
         
 
         
 
         
 
         MOCKENHAUPT V. GEORGE A. HORMEL CO.
 
         PAGE   4
 
         
 
         
 
         injurious exposure" rule previously adopted by the court in 
 
         Doerfer Division of CCA v. Nicol, 359 N.W.2d 428 (Iowa 1984) for 
 
         occupational disease cases.
 
         
 
              In the case sub judice, claimant has clearly established the 
 
         alleged work injuries at the time alleged with the exception of 
 
         the time of the right carpal tunnel syndrome.  This finding is 
 
         based primarily upon the views of the primary treating physician 
 
         and orthopedic surgeon, Dr. Bashara, whose casual connection 
 
         views are consistent with the holding in McKeever as to the 
 
         various injury dates.  In each case it was pain that compelled 
 
         the claimant to leave work and seek medical treatment in the form 
 
         of surgery.  The exception is that the right carpal tunnel 
 
         syndrome injury date under the McKeever holding must be the same 
 
         as the ulnar nerve injury date as claimant did not return to work 
 
         prior to the right carpal tunnel surgery.  With reference to the 
 
         neck problems, Dr. Bashara clearly stated that his finding of 
 
         impairment was related to work performed by claimant prior to 
 
         leaving work in the fall of 1987.
 
         
 
              Although the views of Dr. Carlstrom were important they were 
 
         somewhat more confusing primarily due to his lack of clinical 
 
         involvement in claimant's case over the same number of years as 
 
         Dr. Bashara.
 
         
 
             II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v, Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 

 
         
 
         
 
         
 
         MOCKENHAUPT V. GEORGE A. HORMEL CO.
 
         PAGE   5
 
         
 
         
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, again based primarily upon the views 
 
         of Dr. Bashara, claimant has demonstrated causal connection 
 
         between the permanent impairment found by Dr. Bashara and the 
 
         various work injuries in this case.
 
         
 
             III.  As claimant has both scheduled member and body as a 
 
         whole injuries, claimant's various injuries must be compensated 
 
         separately.  First, we will deal with the scheduled member 
 
         claim.
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
         332 N.W.2d 886, 997 (Iowa 1983).  When the result of an injury is 
 
         loss to a scheduled member, the compensation payable is limited 
 
         to that set forth in the appropriate subdivision of Code section 
 
         85.34(2).  Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 
 
         660 (1961).  "Loss of, use" of a member is equivalent to 'loss' 
 
         of the member.  Moses v. National Union C.M. Co., 194 Iowa 819, 
 
         184 N.W. 746 (1922).  Pursuant to Code section 85.34(2)(u) the 
 
         industrial commissioner may equitably prorate compensation 
 
         payable in those cases wherein the loss is something less than 
 
         that provided for in the schedule.  Blizek v. Eagle Signal 
 
         Company, 164 N.W.2d 84 (Iowa 1969).
 
         
 
              From the evidence submitted in this case, it is found as a 
 
         matter of fact that claimant's work injuries of June 21, 1984 and 
 
         May 7, 1986 were a cause each of a five percent loss in the use 
 
         of the left arm or a total of ten percent loss of use of the left 
 
         arm and a five percent loss of use to the right arm.  Based upon 
 
         such a finding, claimant is entitled as a matter of law to 37.5 
 
         weeks of permanent partial disability benefits under Iowa Code 
 
         section 85.34(2)(m) which is 15 percent of 250 weeks, the maximum 
 
         allowable number of weeks for an injury to an arm in that 
 
         subsection.  The return to work dates which terminate healing 
 
         period benefits were stipulated at nearing and interest on 
 
         permanent partial disability benefits will run from those dates.  
 
         Given the stipulation of the parties as to the change of 
 
         insurance coverage, Liberty Mutual is liable for the five percent 
 
         of permanent partial disability benefits plus interest from the 
 
         June 21, 1984 injury and Hormel, as self-insured, is liable for 
 
         the remaining ten percent permanent partial disability plus 
 
         interest as a result of the May 7, 1986 injuries.
 
         
 
              As the claimant has shown that the work injury of April 27, 
 
         1987, was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City R. Co., 
 

 
         
 
         
 
         
 
         MOCKENHAUPT V. GEORGE A. HORMEL CO.
 
         PAGE   6
 
         
 
         
 
         219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical impairment or 
 
         restriction on work activity may or may not result in such a loss 
 
         of earning capacity.  The extent to which a work injury and a 
 
         resulting medical condition has resulted in an industrial 
 
         disability is determined from examination of several factors.  
 
         These factors include the employee's medical condition prior to 
 
         the injury, immediately after the injury and presently; the situs 
 
         of the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant also seeks additional industrial disability 
 
         benefits from the Second Injury Fund under Iowa Code sections 
 
         85.63 through 85.69.  This Fund was created to compensate the 
 
         injured worker for a permanent industrial disability resulting 
 
         from the combined effect of two separate injuries to certain 
 
         scheduled members.  The purpose of such a scheme of compensation 
 
         was to encourage employers to hire or retain handicapped workers.  
 
         See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978).  
 

 
         
 
         
 
         
 
         MOCKENHAUPT V. GEORGE A. HORMEL CO.
 
         PAGE   7
 
         
 
         
 
         There are three requirements under the statute to invoke Second 
 
         Injury Fund liability.  First, there must be permanent loss of 
 
         use of one hand, arm, foot, leg or eye.  Secondly, there must be 
 
         permanent loss of use of another such member or organ through a 
 
         compensable subsequent injury.  Third, there must be a permanent 
 
         industrial disability to the body as a whole arising from both 
 
         the first and second injuries which is greater in terms of 
 
         relative weeks of compensation in the sum of the scheduled 
 
         allowances for those injuries.
 
         
 
              According to a Supreme Court decision rendered in Second 
 
         Injury Fund v. Mich. Coal Co., 274 N.W.2d 300, 304 (Iowa 1979), 
 
         if this agency finds as to claimant's present condition an 
 
         industrial disability to the body as a whole, the agency must 
 
         also make a separate finding as to the degree of industrial 
 
         disability caused by only the second injury."  Such a language 
 
         appears to make employers at the time of the second injury liable 
 
         for disability benefits in excess of the prescribed scheduled 
 
         amounts set forth in Iowa Code section 85.34(2)(a-s).  However, 
 
         Mich. Coal merely stands for the proposition that when the 
 
         Second Injury Fund effects loss of use of a member and also 
 
         extends into the body as a whole, a determination must be made as 
 
         to the degree of industrial disability caused by the second 
 
         injury.  It does not mean that a scheduled loss is to be rated 
 
         industrially.  Fulton v. Jimmy Dean Meat Co., filed July 23, 1986 
 
         (Appeal Decision [appeal pending]).
 
         
 
              In the case at bar, the Fund is liable for any industrial 
 
         disability in excess of 37.5 weeks of permanent partial 
 
         disability benefits.  We also have a subsequent injury to the 
 
         neck which contributes to claimant's current industrial 
 
         disability as it is an injury to the body as a whole.  What is 
 
         confusing in this case is that Dr. Basharas work restrictions in 
 
         this case are combined and the doctor has also combined all 
 
         impairment ratings into a single 17 percent permanent partial 
 
         impairment to the body as a whole from all work related injuries, 
 
         eight percent of which is attributable to the work related neck 
 
         problems.  Apparently, the doctor feels that nine percent is 
 
         attributable to the prior right and left hand impairments.  This 
 
         is roughly a 50 percent apportionment between claimant's total 
 
         disability and claimant's disability as a result of the right and 
 
         left hand impairments.  Therefore, Dr. Bashara has given us a 
 
         rational method to apportion between Second Injury Fund liability 
 
         and the liability of Hormel as self-insured who was solely 
 
         responsible for the April 27, 1987 neck injury given the parties' 
 
         stipulation as to the change of insurance coverage.
 
         
 
              Claimant's industrial disability will now be measured in 
 
         total and one half will be the responsibility of the Second 
 
         Injury Fund and the remaining half will be the responsibility of 
 
         Hormel as self-insured.  However, it should be clear that only 
 
         Hormel wail be liable for future medical benefits for any 
 
         permanent neck injuries.
 
         
 
              Claimant's medical condition before the work injuries was 
 
         excellent and he had no functional impairments or ascertainable 
 
         disabilities.  Claimant was able to perform repetitive tasks 
 
         involving his hands, arms, shoulders and neck.
 
         
 
              Claimant's physicians in this case have restricted 
 
         claimant's work activities by prohibiting repetitive tasks which 
 
         severely restrict the type of work that claimant can perform.  
 
         Virtually, every job that claimant has held in the past including 
 

 
         
 
         
 
         
 
         MOCKENHAUPT V. GEORGE A. HORMEL CO.
 
         PAGE   8
 
         
 
         
 
         his work at Hormel is no longer open to him.  Therefore, a change 
 
         in vocation is probably necessary.  Claimant, however, continues 
 
         to work due to a need to support himself and his dependents 
 
         albeit such work is with much pain.
 
         
 
              The fact that claimant is working is certainly important to 
 
         the analysis but must be given minimal impact on any award to 
 
         compensate for claimant's current disability.  Claimant's current 
 
         employment at Hormel is simply not suitable and all physicians in 
 
         this case opine that claimant cannot continue very long in such 
 
         work.  This lack of suitable current employment clearly 
 
         distinguishes this claim from the facts of the case entitled 
 
         Umphress v. Armstrong Rubber Co., Appeal Decision filed August 
 
         27, 1987, which defendants are relying upon in this case.
 
         
 
              Due to his disability, claimant is not physically able to 
 
         perform the type of work for which he is best suited given his 
 
         age, education and work history.  According to the Iowa Supreme 
 
         Court, such a factual setting may invoke the so called odd-lot 
 
         doctrine.  This doctrine allows a claimant to establish a prima 
 
         facie case for unemployability and entitlement to permanent total 
 
         disability benefits from a factual showing of a reasonable but 
 
         unsuccessful effort to find suitable work.  If defendants then 
 
         fail to go forward with the evidence on the issue of availability 
 
         of suitable work, claimant is entitled as a matter of law to an 
 
         award of permanent partial disability benefits.  See Guyton v. 
 
         Irving Jensen Co., 373 N.W.2d 101, 105 (1985).  However, the 
 
         industrial commissioner has directed that this doctrine cannot be 
 
         applied by a deputy unless the doctrine is identified as an issue 
 
         at the last prehearing conference and listed as a contested issue 
 
         in the hearing assignment order.  Therefore, as such an issue was 
 
         not so raised by claimant, the doctrine will not be applied in 
 
         this case.
 
         
 
              Claimant is 37 years of age.and should be in the most 
 
         productive years of his working career.  His loss of future 
 
         earnings from employment due to his disability is more severe 
 
         than would be the case for a younger or an older individual. See 
 
         Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
 
         Iowa Industrial Commissioner 34 (Appeal Decision 1979).  See 
 
         also Walton v. B & H Tank Corp., II Iowa Industrial Commissioner 
 
         Report 426 (Appeal Decision 1981).
 
         
 
              Although claimant has a high school education and exhibited 
 
         average intelligence at hearing, little was shown to indicate 
 
         claimant's potential for vocational rehabilitation.  No such 
 
         vocational rehabilitation counseling has been offered by any of 
 
         the defendants in this case.
 
         
 
              Claimant's labor market evidence establishes that claimant's 
 
         current job openings are very limited and probably involves only 
 
         sedentary, unskilled work at or about minimum wage given 
 
         claimant's skills and education.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered from a 60 percent loss 
 
         of his earning capacity from all of his work injuries in this 
 
         case.  Based upon such a finding, claimant is entitled as a 
 
         matter of law to 300 weeks of permanent partial disability 
 
         benefits under Iowa Code section 85.34(2)(u) which is 60 percent 
 
         of 500 weeks, the maximum allowable for an injury to the body, as 
 
         a whole in that subsection.
 
         
 

 
         
 
         
 
         
 
         MOCKENHAUPT V. GEORGE A. HORMEL CO.
 
         PAGE   9
 
         
 
         
 
              Pursuant to the previous discussion on apportionment, the 
 
         Second Injury Fund is liable for 112.5 weeks of permanent partial 
 
         disability benefits (150 weeks less the 37.5 weeks of previously 
 
         awarded disability benefits for the prior scheduled member 
 
         injuries).  The Second Injury Fund payments will begin upon the 
 
         expiration of the benefits awarded herein for the second injury 
 
         (25 weeks).  The balance of 150 weeks is the responsibility of 
 
         Hormel, individually and as self-insured, which shall begin at 
 
         the end of the healing period.  Dr. Bashara took claimant off 
 
         work from April 27, 1987 through June 9, 1987 and claimant 
 
         returned to work on June 10, 1987, according to the credible 
 
         testimony of claimant.  Therefore, claimant will be awarded 
 
         healing period benefits for this period of time off work under 
 
         Iowa Code section 85.34.
 
         
 
             IV.  With reference to rate of compensation, a wealth of 
 
         information was submitted into the evidence as to claimant's 
 
         various gross weekly wages between 1984 and 1988 which greatly 
 
         varied from week to week.  However, the hours worked were not 
 
         broken down to indicate whether the varying amounts were the 
 
         result of incentive or overtime pay.  Nor was there information 
 
         submitted to show how the overtime pay was calculated.  
 
         Therefore, most of gross weekly wage information submitted was 
 
         not useful in the computation of a claimant's workers' 
 
         compensation rate.  Wieland testified that prior to September, 
 
         1985, claimant was paid $9.00 per hour; between September, 1985 
 
         and September, 1986 claimant was paid $10.00 per hour; and, after 
 
         September, 1986, claimant was paid $10.25 per hour.  Wieland also 
 
         testified that claimant's customary work week was 40 hours per 
 
         week.  Given the language of the first paragraph of Iowa Code 
 
         section 85.36, the most appropriate rate would be a rate based 
 
         upon claimant's customary hours and Wieland's.testimony as to the 
 
         hourly rate.  Consequently, for the 1984 injury, the gross weekly 
 
         wage shall be $360.00 per week.  For the 1986 injuries the gross 
 
         rate shall be $400.00 per week.  For the 1987 industrial injury, 
 
         the rate will be $410.00 per week.  The Second Injury Fund 
 
         disability benefit rate shall be the same as that for the 1986 
 
         injuries ($400.00).  The commissioner's rate book published for 
 
         the various injury dates will be utilized to arrive at the 
 
         specific rates of compensation given the parties' stipulation as 
 
         to single status and entitlement to three exemptions.
 
         
 
              V.  Apparently there remains a dispute as to whether paid 
 
         vacation time qualifies as a credit under Iowa Code section 
 
         85.38(2).  Payment of accrued vacation time does not appear to be 
 
         a group disability benefit that is permitted as a credit under 
 
         that peculiar code section and defendants shall not take a credit 
 
         against this award for such payment.
 
         
 
              The exhibits in this case were not submitted in an organized 
 
         and rationale manner and contained multiple duplications.  None 
 
         of the parties in this case have complied with the hearing 
 
         assignment order to place these exhibits in a suitable and 
 
         useable form.  Therefore, all requested taxation of costs are 
 
         denied and each party will pay their own costs.
 
         
 
                                 FINDING OF FACTS
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On June 21, 1984, claimant suffered an injury which 
 
         arose out of and in the course of his employment with Hormel 
 
         consisting of carpal tunnel syndrome of the left arm.  This 
 

 
         
 
         
 
         
 
         MOCKENHAUPT V. GEORGE A. HORMEL CO.
 
         PAGE  10
 
         
 
         
 
         injury resulted in surgery and lingering complaints since that 
 
         time.  The injury resulted in a five percent permanent partial 
 
         impairment to the left arm.  This injury was a cumulative injury 
 
         process caused by repetitive work between 1980 and 1984 at Hormel 
 
         and resulted in claimant leaving work on June 21, 1984 to seek 
 
         medical treatment due to pain.
 
         
 
              3.  On May 7, 1986, claimant suffered injuries which arose 
 
         out of and in the course of his employment at Hormel consisting 
 
         of carpal tunnel syndrome of the right arm and cubital tunnel 
 
         syndrome injury to the ulnar nerve of the left arm.  Both of 
 
         these injuries required surgery and symptoms have continued since 
 
         that time.  The injuries of May 7, 1986 were a cause of a five 
 
         percent permanent partial impairment, each, to the right and left 
 
         arm.  Both of these injuries were cumulative injuries resulting 
 
         from repetitive work at Hormel prior to May 7, 1986 and caused 
 
         claimant to be off work beginning on May 7, 1986 to seek medical 
 
         treatment due to pain.
 
         
 
              4.  On April 27, 1987, claimant suffered an injury to his 
 
         neck which arose out of and in the course of his employment at 
 
         Hormel consisting of an aggravation of a preexisting cervical 
 
         spondylosis condition which led to an eight percent permanent 
 
         partial impairment to the body as a whole.  This injury was a 
 
         cumulative injury process resulting from repetitive work at 
 
         Hormel prior to April 27, 1987 which led to an absence from work 
 
         at the time.
 
         
 
              5.  The work injury of April 27, 1987 was a cause of a 
 
         period of total disability from work beginning on April 27, 1987 
 
         and ending upon his return to work on June 10, 1987.
 
         
 
              6.  All the work injuries set forth above were a cause of a 
 
         17 percent permanent partial impairment to the body as a whole 
 
         and of permanent restrictions upon claimant's physical activity 
 
         consisting of no repetitive use of the neck, shoulder, arms, 
 
         hands and wrists.  Eight percent of this disability is 
 
         attributable to the neck injury of April 27, 1987.  Nine percent 
 
         is attributable to both the June 21, 1984 and May 7, 1986 
 
         injuries.
 
         
 
              7.  The work injuries found above and the resulting 
 
         permanent partial impairment was a cause of a 60 percent loss of 
 
         earning capacity.  Claimant is 37 years of age and has a high 
 
         school education.  Claimant is unable to perform without pain the 
 
         type of work he was performing at the time of the work injuries 
 
         and any other meaningful work that he had performed in the past.  
 
         Claimant is limited to sedentary and light unskilled work about 
 
         or close to minimum wage of $3.35 per hour.  Claimant was earning 
 
         from $9.00 to $10.25 per hour in his job at Hormel.  Claimant is 
 
         currently working for Hormel but this work is not suitable and 
 
         medical experts agree that he cannot continue in such work in the 
 
         future.
 
         
 
              8.  Claimant's gross weekly earnings were $360.00 per week 
 
         on June 21, 1984; $400.00 per week on May 7, 1986 and $410.00 per 
 
         week on April 27, 1987.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to the 
 
         disability benefits awarded below:
 
         
 

 
         
 
         
 
         
 
         MOCKENHAUPT V. GEORGE A. HORMEL CO.
 
         PAGE  11
 
         
 
         
 
                                      ORDER
 
         
 
              1.  Defendant, Liberty Mutual, shall pay to claimant twelve 
 
         point five (12.5) weeks of permanent partial disability benefits 
 
         at the rate of two hundred twenty-two and 18/100 dollars 
 
         ($222.18) per week plus interest from August 13, 1984.
 
         
 
              2.  Defendant, Hormel, as self-insured, shall pay to 
 
         claimant twenty-five (25) weeks of permanent partial disability 
 
         benefits at the rate of two hundred forty-two and 78/100 dollars 
 
         ($242.78) per week plus interest from August 25, 1986.  
 
         Defendant, Hormel, shall also pay healing period benefits from 
 
         April 27, 1987 through June 9, 1987 at the rate of two hundred 
 
         forty-eight and 73/100 dollars ($248.73) plus interest and one 
 
         hundred fifty (150) weeks of permanent partial disability 
 
         benefits at the rate of two hundred forty-eight and 73/100 
 
         dollars ($248.73) per week plus interest from June 10, 1987.
 
         
 
              3.  Defendant, Second Injury Fund, shall pay to claimant one 
 
         hundred twelve point five (112.5) weeks of permanent partial 
 
         disability benefits at the rate of two hundred forty-two and 
 
         78/100 dollars ($242.78) per week plus interest beginning on the 
 
         twenty-sixth (26th) week after August 25, 1986.
 
         
 
              4.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for benefits 
 
         previously paid as set forth in the prehearing report.
 
         
 

 
         
 
         
 
         
 
         MOCKENHAUPT V. GEORGE A. HORMEL CO.
 
         PAGE  12
 
         
 
         
 
              5.  Defendants shall receive credit for previous payment of 
 
         benefits under a non-occupational group insurance plan under Iowa 
 
         Code section 85.38(2) as set forth in the prehearing report 
 
         except for the one (1) week of paid vacation.
 
         
 
              6.  Each party shall pay their own costs of this action.
 
         
 
              7.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              8.  This matter shall be set back into immediate assignment 
 
         for prehearing and hearing on the extent of additional weekly 
 
         benefits to which claimant is entitled for an alleged 
 
         unreasonable failure to timely pay this claim.
 
         
 
         
 
              Signed and filed this 31st day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Donald G. Beattie
 
         Attorney at Law
 
         204 8th St. S.E.
 
         Altoona, Iowa 50009
 
         
 
         Mr. Walter F. Johnson
 
         Attorney at Law
 
         111 W. Second St.
 
         P. O. Box 716
 
         Ottumwa, Iowa 52501
 
         
 
         M.s. Joanne Moeller
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1803; 2209; 2907; 3200
 
                                                  Filed October 31, 1988
 
                                                  LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS MOCKENHAUPT,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   File Nos. 767982,
 
         GEORGE A. HORMEL CO.,                 847923, 847924 & 847925
 
         
 
              Employer,                         A R B I T R A T I O N
 
         
 
         and                                       D E C I S I O N
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         1803; 2209; 2907; 3200
 
         
 
              Claimant awarded benefits for multiple injuries.  Scheduled 
 
         member benefits were divided among two insurers under the 
 
         McKeever doctrine.  Industrial disability was found creating 
 
         liability for the Second Injury Fund.  A subsequent body as a 
 
         whole injury was found to also cause additional industrial 
 
         disability.  An apportionment was made between the last employer 
 
         and the Second Injury Fund with reference to claimant's total 
 
         industrial disability.  All parties were denied costs due to a 
 
         failure to comply with the hearing assignment order with 
 
         reference to the exhibits presented.
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS MOCKENHAUPT                                767982
 
                                                           847923
 
              Claimant                            FILE NO. 847924
 
                                                           847925
 
            -vs-
 
         
 
         GEORGE A. HORMEL CO                      SUMMARY OF FACTS
 
                                                  FOR CLAIMANT
 
              Employer
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE COMPANY
 
         
 
              Insurance Carrier
 
         
 
         STATE OF IOWA
 
         
 
              Defendant
 
         
 
         
 
         
 
              COMES NOW the claimant and submits the following facts 
 
         
 
         in this captioned cause of action.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            SKINNER, BEATTIE & WILSON 
 
                                            P.C.
 
         
 
         
 
                                             By                           
 
         
 
                                                Donald G. Beattie
 
                                                204 8th Street S.E.
 
                                                Altoona, Iowa 50009
 
                                                Telephone: (515) 967-4264
 
         
 
                                             Attorneys for the Claimant
 
         
 
         
 
         Walter F. Johnson                     Joanne Mackusick
 
         111 West Second Street                Assistant Attorney General
 
         P.O. Box 716                          Hoover State Office 
 
         Building                              Des Moines, Iowa 50319
 
         Ottumwa, Iowa 52501                   
 
         
 
         Stephen W. Spencer
 
         P.O. Box 9130
 
         Des Moines, Iowa 50306-9130
 
         
 
         
 
         
 
              Claim is being made for 4 separate injuries which are left 
 
         arm carpal tunnel, left arm ulnar nerve, right arm carpal tunnel, 
 
         neck and body as a whole.  T.T.D. payments were made for the left 
 

 
         
 
         
 
         arm carpal tunnel and ulnar nerve, and right arm carpal tunnel.  
 
         No P.P.D. payments have been made for any injury.
 
         
 
              All injuries occurred at a different time and all were as 
 
         the result of repetitive and cumulative work, i.e., based upon 
 
         the McKeever rationale.
 
         
 
              The left carpal tunnel surgery occurred on June 21, 1984 for 
 
         which Dr. Jerome Bashara, Orthopedic surgeon, gave a 59 P.P.D. 
 
         impairment. (Exh. #1, p. 10)  The left ulnar nerve surgery 
 
         occurred on May 7, 1986 for which Dr. Bashara, treating surgeon, 
 
         gave a 5% P.P.D. (Exh. 7-1, p. 7, 8).  The right carpal tunnel 
 
         surgery occurred on July 2, 1986 for which Dr. Bashara gave a 5% 
 
         P.P.D. rating. (Exh. #1, p. 10, 11). In addition, Dr. Bashara 
 
         stated that:
 
         
 
              all of the above  diagnosis are felt to be work related 
 
              injuries either all or in part. . . The etiology is due to 
 
              repetitive work at the Hormel Plant. . . .
 
         
 
         Exh. #1, p. 10).
 
         
 
              Dr.  Thomas Carlstrom, defendants' doctor, opined that "the 
 
         arm, elbow and shoulder discomforts should be considered related 
 
         to the work injuries suffered in the 1984-1985 time span."  (Exh. 
 
         #2, p. 8).   Dr.  Carlstrom gave a rating of 4% to the left 
 
         carpal tunnel surgery;  (Exh. #3, p. 28) and 6% to the left ulnar 
 
         nerve (Exh. #3, p. 28).  Dr. Carlstrom gave no permanency to the 
 
         right carpal tunnel but gave the reason that "I don't think we 
 
         ever went into discomfort or problems with respect to the right 
 
         arm so I think this should just be considered to be the left 
 
         arm". (Exh. #3, p. 21).  A further reason is that Dr. Carlstrom 
 
         stated "my recollection is that the carpal tunnel on the right 
 
         wasn't bothering him anymore". (Exh. #3, p. 23).  Dr. Carlstrom 
 
         did admit that if the right wrist did bother him that he would 
 
         give him disability if he had that operated on.  (Exh. 3, p. 
 
         24).
 
         
 
              Dr.  Bashara recommended that "Dennis not be placed in any 
 
         particular job which involved continuous repetitive use of the 
 
         shoulder, elbow or wrist."  (Exh. #1, p. 7).
 
         
 
              Dr.  Bashara, treating physician, opined that the "neck 
 
         difficulties and resulting impairment were a result of the 
 
         repetitive trauma which he sustained while working for Hormel up 
 
         through April of 1987". (Exh. #1, p. 12).  Dennis presented a 
 
         history of neck problems while working at Hormel which first 
 
         appeared commencing May 29, 1981 which records reveal that his 
 
         condition is worsened by the meat that he hangs. (Exh. #4, p. 
 
         3).
 
         
 
              Dr.  Bashara has found limitation of motion, 60% of the 
 
         normal right and left rotation, 50% of normal forward flexion; 
 
         and 20% of normal on the extension with decreased deep tendon 
 
         reflexes in both upper extremities and slightly restricted range 
 
         of motion of left shoulder compared with right. (Exh. #1, p. 7). 
 
         As a result, Dr. Bashara gave a 10% P.P.D. of his body as a whole 
 
         with 2% secondary to preexisting factors and 8% directly related 
 
         to work at Hormel. (Exh. #1, p. 10).
 
         
 
              As restrictions, Dr. Bashara stated Dennis should be 
 
         restricted from any job requiring repetitive use of his "neck, 
 
         shoulders and elbows or wrist". (Exh. #1, p. 11).
 
         
 
              Dr. Carlstrom did not give permanency although he stated 
 
         that he believes it is possible Dennis' work could have caused 
 
         his condition and the type of work he does is consistent with the 
 
         type of injury Dennis has. (Exh. #3, p. 25, 26, 27, 33; Exh. #1, 
 
         p. 7).
 
         
 

 
              
 
              
 
              Concerning permanency, Dr. Carlstrom opined that "because of 
 
         his discomfort, one would have to say that it is unlikely that he 
 
         will be able to continue this job at Hormel for any length of 
 
         time into the future". (Exh. #2, p. 7,8).  Dr. Donald Berg, 
 
         orthopedic surgeon who treated Dennis stated as follows 
 
         concerning his arms:
 
         
 
              As mentioned, he wants to bid onto a job which is 
 
              consisted of stuffing and hanging 70 pounds of meat and 
 
              lifting these above his head and doing 2-4 per minute.  
 
              I feel this is way out of line for his problem with his 
 
              arms, and I do not feel he would be able to do this on 
 
              a repetitive basis.  He might tolerate this for 1-2 
 
              days with his arms. I am certain that be would not be 
 
              able to bold up under this strenuous repetitive work 
 
              load.  And I would not recommend that be do this job on 
 
              that basis.
 
         
 
         (Exh. #13, page 1).
 
         
 
              Exh. #14 delineates within the records of the employer the 
 
         list of work which Dennis cannot perform.  The issues are stated 
 
         at pages 1 and 2 of Claimant's brief.
 
         
 
              Dennis is a 37 year old, high school graduate with no 
 
         college, trade school, or seminar experience.  Before Hormel, the 
 
         only occupation he worked at was carpentry.
 
         
 
              The Hormel work is extremely strenuous and extremely 
 
         repetitive.  It is not untypical for a Hormel worker to handle 
 
         2,500 pieces of meat in an hour's time.
 
         
 
              According to all doctors Dennis will be unable to continue 
 
         his employment at Hormel for any length of time into the future.  
 
         Further because of the heavy activity required ar carpentry, 
 
         Dennis cannot return to that activity when he is unable to work 
 
         at Hormel.  Dennis had a good work record and had no known 
 
         previous illness or injury.  Dennis has no known transferrable 
 
         skills and the insurance company has refused to provide 
 
         rehabilitation benefits.  Exh.s #9, #10, and #11 reveal that few 
 
         job openings exist for which Dennis can work.
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DENNIS MOCKENHAUPT,
 
                                                 File Nos. 767982
 
              Claimant                                     847923
 
                                                           847924
 
         vs.                                               847925
 
         
 
         GEO. A. HORMEL & CO.,
 
         
 
              Employer
 
                                                   SUMMARY OF FACTS
 
         and                                       RELIED UPON
 
         
 
         LIBERTY MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants
 
         
 
         
 
         
 

 
              COMES NOW Liberty Mutual Insurance Company, Insurance 
 
 
 
         Carrier, and submits the following Summary of Facts in this 
 
 
 
         matter as ordered in Post-Hearing Order of June 27, 1988.
 
 
 
         
 
 
 
         
 
 
 
                                    Walter F. Johnson
 
                                    of Johnson, Bauerle, Hester & Walter
 
                                    111 W. Second St. - P.O. Box 716
 
                                    Ottumwa, Iowa 52501
 
                                    Telephone: (515) 684-5481
 
                                    Attorney for Liberty Mutual
 
                                     Insurance Company, Insurance Carrier
 
         
 
         Original Filed
 
         
 
         
 
         Copy To:
 
         
 
         Donald G. Beattie
 
         204 8th Street S.E.
 
         Altoona, Iowa 50009
 
         
 
         Stephen W. Spencer
 
         P.O. Box 9130
 
         Des Moines, Iowa 50306-9130 
 
         
 
         Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division     
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
              
 
              The Claimant, Dennis Mockenhaupt, commenced work for Geo. A. 
 
         Hormel & Co., in September of 1980.  He is a high school 
 
         graduate, age thirty-seven (37) years, who had worked at a number 
 
         of occupations up to the time that he became employed by Geo. A. 
 
         Hormel & Co. in its Knoxville, Iowa, operation.  Claimant has 
 
         continued to work for that Employer to the present time.
 
         
 
              By stipulation, at the time of trial, Claimant amended his 
 
         pleadings to claim a June 21, 1984, injury as the same relates to 
 
         the left arm carpal tunnel, a May 7, 1986, injury for left arm 
 
         ulnar nerve and a July 2, 1986, injury for right carpal tunnel.  
 
         His petition alleged an April 27, 1987, injury as to neck and 
 
         body as a whole injuries.
 
         
 
              Commencing in 1981, Claimant noted back, neck and shoulder 
 
         pain and in 1983, a physician administered injections in the 
 
         shoulder area because of pain complaints.  Dr. Jerome Bashara, in 
 
         his report of March 21, 1984, prescribed physical therapy by 
 
         reason of degenerative spondylosis at the C5, 6 level.
 
         
 
              Subsequently, Dr. Bashara found carpal tunnel in the left 
 
         wrist and performed surgery in June of 1987.  Claimant returned 
 
         to work at Hormel thereafter without restrictions.  In May of 
 
         1987, Dr. Bashara performed surgery for left ulnar nerve! 
 
         blockage.  In July of 1986, Dr. Bashara performed surgery for 
 
         right carpal tunnel.
 
         
 
              Claimant went back to work at Hormel in August of 1986, and 
 
         has been continuously employed since that time without 
 
         restrictions.  As of the date of the hearing, Claimant has no 
 
         specific work restrictions.  He has been paid twenty-three (23) 
 
         weeks and three (3) days of temporary total disability benefits 
 
         covering the period from June 21, 1984, to August 12, 1984, and 
 
         May 6, 1986, to August 24, 1986, and the parties have stipulated 
 

 
         
 
         
 
         that this constituted payment for all temporary disability for 
 
         the left and right carpal tunnel and left ulnar nerve injuries.
 
         
 
              Other than the examination by Dr. Thomas A. Carlstrom on 
 
         March 1, 1988, Claimant has been under treatment by no physicians 
 
         and has taken no medication since August of 1986, other than a 
 
         visit prior to the hearing when he saw Dr. Griffin for what he 
 
         alleges are shoulder and neck pain.
 
         
 
              Dr. Thomas A. Carlstrom saw the Claimant on August 29, 1985, 
 
         September 12, 1985, October 24, 1985, and on March 1, 1988.  His 
 
         deposition was taken on June 6, 1988, and he, notes that the 
 
         Claimant has full range of motion in his left and right wrists.  
 
         The doctor stated that the nerve examination was normal and that 
 
         there was no nerve being compressed in the neck, arm, elbow or 
 
         wrist of the Claimant.  Claimant has never complained of any back 
 
         problem to Dr. Thomas A. Carlstrom.  In the last examination of 
 
         March 1, 1988, Dr. Carlstrom found no neurological abnormalities.  
 
         He further found that the Claimant has good range of motion of 
 
         his neck and that there was no impairment with reference to the 
 
         same.  Spurling's and Lhermittes signs were negative which the 
 
         doctor testified implied that there was no pinched nerve in the 
 
         neck and that there was no spinal cord compression which elicited 
 
         any numbness, tingling or pain in either arm, the legs or the 
 
         toes of the claimant.
 
         
 
              Dr. Carlstrom found no impairment with reference to the 
 
         shoulder and estimated an impairment rating to the left upper 
 
         extremity of no more than 5% or 10% of that extremity because of 
 
         the surgery procedures.  He testified that the Claimant had no 
 
         disability in the right arm and could note no impairment as to 
 
         that arm, the elbow or the shoulders of Claimant.  He felt that 
 
         there were no restrictions upon Claimant insofar as his future 
 
         conduct or work was concerned and that, based upon the last EMG 
 
         and nerve conduction velocity studies, which were normal, there 
 
         was no compression of the nerve in either arm or the neck.
 
         
 
              Dr. Jerome Bashara was not called as a witness in the case 
 
         by Claimant.
 
         
 
              Under the Employer's separate group disability policy, the 
 
         Claimant has received payment of $992.20 for the period from 
 
         April 27, 1987, to June 5, 1987, and the Defendants claim credit 
 
         under Section 85.38(2) for such payment.  In addition, the 
 
         Claimant received an extra week's vacation while off work for 
 
         that particular time which totalled $410.00 and for which credit 
 
         is sought.
 
         
 
              Liberty Mutual, as Insurance Carrier, maintained workers 
 
         compensation coverage for this Employer only until March 1, 1986, 
 
         at which time, the Employer became self-insured (Stipulation in 
 
         Record pages 7 and 8).  It is the contention of Liberty Mutual 
 
         Insurance Company that it is not the obligated insurer 
 
         hereunder.
 
         
 

 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DENNIS MOCKENHAUPT,                   FILE NO. 847923, 847924
 
                                                        847925
 
              Claimant,
 
         
 
         vs.
 
         
 
         GEORGE A. HORMEL CO.,
 
         
 
              Employer,
 
         
 
         LIBERTY MUTUAL INS. CO.,
 
         
 
              Insurance Carrier,
 
         
 
         SECOND INJURY FUND OF IOWA,         SECOND INJURY FUND OF IOWA'S
 
                                                  SUMMARY OF FACTS
 
              Defendants.
 
         
 
              COMES NOW the Defendant Second Injury Fund of Iowa, and for 
 
         its Summary of Facts states as follows:
 
         
 
              Claimant, Dennis mockenhaupt, is a 37-year-old high school 
 
         graduate who received average grades. (Testimony of Claimant.) 
 
         Prior to starting work at Hormel in September 1980, Claimant was 
 
         employed at various times as a roofer, union carpenter, 
 
         maintenance worker, and school bus driver. (Testimony of 
 
         Claimant, Claimant's Deposition pp. 6-12.)
 
         
 
              Claimant began to experience neck, back, and shoulder pain 
 
         in 1981. (Testimony of Claimant, Mater Clinic Records, Exhibit 4, 
 
         p. 1.) On January 13, 1983, Dr. VanderLinden administered 
 
         injections in the shoulder blade area because of the severe 
 
         discomfort.  (Mater Clinic Records, Exhibit 4, p. 3.)
 
         
 
              On March 21, 1983, Dr. Bashara diagnosed degenerative 
 
         cervical spondylosis at C-5 and prescribed physical therapy.   
 
         (Dr. Basharas Records, Exhibit 1, p. 12.)  He continued to have 
 
         neck and shoulder pain, however, and in April 1987 Dr. Lang took 
 
         him off work because of this problem.  He finally returned to 
 
         work in June. (Testimony of Claimant.) Unfortunately, the aching 
 
         in his shoulders is worse now than it was in 1982-83. (Testimony 
 
         of Claimant.)
 
         
 
              Over a period of three to four years, Claimant noticed the 
 
         gradual onset of pain in his left wrist. (Testimony of Claimant.) 
 
         Dr. Jerome Bashara diagnosed his condition as carpal tunnel in 
 
         the left wrist and performed a surgical release on June 24, 1987. 
 
         (Dr.  Basharas Records, Exhibit 1, p. 2.) After recovering from 
 
         surgery, he returned to his job at Hormel with no medication and 
 
         no restrictions. (Dr. Basharas Records, Exhibit 1, p. 2.)
 

 
         
 
              
 
              
 
              Over the next two years at Hormel, Claimant noticed the 
 
         gradual onset of further pain and discomfort in his left arm. 
 
         (Testimony of Claimant, Claimant's Deposition, pp. 37-39.) A 
 
         repeat EMG showed a left ulnar nerve blockage, and Dr. Bashara 
 
         performed surgery on May 7, 1987. (Dr.  Basharas Records, Exhibit 
 
         1, p. 4.)
 
         
 
              Claimant had also, at the same time, noticed tingling and 
 
         soreness in his right wrist. (Testimony of Claimant, Claimant's 
 
         Deposition, pp. 43-44.)
 
         
 
              An EMG was performed on the right wrist, and Dr. Bashara 
 
         performed a right carpal tunnel release on July 2, 1986. (Dr. 
 
         Basharas Records, Exhibit 1, pp. 10, 11.)
 
         
 
              Claimant testified that when he was off work from may 
 
         through August, 1986, after his surgeries, his arms and hands 
 
         "felt good" and definitely improved.  After going back to work in 
 
         August, the symptoms began to return. (Testimony of Claimant, 
 
         Claimant's Deposition, p. 39.)
 
         
 
              Claimant returned to Hormel in August 1986 under no 
 
         restrictions, other than to avoid certain actions which caused 
 
         discomfort,and on no medications.  He continues to be employed 
 
         there.  At the tine of hearing, Claimant was under no specific 
 
         restrictions, limited only by his own discomfort. (Testimony of 
 
         Claimant.)
 
         
 
              He testified that the only thing really bothering him now 
 
         are his shoulders. (Testimony of Claimant, Claimant's Deposition, 
 
         pp. 50, 62.) He had seen no doctors and been on no medications 
 
         after his return to work in August, 1986, until two weeks prior 
 
         to the hearing when he saw Dr. Griffin for shoulder and neck 
 
         pain. (Testimony of Claimant.)
 
         
 
              In his leisure time, Mr. Mockenhaupt hunts, fishes, and 
 
         works on pit crews at Knoxville and other local car races, and 
 
         works around the garage fixing cars. (Testimony of Claimant, 
 
         Claimant's Deposition, pp. 48-49.)
 
         
 
              Dr. Bashara rates the Claimant's functional disabilities as 
 
         5 percent each of the left and right wrist and left elbow. (Dr. 
 
         Basharas Records, Exhibit 1, pp. 10, 11.)
 
         
 
              Dr. Carlstrom, stating that the Claimant has a full range of 
 
         motion of his left and right wrists, says in a letter that no 
 
         rating should be given under the American Medical Association 
 
         guide. (Dr. Carlstrom's Records, Exhibit 2, p. 8.)
 
         
 
              Later, at his deposition, Dr. Carlstrom estimated the 
 
         impairment rating to the left upper extremity to be between 5 and 
 
         10 percent because of the two surgical procedures performed by 
 
         Dr. Bashara. (Dr. Carlstrom's Deposition, Exhibit 3, p. 17.) He 
 
         further stated that he did not believe that Claimant had any 
 
         disability in his right arm. (Dr. Carlstrom's Deposition, Exhibit 
 
         3, p. 23.)
 
         
 
              Dr. Carlstrom, Delbert Pettyjohn, and Dave Wetland all 
 
         testified that carpal tunnel syndrome is a hazard of the meat 
 
         packing industry. (Testimony of Witnesses, Dr. Carlstrom's 
 
         Deposition, Exhibit 3, p. 31.)
 
         
 
         
 
         
 
         
 
                                           THOMAS J. MILLER
 
                                           Attorney General of Iowa
 
         
 
         
 

 
         
 
         
 
                                           
 
                                           JOANNE MOELLER
 
                                           Assistant Attorney General
 
                                           Tort Claims Division
 
                                           Hoover State Office Building
 
                                           Des Moines, Iowa 50319
 
                                          (515) 281-5881
 
                                           ATTORNEY FOR SECOND INJURY 
 
                                           FUND
 
         
 
         
 
         
 
         
 
         
 
         Copy to:
 
         
 
         
 
         Donald G. Beattie                 Walter F. Johnson
 
         204 Eighth Street SE              P.O. Box 718
 
         Altoona, Iowa 50009               Ottumwa, Iowa 52501
 
         ATTORNEY FOR CLAIMANT             ATTORNEY FOR INSURANCE CARRIER
 
         
 
         Stephen W.  Spencer
 
         P.O. Box 9130
 
         Des Moines, Iowa  50306-9130
 
         ATTORNEY FOR EMPLOYER
 
         
 
          
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DENNIS MOCKENHAUPT,
 
         
 
              Claimant,                     FILE NOS. 767982, 847923,
 
                                                      847924, 847925
 
         vs.
 
         
 
         GEORGE A. HORMEL & COMPANY,
 
         
 
              Employer,                     GEORGE A. HORMEL & COMPANY'S
 
                                                  SUMMARY OF FACTS
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Defendants.
 
 
 
         
 
         
 
              COMES NOW the Employer, George A. Hormel & Company, in its 
 
         self-insured status, and submits the following Summary of Facts:
 
         
 
              Claimant began to experience neck, back and shoulder pain as 
 
         far back as 1981. (Testimony of Claimant, Mater Clinic records, 
 
         Exhibit 4, Page 1) Indeed, as early as January 13, 1983, Dr. 
 
         VanderLinden administered injections in the Claimant's shoulder 
 
         blade area because of severe discomfort. (Mater Clinic records, 
 
         Exhibit 4, Page 3) As Dr. DesCamps states in his records of March 
 
         30, 1984, the Claimant's left neck and cervical spondylosis 
 
         symptoms began in January 1983 and his disability for same first 
 
         began January 13, 1983. (Mater Clinic records Exhibit 4)  As can 
 
         be seen by the Mater Clinic Progress Notes dated April 4, 1984, 
 
         the Claimant even had a home traction unit for treatment of his 
 
         neck symptoms at that time. (Mater Clinic records, Exhibit 4; 
 
         testimony of Claimant)
 
         
 
              Claimant also began noticing difficulties with his left hand 
 
         going to sleep, pain in his left elbow and in his left shoulder 
 
         area since at least early 1985. (See August 29, 1985, office note 
 
         of Dr. Thomas Carlstrom, Exhibit 2)   The Claimant continued to 
 
         treat with various physicians for these conditions from that time 
 
         forward. (See Mater Clinic records, Exhibit 4; Dr. Carlstrom's 
 
         records, Exhibit 2; Dr. Basharas records, Exhibit 1)  In fact, 
 
         even Dr. Bashara states in his office note of July 9, 1987, that 
 
         the claimant's then current complaints in his neck, left 
 
         shoulder, and paresthesia into his left arm were the same 
 
         problems Dr. Bashara had seen the Claimant for all the way back 
 
         in January 1986. (See Dr. Bashara records, Exhibit 1) Finally, 
 
         even at the time of the Claimant's left elbow surgery in May of 
 
         1986 and right carpal tunnel surgery in July 1986, the Claimant 
 
         was giving a history of these complaints as having been ongoing 
 
         for at least a six to eight months prior to the surgery. (See 
 
         July 1986, Knoxville Hospital Discharge Summary and May 1986, 
 
         Knoxville Hospital Discharge Summary contained in Mater Clinic 
 
         Records, Exhibit 4)  Yet, as indicated above, the Claimant's 
 
         histories of the onset of his various problems date clear back 
 
         into the early 1980's.  Additionally, concerning the right carpal 
 
         tunnel problem, the claimant even had a positive EMG study done 
 
         in January 1986 showing mild right carpal tunnel even then. (See 
 
         Mater Clinic Records, Exhibit 4) Finally, both Dr. Carlstrom in 
 
         his report of March 3, 1988, and Dr. Bashara in his report of 
 
         July 31, 1987, indicate that all of the Claimant's problems are 
 
         due to activities the Claimant performed during the time period 
 
         of 1980 through 1985. (See Dr. Carlstrom's Records, Exhibit 2; 
 
         Dr. Basharas Records, Exhibit 1)
 
         
 
              In any event, the Claimant's conditions are not currently 
 
         disabling. (See testimony of Claimant) The Claimant continues to 
 
         work at Hormel making his regular wage. (See testimony of 
 
         Claimant and Testimony of David Wieland) In fact, to date Hormel 
 
         continues to work with the Claimant to provide him a job within 
 
         the Claimant's own subjective restrictions.  That is, Hormel has 
 
         provided the Claimant with work only to the extent the Claimant 
 
         has agreed that he feels he can do the particular job. (See 
 
         testimony of David Wieland) Hormel does not admit that the 
 
         Claimant is as limited or restricted as the Claimant subjectively 
 
         maintains.
 
         
 
         
 
                                              PEDDICORD, WHARTON, THUNE &
 
                                              FOXHOVEN & SPENCER
 
                                              A Professional Corporation
 
         
 
         
 

 
         
 
                                         By:.............................
 
                                              STEPHEN W. SPENCER
 
                                              P.O. Box 9130
 
                                              Des Moines, IA 50306-9130
 
                                              Telephone: 515/243-2100
 
                                              ATTORNEY FOR EMPLOYER
 
         
 
         ORIGINAL FILED
 
         
 
         COPIES TO:
 
         
 
         Donald C. Beattie
 
         Attorney at Law
 
         204 8th Street S.E.
 
         Altoona, Iowa 50009
 
         ATTORNEY FOR CLAIMANT
 
         
 
         Walter F. Johnson
 
         Attorney at Law
 
         P.O. Box 718
 
         Ottumwa, Iowa 52501
 
         ATTORNEY FOR INSURANCE CARRIER
 
         
 
         Joanne Moeller
 
         Attorney at Law
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50318
 
         ATTORNEY FOR SECOND INJURY FUND
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BRUCE T. HOENING,                            File No. 767993
 
         
 
              Claimant,                            A R B I T R A T I O N
 
         
 
         vs.                                          D E C I S I O N
 
         
 
         OSCAR MAYER & CO.,                              F I L E D
 
         
 
              Employer,                                 JAN 29 1988
 
              Self-Insured,
 
              Defendant.                       IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                           STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Bruce T. 
 
         Hoening, claimant, against Oscar Mayer Food Corporation, employer 
 
         (hereinafter referred to as Oscar Mayer), for workers' 
 
         compensation benefits as a result of an alleged injury on May 14, 
 
         1984.  On December 4, 1987, a hearing was held on claimant's 
 
         petition and the matter was considered fully submitted at the 
 
         close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses:  Rebecca Hoening, Phil Schumacher, John 
 
         Feather.  The exhibits received into the evidence at the hearing 
 
         are listed in the prehearing report, the parties have stipulated 
 
         to the following matters:
 
         
 
              1.  On May 14, 1984, claimant received an injury to the 
 
         right arm which arose out of and in the course of employment with 
 
         Oscar Mayer; the alleged work injury to the left arm remains in 
 
         dispute.
 
         
 
              2.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $165.31 
 
         per week.
 
         
 
              3.  Claimant was paid 25.21445 weeks of compensation at the 
 
         rate of $165.31 per week prior to the hearing.
 
         
 
                                     ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
                I.  Whether claimant received any other injuries arising 
 
         out of and in the course of his employment at Oscar Mayer;
 
                                                
 
                                                         
 
         
 
               II.  Whether there is a causal relationship between any of 
 
         the alleged work injuries and the claimed disabilities; and,
 
         
 
              III.  The extent of weekly disability benefits to which 
 
         claimant is entitled.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of the evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are evitable.  Such conclusions, if 
 
         any, in the following summary should be considered as preliminary 
 
         findings of fact.
 
         
 
              Claimant testified that he worked for Oscar Mayer from 
 
         November 14, 1983 until his termination on January 3, 1985.  Most 
 
         of his work involved ham boning in which he was required to trim 
 
         20 pound hams on a continuous repetitive basis in assembly line 
 
         fashion.  Claimant said that after each ham arrived at his work 
 
         station he would use a six inch straight knife held in his right 
 
         hand to trim the ham.  He steadied the the ham using his left 
 
         hand.  After trimming, which only took a few seconds, claimant 
 
         said that he would then throw the ham over his shoulder to a bin 
 
         located behind him.  Claimant testified that eventually he was 
 
         assigned to a "pace line" which processed from 700 to over 1,000 
 
         hams during his shift.  Phil Schumacher, the personnel manager at 
 
         Oscar Mayer, testified that claimant was performing the job 
 
         incorrectly by throwing the hams over his shoulder and that the 
 
         hams were only 16 to 17 pounds in weight.  Schumacher also 
 
         disagreed with claimant's description of the extent of the amount 
 
         of wrist and hand motions required to perform the job.
 
         
 
              Claimant's employment prior to working at Oscar Mayer 
 
         consisted of labor work for a Ford car dealer, care of patients 
 
         at Woodward State Hospital, work in a bakery shop, work in a car 
 
         rental business and employment as a cashier at a Hardee's 
 
         fast-food restaurant.
 
         
 
              Claimant testified that after only six weeks on the job at 
 
         Oscar Mayer his hands began to hurt and he felt numbness and 
 
         tingling in his fingers and hands.  He said that at times on his 
 
         way home from work the fingers of his right hand would lock 
 
         around the steering wheel of his car.  He stated that he also 
 
         began to experience difficulty sleeping because of the pain and 
 
         numbness in his arms.  Claimant testified that he also began to 
 
         drop thing due to a loss of strength in his hand.  Claimant said 
 
         that he never had these types of problems before working at Oscar 
 
         Mayer.  The company medical records indicated that claimant first 
 
         reported right wrist pain to the medical department on February 
 
         2, 1984.
 
                                                
 
                                                         
 
         
 
              In April, 1984, claimant saw Robert Deranleau, M.D., for 
 
         left arm and shoulder pain.  In May, 1984, claimant saw Dr. 
 
         Deranleau for right wrist and left shoulder pain.  Claimant, at 
 
         that time, was referred by Dr. Deranleau to an orthopedic 
 
         surgeon, A. B. Grundberg, M.D., who first saw claimant on June 1, 
 
         1984 for a complaint that his right hand was falling asleep with 
 
         pain and numbness in the carpal tunnel and metacarpal areas of 
 
         claimant's right hand radiating into the elbow which had "come on 
 
         gradually over the last several months."  Dr. Grundberg's 
 
         impression was that claimant was suffering from right carpal 
 
         tunnel syndrome and cross over tendinitis of the right wrist.  A 
 
         few days later, Dr. Grundberg stated to claimant that he had an 
 
         option of either quitting his employment at Oscar Mayer and 
 
         finding easier work or undergoing surgery which is not successful 
 
         20 percent of the time. Claimant expressed a desire to remain 
 
         working at Oscar Mayer and chose surgery.  On June 20, 1984, 
 
         claimant left work and underwent decompression surgery of the 
 
         right carpal tunnel syndrome and the cross over tendinitis 
 
         condition by Dr. Grundberg.  This surgery was performed despite a 
 
         negative EMG test for carpal tunnel syndrome although Dr. 
 
         Grundberg noted several clinical tests which were positive for 
 
         such a syndrome.
 
         
 
              Claimant was released for light duty work by Dr. Grundberg on 
 
         August 13, 1984, at which time claimant returned to work. Claimant 
 
         was then placed back onto the ham boning line but at a reduced 
 
         pace.  Despite the reduced pace, claimant again began to 
 
         experience difficulties with both of his arms which extended into 
 
         his shoulder and across his back.  Claimant returned to Dr. 
 
         Grundberg who placed him on cleanup duty for a month.  Claimant 
 
         then worked on the cleanup crew at that time which also involved 
 
         cleaning a dehairing machine.  This type of work involved use of 
 
         claimant's hands in order to pry the hair from the tongs in the 
 
         machine. Claimant remained on this job for the next several weeks.  
 
         In October, 1984, Dr. Grundberg noted that claimant was taking too 
 
         many pain pills and he tapered off from the quantity he 
 
         prescribed. At that time Dr. Grundberg noted that the left arm was 
 
         bothering claimant most of the time.  His impression at that time 
 
         was right carpal tunnel syndrome, postop; bilateral cubicle tunnel 
 
         syndrome; and, left carpal tunnel syndrome.  Dr. Grundberg 
 
         recommended that claimant remain on cleanup duty indefinitely or 
 
         bid on an easier job.  If claimant could not find easier work at 
 
         Oscar Mayer, Dr. Grundberg recommended that he look for employment 
 
         elsewhere.
 
         
 
              Claimant then continued to work until January 3, 1985, at 
 
         which time he was terminated by Oscar Mayer for leaving his job 
 
         at Oscar Mayer without permission.  The circumstances leading up 
 
         to this termination were in dispute at the hearing.  Claimant 
 
         testified that John Feather, Schumacher's assistant, told him 
 
         that he would have to find a permanent job other than the 
 
         temporary cleanup job.  Therefore, claimant said that he 
 
         completed a transfer request "bid" form.  Claimant testified that 
 
         he did not apply for any particular type of work.  Feather and 
 
                                                
 
                                                         
 
         Schumacher disagreed with claimant's testimony.  He testified 
 
         that claimant was under no compulsion to change jobs and that 
 
         claimant voluntarily completed a transfer request to find lighter 
 
         work on the cut floor.  The transfer request form indicates that 
 
         claimant requested a transfer to the cut floor.
 
         
 
              Claimant said that when he started the new job on the cut 
 
         floor, he could not physically tolerate the work as it exceeded 
 
         Dr. Grundberg's restrictions against lifting over 20 pounds. 
 
         Claimant said that he complained to his foreman who stated that 
 
         he was unaware of any such restrictions.  Claimant said that he 
 
         then became angry and told his foreman that he would go home to 
 
         get the written restriction note from Dr. Grundberg.  Claimant 
 
         stated that the foreman told him that he should do so.  The 
 
         foreman in the company records indicates that claimant never told 
 
         him that he was leaving.  Claimant said at the hearing that he 
 
         left the plant at lunchtime and upon leaving he discussed the 
 
         matter with union officials.  Claimant then arrived at home and 
 
         discussed the matter with his mother and then returned to the 
 
         plant but well after the usual lunch break time.  Apparently, he 
 
         did not return with any note from Dr. Grundberg.  Claimant 
 
         learned upon arriving at Oscar Mayer that he was terminated.  
 
         Claimant then filed a grievance which was ultimately denied by 
 
         the company but that company officials agreed at the final step 
 
         of the grievance process not to contest claimant's claim for 
 
 
 
                                     
 
                                                         
 
         unemployment compensation benefits. In his deposition, claimant's 
 
         story as to the circumstances leading up to the termination was 
 
         somewhat different then his testimony at hearing.  In his 
 
         deposition, claimant said that he only told union officials that 
 
         he was leaving work, not his foreman.
 
         
 
              Dr. Grundberg's records indicate that on November 20, 1984, 
 
         the doctor gave claimant a note that claimant should remain on 
 
         cleanup duty for three months.  As indicated above, Dr. Grundberg 
 
         in October, 1984, had indicated to claimant that he should bid on 
 
         an easier job.  Dr. Grundberg did not impose written permanent 
 
         work restrictions against pushing, pulling, or lifting over 20 
 
         pounds until after an office visit on January 11, 1985, 
 
         subsequent to claimant's termination.  Feather and Schumacher 
 
         testified that under the transfer rules, claimant could have 
 
         terminated the transfer and returned to the cleanup crew if he 
 
         was dissatisfied for any reason with the kill floor job.  They 
 
         further testified that claimant was terminated only for the 
 
         reason of leaving his job without permission which they contend 
 
         is a very serious violation of company rules and in an assembly 
 
         line type of packing plant where each job must be manned for the 
 
         line to remain operative.
 
         
 
              In May, 1985, claimant returned to Dr. Grundberg with new 
 
         complaints of a stiff neck and Dr. Grundberg diagnosed a possible 
 
         cervical radiculitis and ordered a myelogram test.  Dr. Grundberg 
 
         stated that claimant had such cervical problems extending into 
 
         his upper extremities for years.  The myelogram was performed at 
 
         Iowa Methodist in September, 1985, and the test results were 
 
         normal. However, shortly after the myelogram test claimant 
 
         suffered what was called at the time "grand mal seizure" and 
 
         temporarily lost consciousness.  Claimant has not had such a 
 
         seizure or a loss of consciousness since that time but claimant 
 
         now contends that his neck and back have hurt since that time.  
 
         Dr. Grundberg diagnosed claimant's back difficulties as chronic 
 
         strain of the cervical spine.  All EMG tests performed upon 
 
         claimant since that time have remained normal.  Claimant last saw 
 
         Dr. Grundberg in May, 1986, and the doctor noted a continuation 
 
         of claimant's neck and shoulder pain.
 
         
 
              Claimant testified that he developed a drug dependency 
 
         problem from using the medication prescribed by Dr. Grundberg and 
 
         after Dr. Grundberg stopped prescribing this medication, he 
 
         obtained the same pain medication illegally from "the streets." 
 
         Eventually, claimant was diagnosed as a drug abuser for reliance 
 
         upon the medication prescribed by Dr. Grundberg.  This diagnosis 
 
         was made by Erle W. Fitz, D.O., who claimant said at the hearing 
 
         is a psychiatrist.  Dr. Fitz's background is not a part of the 
 
         record of this case.  There is also no indication on the medical 
 
         report submitted by Dr. Fitz what, if any, specialty in medicine 
 
         Dr. Fitz may have or whether his specialty is board certified. 
 
         According to claimant he underwent drug abuse therapy for 
 
         approximately 30 days in March of 1987.  Claimant is currently 
 
         suing Dr. Grundberg for malpractice because of his alleged drug 
 
         problem.  Claimant admitted at hearing that he lied in his 
 
                                                
 
                                                         
 
         deposition by stating that he was off drugs at the time of his 
 
         deposition for approximately four months.  However, claimant 
 
         testified at hearing that he has been off drugs for approximately 
 
         a year.  It should be noted that claimant requested and received 
 
         a prescription for pain medication from Peter Wirtz, M.D., only a 
 
         few weeks before the hearing in this case.
 
         
 
              After leaving Oscar Mayer claimant was unemployed for a 
 
         considerable length of time and drew unemployment compensation 
 
         benefits.  Claimant then worked for a brief period of time as a 
 
         car wash attendant and on a construction crew erecting grain 
 
         bins. Claimant states that he was compelled to quit both of these 
 
         jobs due to his hand and arm problems.  At the hearing, claimant 
 
         described a continuation of pain and loss of strength in both of 
 
         his arms, shoulders and back.  He complains of popping his 
 
         shoulders and wrist areas along with having a stiff neck on the 
 
         right side.  Claimant testified that symptoms appear after 
 
         activity such as raking leaves or while quickly turning his neck. 
 
         At the time of the hearing, claimant was working full time for 
 
         his father in the family newspaper business as an ad salesman and 
 
         printer.  Claimant denies performing any heavy work in such 
 
         employment.
 
         
 
              In February, 1985, Dr. Grundberg opined that claimant 
 
         suffers from a seven percent permanent partial impairment to the 
 
         right upper extremity and an eight percent permanent partial 
 
         impairment to the left upper extremity.  Dr. Grundberg did not 
 
         give a specific opinion dealing with the causal connection of 
 
         claimant's symptoms to his work.  David B. McClain, D.O., another 
 
         orthopedic surgeon, opined that claimant suffers from bilateral 
 
         carpal tunnel syndrome and rates the permanent partial impairment 
 
         as 15 percent to each upper extremity with an overall body as a 
 
         whole impairment of nine percent.  Dr. McClain did not opine as 
 
         to the causal connection of this impairment to claimant's work.
 
         
 
              Peter D. Wirtz, M.D., a board certified orthopedic surgeon, 
 
         examined claimant in September, 1985, and again in November, 
 
         1987. At the time of his first exam, Dr. Wirtz reports that 
 
         claimant also complained to him of low back pain along with his 
 
         arm, shoulder and neck difficulties.  In his deposition, Dr. 
 
         Wirtz believes that claimant's arm symptoms are work related but 
 
         disagrees with the carpal tunnel syndrome diagnosis of Dr., 
 
         Grundberg and likewise disagrees with the need for carpal tunnel 
 
         release surgery performed by Dr. Grundberg.  Dr. Wirtz does not 
 
         believe that a carpal tunnel release surgery is appropriate 
 
         without a positive EMG test and he notes that all of claimant's 
 
         past EMG tests were negative.  He admits, however, that he did 
 
         not attempt to rate claimant's pain, loss of strength or 
 
         sensation under the most recent AMA Guidelines.  Dr. Wirtz also 
 
         does not believe that claimant has suffered permanent partial 
 
         impairment due to the negative EMG test.  Given a history of 
 
         prior cervical problems and no cervical problems until after 
 
         claimant left his employment at Oscar Mayer, Dr. Wirtz further 
 
         does not believe that any of claimant's cervical or low back pain 
 
         was work related.
 
                                                
 
                                                         
 
         
 
              Claimant's appearance and demeanor at the hearing failed to 
 
         indicate that he was testifying in a candid and truthful manner.
 
         
 
                              APPLICABLE LAW AND ANALYSIS
 
         
 
                I.  Claimant has the burden of proving by a preponderance 
 
         of the evidence that claimant received an injury which arose out 
 
         of and in the course of employment.  The words "out of" refer to 
 
         the cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active or dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              It is not necessary that claimant prove that his disability 
 
         results from a sudden unexpected traumatic event.  It is 
 
         sufficient to show that the disability developed gradually or 
 
         progressively from work activity over a period of time.  McKeever 
 
         Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  In 
 
         McKeever court also held that the date of injury in gradual 
 
         injury cases is the time when pain prevents the employee from 
 
         continuing to work. In McKeever, the injury date coincided with 
 
         the time claimant was finally compelled to give up his job.  This 
 
         date was then utilized in determining rate and the timeliness of 
 
         claimant's claim under Iowa Code section 85.26.
 
         
 
              Defendant argues that any application of the McKeever 
 
         gradual injury doctrine is not appropriate in this case because 
 
         claimant did not plead such a theory.  First, this deputy 
 
         commissioner is unaware of any rule of law which requires 
 
         litigants to plead legal theories before a hearing and in any 
 
         event the technical rules of pleading do not apply to 
 
         administrative proceedings.  The facts giving rise to a gradual 
 
         injury in this case were well known to defendant long before the 
 
         hearing given Dr. Grundberg's first report of a gradual onset of 
 
         symptoms.  Secondly, the application of the McKeever doctrine to 
 
         an overuse syndrome case certainly cannot be a surprise legal 
 
         theory as the McKeever case itself involved an overuse syndrome 
 
         type of case.
 
         
 
              Therefore, the McKeever gradual injury theory is applicable 
 
         to this case insofar as the fact that claimant has shown a 
 
         gradual injury which arose out of and in the course of his 
 
         employment. Although Dr. Grundberg did not give a specific causal 
 
         connection opinion, it is clear from his treatment and 
 
         restrictions he placed on claimant's activities that he believed 
 
         that claimant's hand and arm difficulties are work related.  
 
         Although Dr. Boulden disagrees with Dr. Grundberg's diagnosis and 
 
         form of treatment, he did admit that the symptomatology of 
 
                                                
 
                                                         
 
         claimant's hands and arms were work related.  Therefore, the 
 
         greater weight of the evidence establishes a gradual or 
 
         cumulative trauma type of injury process to both of claimant's 
 
         hands and arms which arose out of and in the course of 
 
         employment.
 
         
 
              On the other hand, claimant has not shown that the upper or 
 
         lower back problems were work related either by medical opinion 
 
         or the facts.  It is not clear, however, what Dr. Grundberg 
 
         believes as to the cause of claimant's upper back problems in 
 
         light of the statement that claimant had such problems for many 
 
         years in his report.  Claimant had no back problems while working 
 
         for Oscar Mayer.  Claimant claims that the back problems began 
 
         after the seizure following the myelogram.  This theory is not 
 
         plausible as the reason that the myelogram was first performed 
 
         was due to claimant's back pain complaints.
 
         
 
              A problem arises as to the injury date when you apply the 
 
         gradual or cumulative injury theory onto the facts of this case. 
 
         Claimant pleads an injury date of May 4, 1984 and this was 
 
         stipulated to by defendant.  However, this date really does not 
 
         coincide or relate to any period of disability.  Claimant did not 
 
         leave work until June 20 for the surgery.  Although claimant 
 
         permanently left his employment in January, 1985, such a date 
 
         could not be utilized for an injury date under the McKeever 
 
         doctrine because claimant left because he was angry with his 
 
         supervisor which led to his termination, not because of his pain. 
 
         Claimant is simply not found credible on his circumstances of his 
 
         termination.  Unfortunately, the McKeever court did not give 
 
         instructions as to how to arrive at an injury date when claimant 
 
         did not permanently leave his employment due to pain.  However, 
 
         it must be realized that under the gradual injury process, there 
 
         is a continuous injury each and every day claimant works in the 
 
 
 
                                     
 
                                                         
 
         injurious environment.  Consequently, there may be several injury 
 
         dates leading to several different types of disability over the 
 
         entire gradual or cumulative injury process.  Therefore, each 
 
         type of disability may have a different injury date although it 
 
         is a part of the same injury process.  The precise injury dates 
 
         in this case for the claimed disabilities will be dealt with 
 
         below.
 
         
 
              Claimant has not shown by the preponderance of the evidence 
 
         that he suffered an injury as the result of his claim of drug 
 
         abuse.  This deputy commissioner must know more about Dr. Fitz to 
 
         accept an opinion by him as to the causal connection of 
 
         claimant's alleged drug addiction problems especially when 
 
         claimant admitted to obtaining drugs "from the streets."  Also, 
 
         no lasting effects from the seizure following the myelogram has 
 
         been shown to constitute an injury to claimant's spine or the 
 
         brain.
 
         
 
              Finally, claimant has not shown that he has an injury to 
 
         either of his shoulders or an injury into the body as a whole. 
 
         Subjective pain complaints alone are not sufficient to establish 
 
         an injury.  Claimant, in his testimony, complained about pain 
 
         radiating from his arms into his shoulders and across his back.  
 
         In this agency's experience, this could be the result of many 
 
         causes unrelated to an injury to the tissues of the shoulder.  The 
 
         only treatment claimant has received relates to the arms and a 
 
         diagnostic test for his upper back.  The upper back problems, 
 
         however, have not been found to be work related.  Finally, there 
 
         is absolutely no medical evidence supporting any theory of an 
 
         injury to the shoulder; nor has there been any diagnosis or 
 
         specific treatment for a shoulder injury.
 
         
 
               II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         involves an initial determination of whether the work injury was 
 
         a cause of permanent physical impairment or permanent limitation 
 
         in work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to he given to 
 
                                                
 
                                                         
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). 
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant has shown only a work 
 
         injury to his arms as a result of the gradual injury process.  
 
         First, the views of the primary treating physician, Dr. 
 
         Grundberg, are given greater weight over the other physicians 
 
         rendering opinions in this case due to his familiarity with 
 
         claimant's condition on a clinical basis.  From the reports of 
 
         Dr. Grundberg, claimant established that he was off work for 
 
         treatment of his work related right hand and arm condition from 
 
         June 20, 1984 through August 12, 1984.  Claimant was not absent 
 
         again until his termination on January 3, 1985.  It was first 
 
         reported by Dr. Grundberg on October 23, 1985 to defendants that 
 
         claimant will have permanent effects from bilateral carpal tunnel 
 
         syndrome and bilateral cubicle tunnel syndrome and that claimant 
 
         will not be able to return to his normal job at Oscar Mayer.  Dr. 
 
         Grundberg recommended at that time that claimant either remain on 
 
         cleanup duty indefinitely or find easier work.  Dr. Grundberg 
 
         ultimately rated claimant's permanent impairment after claimant 
 
         left work in January, 1985, but there does not appear to be any 
 
         evidence that claimant's condition changed between October of 
 
         1984 and January of 1985.
 
         
 
              Such facts as set forth above under a gradual type injury 
 
         process give rise to two injury dates for purposes of awarding 
 
         disability benefits.  The first injury date is June 19, 1984 for 
 
         an injury to the right arm resulting in temporary total 
 
         disability extending from June 20, 1984 through August 12, 1984.  
 
         The benefits are labeled temporary total disability rather than 
 
         as healing period because Dr. Grundberg expected claimant to 
 
         return to full duty following the surgery as the purpose of the 
 
         surgery was to return claimant to work.
 
         
 
              A second injury date arises from the fact that claimant 
 
         returned to work in August, 1984 and was working at the time Dr. 
 
         Grundberg finally realized that claimant's bilateral conditions 
 
                                                
 
                                                         
 
         were permanent on October 23, 1984.  This injury was a 
 
         simultaneous injury on October 23, 1984 to both arms due to Dr. 
 
         Grundberg's simultaneous multiple diagnoses at that time of 
 
         bilateral carpal tunnel syndrome and bilateral cubicle tunnel 
 
         syndrome.  The October 23, 1984 date also should be the injury 
 
         date for awarding permanent disability benefits.  It would be 
 
         unfair to require defendant to pay permanent disability benefits 
 
         prior to the time the authorized physician realized that 
 
         claimant's condition was permanent.  Interest on benefits should 
 
         also be paid from that date as defendant should have realized 
 
         from the statement of Dr. Grundberg on October 23, 1984, that 
 
         claimant would have some extent of permanent disability to both 
 
         extremities although he was not actually rated until January, 
 
         1985.  Claimant also is not entitled to healing period benefits 
 
         after January 3, 1985 because it was apparent to Dr. Grundberg on 
 
         October 23, 1984 that claimant's condition was not expected to 
 
         improve.  Again, the only injuries found to be work related in 
 
         this case was limited to the arms.
 
         
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  Permanent partial disabilities 
 
         are classified as either scheduled or unscheduled.  A specific 
 
         scheduled disability is evaluated by the functional method; the 
 
         industrial method is used to evaluate an unscheduled disability. 
 
         Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 
 
         (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); 
 
         Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983). 
 
         When the result of an injury is loss to a scheduled member, the 
 
         compensation payable is limited to that set forth in the 
 
         appropriate subdivision of Code section 85.34(2).  Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  "Loss 
 
         of use" of a member is equivalent to "loss" of the member.  Moses 
 
         v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). 
 
         Pursuant to Code section 85.34(2)(u) the industrial commissioner 
 
         may equitably prorate compensation payable in those cases wherein 
 
         the loss is something less than that provided for in the 
 
         schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 
 
         1969).
 
         
 
              From the evidence submitted, it is found as a matter of fact 
 
         that the work injury of October 23, 1984 is a cause of both a 
 
         seven percent loss in use of the right upper extremity and an 
 
         eight percent loss of use of the left upper extremity resulting 
 
         occurring at the same time.  Based on such a finding, claimant is 
 
         entitled as a matter of law to a total of 45 weeks of permanent 
 
         partial disability benefits under Iowa Code section 85.34(2)(s) 
 
         which is nine percent of the 500 weeks, the maximum allowable 
 
         number of weeks two simultaneous injuries resulting in the same 
 
         accident.  The nine percent figure was arrived at by utilizinq 
 
         the AMA Guidelines referred to in the evidence by taking the 
 
         rating of Dr. Grundberg under these guidelines and arriving at a 
 
         total whole man percentage of nine percent.  See Simbro v. 
 
         Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983).
 
         
 
                                                
 
                                                         
 
              Claimant is also entitled to temporary total disability 
 
         benefits from June 20, 1984 through August 12, 1984 as a result 
 
         of the June 19, 1984 injury under Iowa Code section 85.33(1).  
 
         There is little question that claimant left work for surgery at 
 
         that time and was not released by Dr. Grundberg until August 12, 
 
         1984.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant was in the employ of Oscar Mayer at all times 
 
         material herein as a ham boner in a meat cutting plant operated 
 
         by Oscar Mayer.  Claimant's job at Oscar Mayer required the 
 
         extensive and repetitive use of both of his hands, wrists and 
 
         arms in a cold environment.
 
         
 
              2.  On June 19, 1984, claimant suffered an injury to the 
 
         right arm as a result of an overall gradual injury process 
 
         medically referred to as right carpal tunnel syndrome and cross 
 
         over tendinitis of the right wrist which arose out of and in the 
 
         course of his employment at OM.
 
         
 
              3.  The work injury of June 19, 1984, was a cause of a 
 
         period of temporary total disability during treatment and 
 
         recovery from the work injury from June 20, 1984 through August 
 
         12, 1984. Claimant underwent decompression surgery on June 20, 
 
         1984 and was not released to return to work by Dr. Grundberg 
 
         until August 13, 1984.
 
         
 
              4.  On October 23, 1984, claimant suffered a permanent 
 
         injury to both of his arms at the same time as a part of an 
 
         overall gradual injury process medically termed as bilateral 
 
         carpal tunnel syndrome and bilateral cubicle tunnel syndrome 
 
         which arose out of and in the course of his employment at Oscar 
 
 
 
                              
 
                                                         
 
         Mayer.  At this time, claimant's primary treating physician first 
 
         released that claimant would not return to full duty at Oscar 
 
         Mayer and that he would have to remain on light duty or seek work 
 
         elsewhere.
 
         
 
              5.  The work injury of October 23, 1984, was a cause of a 
 
         seven percent permanent partial impairment of the right upper 
 
         extremity and an eight percent permanent partial impairment to 
 
         the left upper extremity or a total whole man permanent 
 
         impairment of nine percent.  Claimant is now permanently 
 
         restricted from pushing, pulling and lifting over 20 pounds as a 
 
         result of the permanent condition of his arms.  Claimant 
 
         continues at the present time to suffer from pain, loss of 
 
         sensation and loss of strength in both of his upper extremities 
 
         as a result of the October 23, 1984 work injury.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits and to 
 
         temporary total disability benefits as awarded below.
 
         
 
                                    ORDER
 
         
 
              1.  Defendant shall pay to claimant forty-five (45) weeks of 
 
         permanent partial disability benefits at the rate of one hundred 
 
         sixty-five and 31/100 dollar ($165.31) per week from October 23, 
 
         1984.
 
         
 
              2.  Defendant shall pay to claimant temporary total 
 
         disability benefits from June 20, 1984 through August 12, 1984, 
 
         at the rate of one hundred sixty-five and 31/100 dollars 
 
         ($165.31) per week.
 
         
 
              3.  Defendant shall pay accrued benefits in a lump sum and 
 
         shall receive credit against this award for the twenty-five point 
 
         two-one-four-four-five (25.21445) weeks of weekly benefits 
 
         previously paid pursuant to the stipulation of the parties in the 
 
         prehearing report.
 
         
 
              4.  Defendant shall pay interest on benefits awarded herein 
 
         in a manner consistent with this opinion.
 
         
 
              5.  Defendant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendant shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 29th day of January, 1988.
 
         
 
         
 
         
 
                                                
 
                                                         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Stephen D. Lombardi
 
         Attorney at Law
 
         8230 Hickman Road, Suite G
 
         Des Moines, Iowa  50322
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa  50312
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            2209
 
                                            Filed January 29, 1988
 
                                            LARRY P. WALSHIRE
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BRUCE T. HOENING,
 
         
 
              Claimant,
 
                                                      FILE NO. 767993
 
         vs.
 
                                                   A R B I T R A T I 0 N
 
         OSCAR MAYER & CO.,
 
                                                      D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         2209
 
         
 
              Compensable gradual injury was found for bilateral carpal 
 
         tunnel syndrome.  As claimant did not leave his work permanently 
 
         as a result of pain, it was found that claimant suffered two 
 
         compensable injuries before he permanently left work as a result 
 
         of being terminated for leaving his work station without notice.  
 
         The first injury date resulted in a period of temporary total 
 
         disability and temporary total disability benefits were awarded.  
 
         A second injury date was found which resulted in permanent 
 
         disability.  The date utilized was the date when claimant's 
 
         physician first realized that the condition would be permanent and 
 
         claimant would not be able to return to his usual work.  Despite 
 
         subject complaints of shoulder and back pain, it was found that 
 
         the injuries were confined to the upper extremities.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         JOHN SHEEHAN,
 
                                                 File No.  768048
 
              Claimant,
 
                                               A R B I T R A T I 0 N
 
         VS.
 
                                                 D E C I S I 0 N
 
         CARGILL, INC.,
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by John Sheehan, 
 
         claimant, against Cargill, Inc., a self-insured employer, for the 
 
         recovery of benefits as a result of an alleged injury on June 14, 
 
         1984.  This matter was heard before the undersigned in Clarion, 
 
         Wright County, Iowa on June 18, 1987.  It was considered fully 
 
         submitted at the conclusion of the hearing.
 
         
 
              The record consists of the testimony of claimant, Peter 
 
         Range, Donald Aldrich, Candace Sheehan, Tom Olridge and Steve 
 
         Ramon; claimant's exhibits 1 through 10; and, defendant's exhibit 
 
         A.
 
         
 
                            STIPULATIONS AND ISSUES
 
         
 
              Pursuant to the pre-hearing report and order approving same, 
 
         the parties stipulated that:
 
         
 
              1.  There is an employer-employee relationship between the 
 
         claimant and defendant in this matter.
 
         
 
              2.  The claimant received an injury arising out of and in 
 
         the course of his employment on June 14, 1984.
 
         
 
              3.  The injury suffered by claimant caused temporary total 
 
         disability.
 
         
 
              4.  Claimant's rate of compensation is $204.55.
 
         
 
              5.  There is no issue in this matter concerning unpaid 
 
         medical expenses.
 
         
 
              6.  The defendant is entitled to credit for benefits 
 
         previously paid equal to three weeks and one day of healing 
 
         period and 35 weeks of permanent partial disability.
 
              
 
              The issues to be determined in this hearing are whether  or
 
         not the injury suffered by claimant was the cause of any 
 
         permanent disability and the extent of any disability suffered by 
 
         the claimant.
 

 
         
 
         
 
         
 
         SHEEHAN V. CARGILL, INC.
 
         Page   2
 
         
 
         
 
         
 
                                EVIDENCE PRESENTED
 
         
 
              John Sheehan, claimant, testified that he is 37 years old 
 
         and has a high school diploma from Clarion High School.  He 
 
         testified that he is married and has two children.  Claimant said 
 
         he worked at a produce store in Clarion while he was in high 
 
         school.  He stated that he had suffered from no prior back 
 
         problems except in 1971 when he was treated for bad arches.  This 
 
         treatment apparently relieved the back problem.
 
         
 
              Claimant stated that on June 14, 1984 he was working loading 
 
         trucks with bags of feed at the defendant's place of employment.  
 
         At approximately 9:00 a.m. he began to develop low back pain 
 
         which continued to get worse as the day went on.  Claimant said 
 
         he called in the next day and reported an injury and was advised 
 
         to seek medical attention.  Claimant said he sought medical 
 
         attention from a local physician and later, at the Mayo Clinic at 
 
         Rochester, Minnesota.
 
         
 
              Claimant testified that prior to his injury in June, 1984, 
 
         he was involved in a variety of activities including softball, 
 
         volleyball and some outside employment.  Since the date of the 
 
         injury, he has restricted these activities.  Claimant said he was 
 
         initially off work for five or six weeks and returned to work at 
 
         Cargill where he remains employed at the present time.  Claimant 
 
         added, however, that in 1986 he was laid off for a period of 
 
         about three months from June to September when he was off work 
 
         following a medical report from Mayo Clinic which recommended he 
 
         not lift more than 20 pounds.  Claimant was reexamined at the 
 
         Mayo Clinic, the lifting limits were raised to 50 pounds and 
 
         claimant returned to employment.  Claimant remains employed at 
 
         the defendant's.
 
         
 
              Candace Sheehan testified that she is married to the 
 
         claimant and has been for 15 years.  She stated that claimant was 
 
         employed with the defendant prior to their marriage and has 
 
         continued in their employ.  She reported that claimant suffered 
 
         no major back problems between 1971 and 1984, although he did 
 
         occasionally go to a chiropractor for some back pain.  She said 
 
         that, on June 14, 1984, she was not home when the claimant 
 
         arrived at home, but was aware of the fact he had injured himself 
 
         at work.  She stated that, prior to June, 1984, claimant was 
 
         involved in softball, golf, camping and occasional farm work.  
 
         She said that he has reduced those activities since the date of 
 
         the injury and seems to tire more quickly than before.  She said 
 
         claimant has
 
         
 
         
 
         
 
         
 
         quit playing golf.  She also reported that claimant now wears a 
 
         back brace and sometimes has trouble getting to sleep at night.  
 
         She said she was uncertain how long claimant was off work in 1984 
 
         following his injury.
 
         
 
              Peter Range testified that he is a middle manager at the 
 
         Clarion Coop and has known the claimant for several years.  He 
 
         reported that, prior to June, 1984, the claimant was an active 
 

 
         
 
         
 
         
 
         SHEEHAN V. CARGILL, INC.
 
         Page   3
 
         
 
         
 
         person and that he was unaware of any back problems from which 
 
         the claimant suffered.  He said that since then claimant has 
 
         given up many of his activities and occasionally complains of 
 
         back pain.
 
         
 
              Donald Aldrich testified that he has known the claimant 
 
         since 1969.  He stated that, while the claimant was employed at 
 
         the defendant's, he was a supervisor of the claimant until 1986.  
 
         He recalled that claimant received an injury in June, 1984 and 
 
         stated that he was unaware of any back problems suffered by the 
 
         claimant prior to that time.  He stated he was not sure how long 
 
         claimant was off work following the injury.  He said the claimant 
 
         did return to work after June, 1984, but his performance level 
 
         was not as good as it had been prior to the injury.
 
         
 
              Mr. Aldrich stated that in June, 1986, claimant was 
 
         discharged from the defendant's after he brought in a letter from 
 
         the Mayo Clinic which stated he had a lifting limit of 20 pounds.  
 
         He said that, after consultation with higher management at the 
 
         defendant's, it was decided that claimant should be terminated 
 
         for fear of risking further damage to his back.  He stated that 
 
         he was uncertain when in 1986 claimant returned to work for the 
 
         defendant.
 
         
 
              Tom Olridge testified that he is a branch manager with the 
 
         defendant and has been so since July, 1986.  Mr. Olridge said 
 
         that at the time he started his employment with the defendant, 
 
         the claimant was not working on the job.  He stated that, after 
 
         the defendant received a new evaluation concerning the claimant's 
 
         back, the claimant was returned to work and is handling the job 
 
         satisfactorily at the present time.  He stated that claimant has 
 
         received pay increases since his return to work.  Mr. Olridge 
 
         stated the claimant has a good record as an employee with the 
 
         defendant.
 
         
 
              Steve Ramon testified that he is employed by GAB, an 
 
         adjusting company employed by the defendant.  He reported having 
 
         several phone calls and discussions between the parties 
 
         concerning claimant's entitlement to permanent disability 
 
         benefits.  He denied having advised claimant to discharge his 
 
         attorney.  He stated that it was the defendant's policy to have 
 
         the claimant reevaluated periodically to ensure that he is 
 
         capable of doing the job.  He stated he was unaware of any 
 
         reports indicating that claimant was having any difficulty with 
 
         the job.
 
         
 
              Claimant's exhibits 1, 2, 3 and 4 are copies of reports from 
 
         J. D. Bartleson, M.D., of the Mayo Clinic, concerning the 
 
         claimant.  According to those reports, Dr. Bartleson concluded 
 
         that claimant suffers from spondylolysis of L3 of the right and a 
 
         mild bulging disc at the lumbrosacral area.  The doctor indicated 
 
         claimant is intact neurologically and would be assigned a 
 
         disability rating of approximately 7% of the body as a whole.  In 
 
         his May 27, 1986 letter, the doctor indicated that claimant 
 
         should have a 20-pound lifting limit.  In September, 1986, Dr. 
 
         Bartleson indicated that claimant should be allowed to return to 
 
         his place of employment at the defendant's.  In July, 1986, Lon 
 
         S. Weiland, D.C., stated that he had examined claimant most 
 
         recently and found that the lower extremity reflexes and 
 

 
         
 
         
 
         
 
         SHEEHAN V. CARGILL, INC.
 
         Page   4
 
         
 
         
 
         sensations were normal, muscle strength was normal and range of 
 
         motion was normal.  He does indicate possible pain in the 
 
         lumbosacral joint with lumbar extension.  Dr. Weiland also 
 
         recommended a 50-pound lifting restriction on the claimant.
 
         
 
              The reports from Dr. Bartleson clearly state that it is his 
 
         opinion there is a causal relationship between the injury 
 
         suffered by the claimant in 1984 and the symptomatic L3 
 
         spondylolysis from which claimant suffered.  The remaining 
 
         exhibits contain various correspondence, bills and progress notes 
 
         concerning claimant's treatment for his back condition.
 
         
 
              Defendant's exhibit A is a copy of the deposition testimony
 
         
 
         of John D. Bartleson, M.D. According to Dr. Bartleson's 
 
         curriculum vitae he is a specialist in neurology.  Dr. Bartleson 
 
         testified that he first examined the claimant in January, 1986.  
 
         At that time he took a history from the claimant concerning his 
 
         condition which indicated claimant suffered an injury in June of 
 
         1984 and continued to suffer problems through the date of Dr. 
 
         Bartleson's examination.  Dr. Bartleson stated that after taking 
 
         into account the history and x-ray findings of the claimant as 
 
         well as the result of his neurologic examination, he could not be 
 
         sure of the cause of claimant's pain, but later stated it was his 
 
         best medical opinion it was a result of the June, 1984 injury.
 
         
 
              Dr. Bartleson stated that his permanent disability rating of 
 
         the claimant was based upon the Minnesota compensation schedule.  
 
         He further stated that since his initial examination of the 
 
         claimant, he has noted continued improvement by the claimant and 
 
         has anticipated that the claimant would be able to continue in 
 
         his present employment.  The doctor stated that, as a general 
 
         rule, it would be best for an individual such as the claimant to 
 
         not engage in heavy employment, however based upon his assessment 
 
         of the claimant and claimant's personality, he believed that, in 
 
         this particular case, it would be advantageous for the claimant 
 
         to be able to continue in his employment.  The doctor added, 
 
         however, that because of the back condition from which claimant 
 
         suffers, he would be more susceptible to further injury.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
              While a personal injury does,not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury. [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury .... The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does not constitute a personal injury even 
 
              though the same brings about impairment of health or the 
 
              total or partial incapacity of the functions of the human 
 

 
         
 
         
 
         
 
         SHEEHAN V. CARGILL, INC.
 
         Page   5
 
         
 
         
 
              body.
 
         
 
        
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee. [Citations omitted.] The injury to the human body 
 
              here contemplated must be something, whether an accident or 
 
              not, that acts extraneously to the natural processes of 
 
              nature, and thereby impairs the health, overcomes, injures, 
 
              interrupts, or destroys some function of the body, or 
 
              otherwise damages or injures a part or all of the body.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 14, 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. 
 
         0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.
 
         
 
         
 
         
 
         
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              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, 760-761 
 
         (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) .
 
         
 
              Claimant has met his burden with regard to whether or not 
 
         the condition from which he suffers is permanent in character.  
 
         Since the injury suffered by the claimant is to the body as a 
 
         whole, the law requires that his disability be assessed in terms 
 

 
         
 
         
 
         
 
         SHEEHAN V. CARGILL, INC.
 
         Page   6
 
         
 
         
 
         of industrial disability.  This requires consideration of not 
 
         only the nature of the injury and functional impairment as a 
 
         result, but also such factors as age, education, qualifications 
 
         for other employment, ability to return to the same employment 
 
         and motivation.  Claimant is a credible witness.  It is clear he 
 
         is a hard-working individual and is in no way a malingerer or 
 
         seeking to make more of his disability than he has.
 
         
 
              The functional impairment assigned to claimant is not 
 
         pursuant to the AMA guides.  It is clear the claimant does not 
 
         have restrictions as to range of motion or a neurological 
 
         deficit.  He does, however, continue to have a 50-pound lifting 
 
         restriction and it is apparent that his work performance has 
 
         decreased as a result of his injury.  Claimant has been able to 
 
         return to full-time employment in the same occupation he was 
 
         engaged in at the time of the injury, however, he has had to 
 
         reduce his outside employment.  It is noted that, since the 
 
         initial functional impairment rating, Dr. Bartleson has found 
 
         claimant's condition to have improved somewhat.  Claimant is 
 
         obviously well-motivated to remain in the work force and at his 
 
         current job.
 
         
 
              It is difficult, if not impossible, at this time to 
 
         determine what the future course of claimant's injury may be.  
 
         While he may have a greater propensity toward further injury to 
 
         his back, it is by no means clear that such injury will occur.  
 
         This decision is based entirely upon claimant's condition as it
 
         
 

 
         
 
         
 
         
 
         SHEEHAN V. CARGILL, INC.
 
         Page   7
 
         
 
         
 
         
 
         
 
         presently exists and does not take into consideration any future 
 
         disability from which claimant may suffer as a result of this 
 
         condition.  The employer's continued evaluation of the claimant 
 
         should allow continued monitoring of his condition and should it 
 
         in any way worsen, he would be entitled to review-reopening.
 
         
 
              Based upon all the factors relative to industrial 
 
         disability, considering claimant's condition as it presently 
 
         exists and not anticipating any further disability of any nature, 
 
         it is found that claimant's industrial disability as a result of 
 
         his injury is equal to 12% of the body as a whole.  Defendant is 
 
         entitled to credit for 35 weeks previously paid leaving a 
 
         remaining 25 weeks of permanent partial disability to be paid.
 
         
 
              The record reflects that claimant has not been fully paid 
 
         for the healing period benefits for which he is entitled.  There 
 
         were apparently two weeks not paid to claimant during the time he 
 
         was on vacation.  The records of the Clarion Clinic, however, 
 
         Richard A. Young, M.D., treating physician, indicate claimant was 
 
         off work from June 15, 1984 and was released to return to work on 
 
         July 20, 1984.  This would indicate a healing period of five 
 
         weeks and one day.  Thus, claimant is entitled to an additional 
 
         two weeks of healing period benefits giving the defendant 
 
         appropriate credit for the three weeks and one day of healing 
 
         period previously paid.
 
         
 
                              FINDINGS OF FACT
 
         
 
               1.  On June 14, 1984 claimant suffered an injury to his low 
 
         back (L3) while lifting sacks of feed at work.
 
         
 
               2.  As a result of his injury, claimant was off work from 
 
         June 15, 1984 to July 21, 1984, a period of five weeks and one 
 
         day.
 
         
 
               3.  As a result of his injury, claimant materially 
 
         aggravated a preexisting spondylolysis at L3.
 
         
 
               4.  Claimant has minimal to moderate functional impairment 
 
         as a result of his injury and should not lift in excess of 50 
 
         pounds.
 
         
 
               5.  Claimant was able to return to work following his 
 
         injury, but was discharged in 1986 when a 20-pound lifting limit 
 
         was established.
 
         
 
               6.  Claimant was reinstated at work when his lifting limit 
 
         was increased to 50 pounds.
 
         
 
               7.  Claimant remains employed and is well motivated.
 
         
 
               8.  Claimant has reduced his recreational activities and
 
         eliminated some outside employment as a result of his injury.
 
         
 
         
 
               9.  It cannot be determined at present whether or how 
 
         quickly claimant's condition might deteriorate.
 

 
         
 
         
 
         
 
         SHEEHAN V. CARGILL, INC.
 
         Page   8
 
         
 
         
 
         
 
               10.  Claimant's rate of compensation is $204.55.
 
         
 
               11.  Claimant has been previously paid three weeks and one
 
         day of healing period and 35 weeks of permanent disability.
 
         
 
               12.  Claimant suffered permanent disability as a' result of 
 
         his injury equal to 12% of the body as a whole.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              IT IS THEREFORE CONCLUDED that claimant has proven by a 
 
         preponderance of the evidence that he suffered temporary total 
 
         disability of five weeks and one day and permanent partial 
 
         disability equal to 12% of the body as a whole as a result of his 
 
         injury.
 
         
 
                                    ORDER
 
         
 
              IT IS THEREFORE ORDERED that the defendant pay unto claimant 
 
         five (5) weeks and one (1) day of healing period and sixty (60) 
 
         weeks of permanent disability benefits at his rate of $204.55. 
 
         Such payments to commence June 15, 1984 and continue until paid 
 
         in full.
 
         
 
              IT IS FURTHER ORDERED that all accrued payments shall be 
 
         paid in a lump sum together with interest thereon.
 
         
 
              IT IS FURTHER ORDERED that the defendant shall be given 
 
         credit for all weekly compensation benefits previously paid.
 
         
 
              IT IS FURTHER ORDERED that costs are taxed to the 
 
              defendant.
 
         
 
              Signed and filed this 9th day of July 1987.
 
         
 
                                              STEVEN E. ORT
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         Copies To:
 
         
 
         Mr. E. W. Wilcke
 
         Attorney at Law
 
         826 1/2 Lake Street
 
         P.O. Box 455
 
         Spirit Lake, IA  51360
 
         
 
         Mr. David A. Opheim
 
         Attorney at Law
 
         Seventh Floor Snell Building
 
         P.O. Box 957
 
         Fort Dodge, Iowa 50501
 
         
 
 
            
 
 
 
 
 
                
 
                  
 
         
 
                                                      1801
 
                                                      Filed July 9, 1987
 
                                                      STEVEN E. ORT
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         JOHN SHEEHAN,
 
         
 
              Claimant,
 
                                                 File No. 768048
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         CARGILL, INC.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         _________________________________________________________________
 
         
 
         1801
 
         
 
              Claimant brought action to recover additional permanent 
 
         partial disability over and above 7% voluntarily paid by the 
 
         defendant.  Claimant had 7% rating and was able to return to same 
 
         work, but had to quit part-time jobs because of injury.  
 
         Additional 5% awarded.
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        GARY A. JONES
 
        
 
            Claimant,
 
                                         File No. 768299
 
        vs.
 
                                           A P P E A L
 
        H & W MOTOR EXPRESS,
 
                                         D E C I S I O N
 
            Employer,
 
            Self-Insured,
 
            Defendant.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision denying permanent 
 
        partial disability benefits as the result of an alleged injury on 
 
        April 6, 1984.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration hearing; claimant's exhibits A through Q, and S; and 
 
        defendant's exhibits 1 through 19. Both parties filed briefs on 
 
        appeal.
 
        
 
                                      ISSUES
 
        
 
        Claimant states the following issues on appeal:
 
        
 
        1. That the Deputy Industrial Commissioner erred in concluding 
 
        that there was only "an equipoise" of evidence on the issues of 
 
        causal connection and arising out of and in the course of 
 
        employment.
 
        
 
        2. That the Deputy Industrial Commissioner erred in failing to 
 
        assess the credibility of any of the witnesses who testified, 
 
        either live or by deposition.
 
        
 
        3. The Deputy Industrial Commissioner erred in denying the 
 
        Claimant's Motion to Strike Defendant's Supplemental Answers to 
 
        Interrogatories.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issues and the evidence.
 
        
 
        JONES VS. H & W MOTOR EXPRESS
 
        Page 2
 
        
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the evidence in conjunction with the law is 
 
        adopted.
 
        
 

 
        
 
 
 
 
 
                                 FINDINGS OF FACT
 
                                                
 
        1. Claimant was born on January 15, 1934.
 
        
 
        2. Claimant had a truck accident in 1969.
 
        
 
        3. Claimant's truck accident produced permanent numbness in the 
 
        calf of his left leg.
 
        
 
        4. Claimant had a torn left knee cartilage in 1977; a twisted 
 
        right knee for which he underwent surgery in 1979.
 
        
 
        5. Claimant was treated for low back strain and low back pain in 
 
        1971 and 1978.
 
        
 
        6. Claimant treated periodically with chiropractic care for back 
 
        pain through the course of his trucking career.
 
        
 
        7. On April 6, 1984, claimant slipped on an unraveled carpet roll 
 
        and fell forward on his stomach.
 
        
 
        8. Claimant worked the balance of the day unloading freight 
 
        without difficulty.
 
        
 
        9. Claimant had no pain at the time of the April 6, 1984, 
 
        incident.
 
        
 
        10. Claimant rested, self-treated and saw his chiropractic 
 
        physician during the weekend following the Friday, April 6, 1984, 
 
        incident.
 
        
 
        10. On the following Monday, claimant had symptoms in his right 
 
        leg, his low back, and in his left side.
 
        
 
        11. Claimant first left work on approximately April 13, 1984.
 
        
 
        12. Claimant saw William Basler, M.D., on April 16, 1984.
 
        
 
        13. Claimant treated with L. C. Strathman, M.D., and Warren N. 
 
        Verdeck, M.D., orthopaedists.
 
        
 
        14. Claimant underwent plain x-rays and a CT scan in early May 
 
        1984.
 
        
 
        15. The plain x-rays showed degenerative disc disease at L5-Sl 
 
        with vacuum disc phenomenon.
 
        
 
        JONES VS. H & W MOTOR EXPRESS
 
        Page 3
 
        
 
        
 
        16. The CT scan showed significant spurring and arthritic 
 
        changes.
 
        
 
        17. Vacuum disc phenomenon is associated with degenerative disc 
 
        disease of years' duration and would not have occurred in three 
 
        or four weeks.
 
        
 
        18. A myelogram had revealed nerve root entrapment and spinal 
 
        stenosis.
 
        
 
        19. The spinal stenosis represented arthritic changes in the back 
 
        with spurring of the facet joints and narrowing of the "little 
 
        holes" where nerves exit.
 
        
 
        20. Such change occurs over a long time and would clearly predate 
 

 
        
 
 
 
 
 
        an injury of less than a month earlier.
 
        
 
        21. A laminectomy was performed on September 25, 1984.
 
        
 
        22. A calcified or old herniated disc was found at the time of 
 
        the laminectomy.
 
        
 
        23. Claimant had a long history of gout in the left ankle.
 
        
 
        24. Gout can produce aching and stiffness as well as episodic 
 
        severe swelling and redness during an acute attack.
 
        
 
        25. Gout also involves the small joints of the back and can 
 
        "help" those to become arthritic.
 
        
 
        26. Claimant had only worked intermittently in the years 
 
        immediately prior to 1984.
 
        
 
        27. Claimant did not aggravate or accelerate his underlying 
 
        condition in his April 6, 1984 fall.
 
        
 
        28. Claimant had a worsening of symptoms which had been 
 
        intermittent and episodic for some time.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has established a work incident of April 6, 1984.
 
        
 
        Claimant has not established a work injury on April 6, 1984, 
 
        which arose out of and in the course of his employment and which 
 
        injury is causally related to claimed disability.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
        JONES VS. H & W MOTOR EXPRESS
 
        Page 4
 
        
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That claimant take nothing from these proceedings.
 
        
 
        That claimant is to pay the costs of this action, and more 
 
        specifically, claimant is to pay the costs of the deposition of 
 
        Scott Neff, D.O., but not in excess of one hundred fifty dollars 
 
        ($150); claimant is to pay the court reporting services for the 
 
        deposition of Dr. Neff in the amount of one hundred forty-one and 
 
        85/100 dollars ($141.85); the medical report by William John 
 
        Robb, M.D. in the amount of twenty-three dollars ($23.00); and 
 
        the charges for the court reporter at the hearing in the amount 
 
        of one hundred forty dollars ($140.00). Defendant shall pay the 
 
        costs of the evaluation by Dr. Robb pursuant to Iowa Code section 
 
        85.39. Defendant shall pay the costs for the partial 
 
        transcription of the hearing in the amount of fifty-eight and 
 
        50/100 ($58.50); the charges of Lewis Vierling in the amount of 
 
        one thousand four hundred twenty-four and 56/100 ($1,424.56); and 
 
        one hundred twenty-seven and 50/100 dollars ($127.50) for a court 
 
        reporter at the deposition of Gary Jones. Claimant is to pay for 
 
        the costs of the appeal.
 
        
 
        Signed and filed this 28th day of April, 1989.
 
        
 
        
 
        
 

 
        
 
 
 
 
 
                                        DAVID E. LINQUIST
 
                                     INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GARY A. JONES                              File No. 768299
 
         
 
              Claimant,                               A P P E A L
 
         
 
         vs.                                        D E C I S I O N
 
         
 
         H & W MOTOR EXPRESS,                          F I L E D
 
         
 
              Employer,                               APR 28 1989
 
              Self-Insured,
 
              Defendant.                     IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                             STATEMENT OF THE CASE
 
                                        
 
              Claimant appeals from an arbitration decision denying 
 
         permanent partial disability benefits as the result of an alleged 
 
         injury on April 6, 1984.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits A through Q, and S; and 
 
         defendant's exhibits 1 through 19.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                   ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              1.  That the Deputy Industrial Commissioner erred in 
 
              concluding that there was only "an equipoise" of evidence on 
 
              the issues of causal connection and arising out of and in 
 
              the course of employment.
 
         
 
              2.  That the Deputy Industrial Commissioner erred in failing 
 
              to assess the credibility of any of the witnesses who 
 
              testified, either live or by deposition.
 
         
 
              3.  The Deputy Industrial Commissioner erred in denying the 
 
              Claimant's Motion to Strike Defendant's Supplemental Answers 
 
              to Interrogatories.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                 APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                   ANALYSIS
 
                                                
 
                                                         
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant was born on January 15, 1934.
 
         
 
              2.  Claimant had a truck accident in 1969.
 
         
 
              3.  Claimant's truck accident produced permanent numbness in 
 
         the calf of his left leg.
 
         
 
              4.  Claimant had a torn left knee cartilage in 1977; a 
 
         twisted right knee for which he underwent surgery in 1979.
 
         
 
              5.  Claimant was treated for low back strain and low back 
 
         pain in 1971 and 1978.
 
         
 
              6.  Claimant treated periodically with chiropractic care for 
 
         back pain through the course of his trucking career.
 
         
 
              7.  On April 6, 1984, claimant slipped on an unraveled 
 
         carpet roll and fell forward on his stomach.
 
         
 
              8.  Claimant worked the balance of the day unloading freight 
 
         without difficulty.
 
         
 
              9.  Claimant had no pain at the time of the April 6, 1984, 
 
         incident.
 
         
 
              10.  Claimant rested, self-treated and saw his chiropractic 
 
         physician during the weekend following the Friday, April 6, 1984, 
 
         incident
 
         
 
              10.  On the following Monday, claimant had symptoms in his 
 
         right leg, his low back, and in his left side.
 
         
 
              11.  Claimant first left work on approximately April 13, 
 
         1984.
 
         
 
              12.  Claimant saw William Basler, M.D., on April 16, 1984.
 
         
 
              13.  Claimant treated with L. C. Strathman, M.D., and Warren 
 
         N. Verdeck, M.D., orthopaedists.
 
         
 
              14.  Claimant underwent plain x-rays and a CT scan in early 
 
         May 1984.
 
         
 
              15.  The plain x-rays showed degenerative disc disease at 
 
         L5-S1 with vacuum disc phenomenon.
 
         
 
              16.  The CT scan showed significant spurring and arthritic 
 
         changes.
 
         
 
                                                
 
                                                         
 
              17.  Vacuum disc phenomenon is associated with degenerative 
 
         disc disease of years' duration and would not have occurred in 
 
         three or four weeks.
 
         
 
              18.  A myelogram had revealed nerve root entrapment and 
 
         spinal stenosis.
 
         
 
              19.  The spinal stenosis represented arthritic changes in 
 
         the back with spurring of the facet joints and narrowing of the 
 
         "little holes" where nerves exit.
 
         
 
              20.  Such change occurs over a long time and would clearly 
 
         predate an injury of less than a month earlier.
 
         
 
              21.  A laminectomy was performed on September 25, 1984.
 
         
 
              22.  A calcified or old herniated disc was found at the time 
 
         of the laminectomy.
 
         
 
              23.  Claimant had a long history of gout in the left ankle.
 
         
 
              24.  Gout can produce aching and stiffness as well as 
 
         episodic severe swelling and redness during an acute attack.
 
         
 
              25.  Gout also involves the small joints of the back and can 
 
         "help" those to become arthritic.
 
         
 
              26.  Claimant had only worked intermittently in the years 
 
         immediately prior to 1984.
 
         
 
              27.  Claimant did not aggravate or accelerate his underlying 
 
         condition in his April 6, 1984 fall.
 
         
 
              28.  Claimant had a worsening of symptoms which had been 
 
         intermittent and episodic for some time.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant has established a work incident of April 6, 1984.
 
         
 
              Claimant has not established a work injury on April 6, 1984, 
 
         which arose out of and in the course of his employment and which 
 
         injury is causally related to claimed disability.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from these proceedings.
 
         
 
              That claimant is to pay the costs of this action, and more 
 
         specifically, claimant is to pay the costs of the deposition of 
 
         Scott Neff, D.O., but not in excess of one hundred fifty dollars 
 
                                                
 
                                                         
 
         ($150); claimant is to pay the court reporting services for the 
 
         deposition of Dr. Neff in the amount of one hundred forty-one and 
 
         85/100 dollars ($141.85); the medical report by William John 
 
         Robb, M.D. in the amount of twenty-three dollars ($23.00); and 
 
         the charges for the court reporter at the hearing in the amount 
 
         of one hundred forty dollars ($140.00).  Defendant shall pay the 
 
         costs of the evaluation by Dr. Robb pursuant to Iowa Code section 
 
         85.39. Defendant shall pay the costs for the partial 
 
         transcription of the hearing in the amount of fifty-eight and 
 
         50/100 ($58.50); the charges of Lewis Vierling in the amount of 
 
         one thousand four hundred twenty-four and 56/100 ($1,424.56); and 
 
         one hundred twenty-seven and 50/100 dollars ($127.50) for a court 
 
         reporter at the deposition of Gary Jones.  Claimant is to pay for 
 
         the costs of the appeal.
 
         
 
              Signed and filed this 28th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
 
 
                             
 
                                                         
 
         
 
         Mr. Tom Riley
 
         Mr. Thomas J. Currie
 
         Attorneys at Law
 
         3401 Williams Blvd. SW
 
         P.O. Box 998
 
         Cedar Rapids, Iowa  52406-0998
 
         
 
         Mr. Roland D. Peddicord
 
         Mr. Stephen W. Spencer
 
         Attorneys at Law
 
         Suite 300, Fleming Building
 
         P.O. Box 9130
 
         Des Moines, Iowa  50306-9130
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
                          
 
                          
 
                                            51100
 
                                            Filed April 28, 1989
 
                                            DAVID E. LINQUIST
 
         
 
         BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GARY A. JONES
 
         
 
              Claimant,
 
                                                 File No. 768299
 
         vs.
 
                                                   A P P E A L
 
         H & W MOTOR EXPRESS,
 
                                                  D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         51100
 
         
 
              Deputy's determination that claimant failed to show his 
 
         injury arose out of and in the course of employment affirmed on 
 
         appeal.