1108.10, 1402.30, 1805
 
                                                 2202, 2206
 
                                                 Filed August 3, 1988
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RODNEY ALEXANDER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 768340
 
         
 
         GREAT PLAINS BAG CORPORATION,
 
                                                A R B I T R A T I O N
 
         
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         SELF INSURERS SERVICE, INC.
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108.10, 1402.30, 1805, 2202, 2206
 
         
 
              Claimant's decedent was afflicted with severe coronary 
 
         artery disease.  He collapsed at his place of employment after 
 
         engaging for approximately two and one-half hours in what was at 
 
         most moderate exertion.  It was found that the exertion on the 
 
         day of death was no greater than the exertion that was normal and 
 
         typical for the employment.  It was further found that the 
 
         exertion was no greater than the exertion of normal, 
 
         nonemployment life.  The death was held to be noncompensable.
 
 
 
 
 
 
        
 
 
 
 
 
        
 
        
 
                                          2202
 
                                          Filed October 17, 1989
 
                                          DAVID E. LINQUIST
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        RODNEY ALEXANDER,
 
        
 
            Claimant,
 
                                                   File No. 768340
 
        vs .
 
        
 
        GREAT PLAINS BAG CORPORATION,                A P P E A L
 
        
 
            Employer,
 
                                                   D E C I S I O N
 
        and
 
        
 
        SELF INSURERS SERVICE, INC.,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        2202
 
        
 
        
 
            Claimant suffered a heart attack at work on a loading dock. 
 
        The temperature was approximately 65 degrees. Claimant had been 
 
        doing physical work, but no more than the degree of exertion he 
 
        had been accustomed to for many years. The autopsy revealed that 
 
        claimant suffered from severe coronary disease, with his arteries 
 
        nearly completely blocked. Affirmed deputy's determination that 
 
        claimant's death was not the result of unusual exertion, and not 
 
        compensable.
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VERNON E. BUNNER,
 
         
 
              Claimant,
 
                                                    File No. 768495
 
         VS.
 
                                                      A P P E A L
 
         J. I. CASE CO.,
 
                                                      R U L I N G
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
              Claimant appeals from a ruling on motion for summary 
 
         judgment which found that claimant's action is barred by the 
 
         two-year statute of limitations period of section 85.26(l), Code 
 
         of Iowa.
 
         
 
              Although this agency has no legal obligation to do so, 
 
         claimant was sent by certified mail on October 29, 1986 a copy of 
 
         the relevant portions of Division of Industrial Services Rule 
 
         343-4.28 concerning appellate briefs which was returned to this 
 
         agency on November 24, 1986 unclaimed.  On November 25, 1986 
 
         claimant was once again sent a copy of Rule 343-4.28 by regular 
 
         mail.  Review of the file indicates that no appellate briefs have 
 
         been filed.
 
         
 
              As claimant specifies no errors on appeal, the summary 
 
         judgment will be considered generally to determine its compliance 
 
         with the law.
 
         
 
              Claimant filed his petition for arbitration on September 11, 
 
         1986 alleging an injury date of October 18, 1983.  Claimant's 
 
         petition failed to indicate that any weekly benefits had been 
 
         paid.  In his resistance to defendant's motion for summary 
 
         judgment, claimant asserts that he was paid weekly benefits 
 
         within three years from the date of the original notice in this 
 
         case.  However, claimant presents no affidavits in support of 
 
         this assertion.  Review of the industrial commissioner's file in 
 
         this case indicates that no payment reports have been filed by 
 
         defendant.  Further, in his affidavit, Larry Ruschill, safety 
 
         supervisor at defendant-J.I. Case Co., states that no payments of 
 
         weekly benefits have been made to claimant.
 
         
 
              Claimant has pled no facts which would indicate that he 
 
         was unaware of the compensable nature of his injury when that 
 
         injury occurred.
 
         
 

 
         
 
         
 
         
 
         BUNNER V. J. I. CASE CO.
 
         Page   2
 
         
 
         
 
              WHEREFORE, the ruling of the deputy is affirmed.
 
         
 
              THEREFORE, claimant's petition is dismissed.
 
         
 
              All costs are taxed to claimant.
 
         
 
         
 
              Signed and filed this 12th day of June, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID E.LINQUIST
 
                                         ACTING INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Vernon Bunner
 
         4602 24th Avenue Ct.
 
         Moline, IL 61265
 
         CERTIFIED MAIL
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         111 East 3rd Street
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa 52801-1550
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     2402
 
                                                     Filed June 12, 1987
 
                                                     DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         VERNON E. BUNNER,
 
         
 
              Claimant,
 
                                                     File No. 768495
 
         VS.
 
                                                       A P P E A L
 
         J. I. CASE CO.,
 
                                                       R U L I N G
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         2402
 
         
 
              Summary judgment granted where claimant's petition was filed 
 
         almost three years after the injury date alleged in his petition. 
 
          The petition did not indicate that any weekly benefits had been 
 
         paid.  Claimant presented no affidavits in support of his 
 
         assertion that he was paid weekly benefits within three years of 
 
         the date that he filed his petition.  No payment reports have 
 
         been filed by defendant.  Defendant submitted the affidavit of 
 
         their safety supervisor that no weekly benefits have been paid to 
 
         claimant.
 
         
 
              Claimant pled no facts which would indicate that he was 
 
         unaware of the compensable nature of his injury when that injury 
 
         occurred.  Claimant appeared in this action pro se.  Affirmed.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEL P. BUCKLES,
 
         
 
              Claimant,                               File No. 768671
 
         
 
         VS.
 
                                                  A R B I T R A T I 0 N
 
         J. I. CASE COMPANY,
 
                                                     D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Del P. 
 
         Buckles, claimant, against J. I. Case, self-insured employer, for 
 
         benefits as a result of an alleged injury on June 19, 1984.  A 
 
         hearing was held in Davenport, Iowa, on December 18, 1986 and the 
 
         case was submitted on that date.
 
         
 
              The record consists of the testimony of claimant; claimant's 
 
         exhibits 1 through 3; defendant's exhibit A through Z and AA.  At 
 
         hearing, defendant was allowed an opportunity to introduce 
 
         additional materials into the record of this case.  Neither the 
 
         agency or claimant have received these materials and, therefore, 
 
         they are not received or considered.  Defendant stated in its 
 
         letter brief that it was unable to locate the materials it had 
 
         sought to introduce into evidence.  Claimant also filed a brief.
 
         
 
              The parties stipulated that claimant's weekly rate of 
 
         compensation is $370.86; that claimant's injury arose out of and 
 
         in the course of his employment with J. I. Case; that healing 
 
         period benefits are not at issue; that permanent partial 
 
         disability benefits commence on June 11, 1985, if awarded; that 
 
         claimant has been paid medical benefits and 101 weeks of 
 
         disability benefits; and that claimant is entitled to vocational 
 
         rehabilitation benefits pursuant to Iowa Code section 85.70.
 
         
 
                                      ISSUES
 
         
 
              The contested issues are:
 
         
 
              1)  Whether there is a causal relationship between 
 
         claimant's injury of June 19, 1984 and his asserted disability; 
 
         and
 
         
 
              2)   Nature and extent of disability.
 
                                        
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that he was 33 years of age at time of 
 
         hearing having been born on December 31, 1952.  He started 
 
         working for J. I. Case on September 11, 1972.  Prior to starting 
 

 
         
 
         
 
         
 
         BUCKLES V. J. I. CASE COMPANY
 
         Page   2
 
         
 
         
 
         work for J. I. Case, claimant worked at a gas station and for 
 
         Fuller Brush.  Claimant graduated from high school in 1971 and 
 
         attended the University of Iowa for one year.  He is currently 
 
         working on an "associate degree" in computer-aided design or 
 
         manufacturing.  He started this program in the fall of 1985.  
 
         Initially, he received rehabilitation benefits through the state 
 
         of Iowa to pursue this associate degree.  This is an 82 hour 
 
         program (six semesters) and he needs to complete 22 more hours.  
 
         He will probably graduate in the fall of 1987.
 
         
 
              Claimant testified that he worked in a warehouse at J. I. 
 
         Case for his first two years of his employment.  From 1974-1984, 
 
         he was a welder at J. I. Case and his only injury during this 
 
         period (other than the back injury at issue here) was a left knee 
 
         injury.  Claimant described a motorcycle accident in which he 
 
         injured his neck.  He also stated that he injured an arm in a 
 
         ladder incident and this ladder incident did not result in any 
 
         back injury (claimant worked the day after the incident).
 
         
 
              On June 19, 1984, claimant injured his back and reported 
 
         this injury to a nurse.  He initially was off work for a week as 
 
         a result of this back injury.  Claimant had surgery in early 
 
         1985, as he recalls, and stated that it was an L5-Sl disc 
 
         laminectomy.  Claimant testified that in June 1985, he was 
 
         advised he could return to work with a 30-40 pound weight 
 
         restriction with no repetitive lifting or stooping.  But see 
 
         exhibit Z (twenty-five pound weight restriction imposed by Dr.  
 
         Milas); Dr. Chesser may have imposed the 30-40 pound restriction.  
 
         The doctor who performed claimant's surgery (R. W. Milas, M.D.; 
 
         see exhibit E) advised him to seek retraining.  Claimant 
 
         testified that he has friends [who have] "less seniority [than he 
 
         would have if he was still at J. I. Case who] are welders at J. 
 
         I. Case."  Claimant currently has problems with pain and does not 
 
         shovel the walk anymore.
 
         
 
              On cross-examination, claimant stated that his motorcycle 
 
         accident occurred in 1972 or 1974.  This accident resulted in a 
 
         strain to the neck and a mild concussion and he missed six months 
 
         of work as a result of his injuries.  Claimant could not recall 
 
         when the "ladder incident" occurred.  In January 1978, claimant 
 
         injured a knee and was off work from January 1978 through 
 
         November 1980 as a result.  In April 1978, he fell on some stairs 
 
         and was knocked unconscious, but no injuries resulted.  Claimant 
 
         described his current schooling as "working with computers and 
 
         entering drawings into computers."  He has interviewed with 
 
         Square D, but was not hired because he does not graduate until 
 
         the fall of 1987, if then.
 
         
 
              Exhibit 1, page 1 (dated December 12, 1985), is authored by 
 
         Robert J. Chesser, M.D., and contains a 13 percent whole body 
 
         rating.  On page 2 of exhibit 1, Dr. Chesser stated:
 
         
 
              I indicated to Mr. Buckles that I felt he could not return 
 
              to heavy construction work and he would need to look at 
 
              retraining and a more sedentary job that would require 
 
              primarily sit down activities.  I feel that he would require 
 
              a 30-40 lb. weight limit.
 
         
 
              Exhibit 2 is the deposition of Harold Krause taken on 
 

 
         
 
         
 
         
 
         BUCKLES V. J. I. CASE COMPANY
 
         Page   3
 
         
 
         
 
         December 2, 1986.  Mr. Krause is a teacher at Black Hawk College 
 
         where claimant attends school, and teaches in the area of 
 
         mechanical technology including "computer-assisted drafting." 
 
         Krause teaches claimant.  On page 13, Krause stated: "[H]e's very 
 
         responsible, he's alway at class, he always gets his homework 
 
         done.  He's just one of these type of people that gets it done." 
 
         On page 14, he stated further: "He's very dependable."
 
         
 
              On page 2 of exhibit A, Dr. Chesser stated on December 17, 
 
         1984:  "In regards to work activity at this time, I feel he 
 
         should be restricted to a 25 to 30 pound weight limit and no 
 
         repetitive bending."  Exhibit U states that on March 29, 1985 
 
         claimant had a "right hemilaminectomy and foraminotomy at the 
 
         L5-Sl level, with excision of disc."
 
         
 
              Exhibit AA is the deposition of Dr. Chesser taken on 
 
         December 12, 1986 and he specializes in physical medicine and 
 
         rehabilitation.  Dr. Chesser stated on page 5:
 
         
 
              [H]e had hurt his back in June of '84.  Since that time he 
 
              was noting intermittent low back pain and pain into his 
 
              groin regions bilaterally.  The pain was somewhat more 
 
              noticeable on the left.  He indicated that the symptoms 
 
              would subside for several weeks, but then they would 
 
              return.
 
         
 
              On page 7, Dr. Chesser stated that he was not told by 
 
         claimant of a ladder incident that allegedly occurred on May 11, 
 
         1983.  On page 13-14, he commented that "injection-type 
 
         treatment" has not been successful in claimant's case and, 
 
         therefore, a laminectomy was performed by Dr. Milas because 
 
         claimant had a herniated disc.  On page 19, Dr. Chesser stated 
 
         that after surgery claimant had a significant decrease in his leg 
 
         pain.  Dr. Chesser treated claimant until June 10, 1985, but did 
 
         examine claimant on December 12, 1985 at which time claimant 
 
         noted pain in his low back with occasional hip pain.  Claimant's 
 
         surgery was Oa success in addressing the impingement of nerve 
 
         roots that serve the legs."  Id. at 23.  The surgery, however, 
 
         resulted in "limitations in his range of motion." Id. at 27.  On 
 
         page 29, he clarified this by stating the motion limitations 
 
         relate to "forward flexion and lateral bending."  The following 
 
         appears on page 31 with Mr. Shepler asking the question:
 
         
 
              Q.  I take it even for a surgeon like Dr. Milas, but 
 
              especially for yourself with the records you .have available 
 
              to you, it is pretty difficult to say whether Mr. Buckles 
 
              might have had some degenerative conditions in his back that 
 
              pre-existed his herniated disc?
 
         
 
              A.  Correct.
 
         
 
              On page 32, Dr. Chesser imposed a 13 percent whole body 
 
         rating and on page 33 stated a 30-40 pound weight restriction.  
 
         On page 35, he stated that claimant got a "decent surgical 
 
         result." On page 45, he stated in response to a question by Mr. 
 
         Liebbe:
 
         
 
              Q.  If I understand you correctly, you are saying that the 
 
              injury he reported was the cause of that central 
 

 
         
 
         
 
         
 
         BUCKLES V. J. I. CASE COMPANY
 
         Page   4
 
         
 
         
 
              herniation?
 
         
 
              A.  Yes.
 
         
 
             On page 53, Dr. Chesser responded to a question posed by Mr. 
 
         Shepler:
 
         
 
              Q.  Ordinarily if he had had the type of herniation 
 
              surgically addressed by Dr. Milas right after the June 1984 
 
              accident, you would normally expect some compromise of that 
 
              S-1 nerve root either right after the accident or certainly 
 
              by the time you saw him in December 1984, wouldn't you?
 
         
 
              A.  I would.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the injury of June 19, 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).
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by
 
         
 
         
 
         the industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 
         injuries were fresh; the arrangement as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony may be considered.  Both parties may bring all this 
 
         information to the attention of the factfinder as either 
 
         supporting or weakening the physician's testimony and opinion.  
 
         All factors go to the value of the physician's testimony as a 
 
         matter of fact, not as a matter of law.  Rockwell Graphic 
 
         Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
              I am convinced by Dr. Chesser's testimony that the 
 
         work-related injury of June 19, 1984 caused claimant's herniated 
 
         disc with the resulting surgery.  The fact that the herniation 
 
         did not occur shortly after the incident in June 1984 is not 
 
         sufficient, given all the evidence of record.to persuade me that 
 
         there is no causal connection between claimant's work-related 
 
         injury and the disc herniation he ultimately experienced.  Also, 
 
         I am not convinced that claimant had low back problems that 
 
         predated June 1984 that caused the impairment he now suffers; 
 
         that is, I am persuaded that he recovered from the injuries he 
 

 
         
 
         
 
         
 
         BUCKLES V. J. I. CASE COMPANY
 
         Page   5
 
         
 
         
 
         sustained prior to June 1984 and that, in any event, most of 
 
         those injuries or problems affected areas other than claimant's 
 
         back.
 
         
 
              II.  As claimant has an impairment to the body as a whole, 
 
         an industrial disability has been sustained.  Industrial 
 
         disability was defined in Diederich v. Tri-City Railway Co., 219 
 
         Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows:  "It is 
 
         therefore plain that the legislature intended the term 
 
         'disability' to mean 'industrial disability' or loss of earning 
 
         capacity and not a mere 'functional disability' to be computed in 
 
         the terms of percentages of the total physical and mental ability 
 
         of a normal man."
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.w.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability 
 
         is.proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability. it 
 

 
         
 
         
 
         
 
         BUCKLES V. J. I. CASE COMPANY
 
         Page   6
 
         
 
         
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Christensen v. Hagen, Inc., (Appeal Decision, March 26, 
 
         1985); Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985).
 
         
 
              Claimant is now 34 years of age and his ability to do manual 
 
         labor is now questionable.  Dr. Chesser testified that he "felt 
 
         [claimant) could not return to heavy construction work" and this 
 
         testimony is believed.  Claimant, however, is obviously well 
 
         motivated to obtain an education that will enable him to overcome 
 
         his physical limitations.  It would appear that he will reenter 
 
         the labor force in the fall of 1987 after he completes his 
 
         training at Black Hawk College.  It is probable that he will 
 
         reenter the labor force this fall, not merely possible, and this 
 
         circumstance is of greater consequence in assessing his 
 
         industrial disability as compared to a circumstance in which a 
 
         worker's chance of gaining employment is remote or unlikely.  In 
 
         sum, the probability that claimant will reenter the labor force 
 
         in the fall reduces his industrial disability.
 
         
 
              Taking all appropriate factors into account, it is concluded 
 
         that claimant is entitled to 175 weeks of permanent partial 
 
         disability benefits based on an industrial disability of 35 
 
         percent.  Defendant has paid 101 weeks of disability benefits and 
 
         defendant is entitled to credit toward the healing period or 
 
         permanency benefits owed to claimant.
 

 
         
 
         
 
         
 
         BUCKLES V. J. I. CASE COMPANY
 
         Page   7
 
         
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant is thirty-four (34) years old.
 
         
 
              2.  Claimant is a high school graduate with one year of 
 
         college.
 
         
 
              3.  Claimant started working for J. I. Case on September 11, 
 
         1972; prior to starting work for J. I. Case performed manual 
 
         labor jobs.
 
         
 
              4.  On June 19, 1984, claimant injured his back while 
 
         working for J. I. Case; he was a welder on that date.
 
         
 
              5.  In 1985, claimant had an L5-Sl disc laminectomy 
 
         performed by R W. Milas,.M.D.
 
         
 
              6.  Claimant has sustained permanent partial impairment as a 
 
         result of his back injury of June 19, 1984 and the back surgery 
 
         performed by Dr. Milas.
 
         
 
              7.  Claimant's permanent partial impairment prevents him 
 
         from performing heavy labor now and in the future.
 
         
 
              8.  Claimant is currently pursuing a two year associate 
 
         degree from Black Hawk College in the field of computer-assisted 
 
         design and will probably graduate in the fall of 1987.
 
         
 
              9.  Claimant will probably reenter the labor force in the 
 
         fall of 1987 as he is a well-motivated student and is well 
 
         motivated to return to work.
 
         
 
             10.  Claimant's industrial disability is thirty-five percent 
 
         (35%).
 
         
 
             11.  Claimant's stipulated rate of weekly compensation is 
 
         three hundred seventy and 86/100 dollars ($370.86).
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  Claimant established by a preponderance of the evidence 
 
         that there is a causal connection between his work-related injury 
 
         of June 19, 1984 and the impairment of his back.
 
         
 
              2.  Claimant established entitlement tO one hundred 
 
         seventy-five (175) weeks of permanent partial disability benefits 
 
         commencing on June 11, 1985.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That defendant pay one hundred seventy-five (175) weeks of 
 
         permanent partial disability benefits commencing on June 11, 1985 
 
         at a rate of three hundred seventy and 86/100 dollars ($370.86).
 
         
 
              That defendant pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 

 
         
 
         
 
         
 
         BUCKLES V. J. I. CASE COMPANY
 
         Page   8
 
         
 
         
 
         
 
              That defendant be given credit for benefits already paid to 
 
         claimant.
 
         
 
              That defendant pay the costs of this action pursuant to 
 
         Industrial Services Rule 343-4.33, formerly Industrial 
 
         Commissioner Rule 500-4.33.
 
         
 
              That defendant shall file claim activity reports, pursuant 
 
         to Industrial Services Rule 343-3.1(2), formerly Industrial 
 
         Commissioner Rule 500-3.1(2) as requested by the agency.
 
         
 
              Signed and filed this 25th day of February, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            T. J. McSWEENEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         116 East 6th Street
 
         Davenport, Iowa 52805
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa 52801
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                       1402.40; 1803
 
                                                       Filed 2-25-87
 
                                                       T. J. McSweeney
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DEL P. BUCKLES,
 
         
 
              Claimant,                               File No. 768671
 
         VS.
 
                                                   A R B I T R A T I 0 N
 
         J. I. CASE COMPANY,
 
                                                      D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1402.40; 1803
 
         
 
              Held in arbitration that claimant established the requisite 
 
         causal connection and entitlement to 175 weeks of permanent 
 
         partial disability.
 
         
 
              Claimant injured his back on June 19, 1984 while working for 
 
         J.I. Case.  He then had back surgery in 1985 at the L5-Sl disc.  
 
         Claimant is now in school working on an associate degree in 
 
         computer-assisted design and will probably reenter the labor 
 
         force in the fall of 1987.  Claimant is well motivated to find a 
 
         job once he finishes school.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN C. KIRKLAND,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 768821
 
            OMAR E. WHITLOW EXCAVATING,   :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL INSURANCE CO.:
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendant, Second Injury Fund of Iowa, appeals from a 
 
            second injury fund benefits decision filed on September 26, 
 
            1989.  The record on appeal consists of the transcript of 
 
            the arbitration proceeding and joint exhibits 1 through 12.  
 
            Both parties filed briefs on appeal.  
 
            
 
                                      ISSUE
 
            
 
                 The Second Injury Fund did not set forth a statement of 
 
            issues in its brief.  The issues raised by the Fund are set 
 
            forth below.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The second injury fund benefits decision adequately and 
 
            accurately reflects the pertinent evidence and it will not 
 
            be totally set forth herein.
 
            analysis
 
            
 
                 Claimant was afflicted with infantile polio which 
 
            resulted in a loss of use of his left arm.  On June 7, 1984, 
 
            claimant sustained an injury arising out of and in the 
 
            course of his employment that resulted in an injury to his 
 
            right arm.  Claimant received a rating of permanent partial 
 
            impairment of 100 percent of the left arm and 25 percent of 
 
            the right arm.
 
            
 
                 The Second Injury Fund of Iowa (hereinafter the Fund) 
 
            raises several arguments on appeal concerning its liability 
 
            when a claimant's second injury is a scheduled injury.  The 
 
            Iowa Supreme Court stated in Second Injury Fund v. Neelans, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            436 N.W.2d 355, at 358 (Iowa 1989):
 
            
 
                 If the second scheduled injury, standing alone, 
 
                 does not amount to a disability of the body as a 
 
                 whole, we believe a fair reading of Mich Coal and 
 
                 section 85.64 limits the liability of the employer 
 
                 to payment of the scheduled amount attributed to 
 
                 the last injury.
 
            
 
                 The Fund argues that although Neelans clarified the 
 
            limitation on the liability of the employer, it does not 
 
            necessarily specifically state that the Fund is responsible 
 
            for the difference between the scheduled impairment, and the 
 
            industrial disability caused by the second injury.  The Fund 
 
            argues it is not liable at all when the second injury is a 
 
            scheduled injury, or, that if it is liable, that it is only 
 
            liable for the excess of the total industrial disability 
 
            over the industrial disability of either of the injuries, 
 
            when those injuries are considered in isolation.  
 
            
 
                 According to the Fund's reasoning, the second employer 
 
            would be liable to claimant for the scheduled amount of the 
 
            injury only, as indicated in Neelans.  The Fund would then 
 
            only be liable for the portion of claimant's industrial 
 
            disability caused by the two injuries in conjunction, and 
 
            above and beyond the industrial disability of the second 
 
            injury.  Under this reasoning, part of the claimant's 
 
            disability--that portion of his industrial disability caused 
 
            by his second injury in isolation--would go uncompensated.  
 
            
 
                 The Fund's argument must be rejected.  The Iowa Supreme 
 
            Court has recently held:
 
            
 
                 [T]he clear import of Neelans is that where both 
 
                 injuries are scheduled, that is, neither is itself 
 
                 an injury to the body as a whole, the Fund is 
 
                 liable for the entire amount of the industrial 
 
                 disability minus the two scheduled amounts.  Only 
 
                 where one of the injuries is to the body as a 
 
                 whole must there be an apportionment.  Second 
 
                 Injury Fund v. Braden, ___ N.W.2d ___ (Iowa 1990).
 
            
 
                 The Fund also argues on appeal that second injury cases 
 
            should always be based on functional impairment, rather than 
 
            industrial disability, and cites Iowa Code section 
 
            85.34(2)(s), and Simbro v. DeLong's Sportswear, 332 N.W.2d 
 
            886 (Iowa 1983).  The Simbro case states that injuries under 
 
            section 85.34(2)(s) are to be evaluated under a functional 
 
            impairment analysis.
 
            
 
                 Iowa Code section 85.34(2)(s) states:
 
            
 
                    The loss of both arms, or both hands, or both 
 
                 feet, or both legs, or both eyes, or any two 
 
                 thereof, caused by a single accident, shall equal 
 
                 five hundred weeks and shall be compensated as 
 
                 such, however, if said employee is permanently and 
 
                 totally disabled the employee may be entitled to 
 
                 benefits under subsection 3. (emphasis added)
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Iowa Code section 85.64 states:
 
            
 
                    If an employee who has previously lost, or lost 
 
                 the use of, one hand, one arm, one foot, one leg, 
 
                 or one eye, becomes permanently disabled by a 
 
                 compensable injury which has resulted in the loss 
 
                 of or loss of use of another such member or organ, 
 
                 the employer shall be liable only for the degree 
 
                 of disability which would have resulted from the 
 
                 latter injury if there had been no pre-existing 
 
                 disability. (emphasis added)
 
            
 
                 Section 85.64 refers to two injuries occurring at 
 
            separate times, while section 85.34(2)(s) refers to injuries 
 
            in a single accident.  In addition, the holding in Braden 
 
            clearly contemplates the use of industrial disability in 
 
            second injury cases.
 
            
 
                 The Fund next argues that claimant's infantile polio 
 
            did not keep him from seeking or holding employment, and 
 
            therefore it did not constitute a "handicap" to him.  There 
 
            is no requirement that claimant be totally disabled in order 
 
            to qualify for second injury fund benefits.  "Loss of use" 
 
            in this section does not require total loss of use of the 
 
            member or the body as a whole.  Hoenig v. Mason & Hanger, 
 
            Inc., 162 N.W.2d 188 (Iowa 1968).  Claimant's polio clearly 
 
            resulted in some degree of permanent impairment.  The fact 
 
            that claimant was able to obtain employment in spite of his 
 
            polio does not compel a conclusion that his polio did not 
 
            affect his earning capacity.
 
            
 
                 The Fund further argues that claimant does not have 95 
 
            percent industrial disability as a result of his injuries.  
 
            The sole argument offered by the Fund in this regard goes to 
 
            claimant's motivation.  The Fund takes issue with the 
 
            deputy's determination that claimant did not seek 
 
            re-employment due to the extent of his injuries and 
 
            impairment.  Claimant's lifelong work history, however, does 
 
            show good motivation to work.  Claimant's loss of use of his 
 
            arms severely narrows the number of occupations claimant is 
 
            able to perform.  The vocational expert concluded that 
 
            claimant was 100 percent disabled.  The severity of a 
 
            claimant's impairment is a relevant factor in assessing his 
 
            failure to seek alternative work and his motivation.  
 
            
 
                 In addition, claimant's motivation is, of course, only 
 
            one factor in determining industrial disability.  Claimant 
 
            lacks a high school education.  Claimant has lost much of 
 
            the use of both of his arms.  Claimant was 56 years old at 
 
            the time of his injury.
 
            
 
                 It is concluded that claimant has established an 
 
            overall industrial disability as a result of the combined 
 
            effects of both the flail upper left extremity and the work 
 
            injury of June 7, 1984 of 95 percent or 475 weeks of 
 
            permanent partial disability benefits.
 
            
 
                 It is further concluded that the compensable value of 
 
            the permanent injury to the left upper extremity is 250 
 
            weeks.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 The extent of the liability of the Fund depends to a 
 
            great extent on how much of the disability from the second 
 
            injury is attributable to the second employer.  If the 
 
            second injury is in fact a scheduled injury as the deputy 
 
            held, the Fund's liability will be determined under the 
 
            approach in Braden, above.  However, if the second injury 
 
            extends to the body as a whole, the second employer is 
 
            responsible for the industrial disability represented by 
 
            that injury.  In this case, the deputy concluded that 
 
            claimant's injury was to his arm, and did not extend to the 
 
            body as a whole.  The deputy apparently based this on the 
 
            prior agreement of settlement based on a scheduled injury to 
 
            the right upper extremity, which was approved by the 
 
            industrial commissioner.  The deputy held that an approved 
 
            settlement is equivalent to an award decision and the Fund 
 
            was bound by the determination in the settlement that 
 
            claimant's injury was to the arm and did not extend into the 
 
            body as a whole.
 
            
 
                 However, the Fund was not a party to the settlement.  
 
            Prior memorandums of agreement do not bind the Second Injury 
 
            Fund if the Fund was not a party to them.  Himschoot v. 
 
            Montezuma Manufacturing, appeal decision, April 15, 1988.  
 
            Similarly, the Fund cannot be bound by a prior settlement, 
 
            fixing claimant's injury as a scheduled injury, when the 
 
            Fund was not a party to the settlement and did not agree to 
 
            it.  The question of whether claimant's injury constitutes a 
 
            scheduled injury or an injury to the body as a whole for 
 
            purposes of determining the Fund's liability has not been 
 
            adequately addressed.  A remand to the deputy for a ruling 
 
            on this question is in order.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered: 
 
            
 
                 That this case is remanded to a deputy industrial 
 
            commissioner for a determination of whether claimant's 
 
            injury is a scheduled injury or an injury to the body as a 
 
            whole for the purpose of determining extent of the Second 
 
            Injury Fund's liability and to determine the Second Injury 
 
            Fund's liability.
 
            
 
                 That the defendant, Second Injury Fund, shall pay the 
 
            costs of this proceeding including the cost of transcription 
 
            of the arbitration hearing.
 
            
 
                 Signed and filed this ____ day of September, 1990.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            Mr. J. W. Conway
 
            Mr. Dennis D. Cohen
 
            Attorneys at Law
 
            210 Cedar Street
 
            P.O. Box 237
 
            Muscatine, Iowa 52761
 
            
 
            Mr. Thomas N. Kamp
 
            Attorney at Law
 
            600 Davenport Bank Bldg.
 
            Davenport, Iowa 52801
 
            
 
            Mr. Robert D. Wilson
 
            Assistant Attorney General
 
            Tort Claims
 
            Hoover State Office Building
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          3203;3301;2906
 
                                          Filed September 26, 1990
 
                                          CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOHN C. KIRKLAND,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 768821
 
            OMAR E. WHITLOW EXCAVATING,   :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL INSURANCE CO.:
 
                                          :
 
                 Insurance Carrier,       :
 
                                          :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            3203
 
            On appeal the following second injury fund arguments were 
 
            rejected:
 
            
 
                 That Neelans may limit the liability of the 
 
                 employer to the scheduled amount of the second 
 
                 injury and not the industrial disability, but 
 
                 Neelans does not specifically say the Fund must 
 
                 pay the difference between the scheduled amount 
 
                 and the industrial disability attributable to the 
 
                 second injury.
 
            
 
                 That all second injury cases be evaluated 
 
                 functionally under Simbro (rejected because 
 
                 85.34(2)(5) speaks of a single accident.  While 
 
                 85.64 contemplates a previous loss.  That 
 
                 claimant's infantile polio did not constitute a 
 
                 previous loss of use because claimant was still 
 
                 able to get a job.
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
            3203; 3301; 2906
 
            The arbitration decision held that the Fund could not argue 
 
            that the second injury extended to the body as a whole 
 
            because a prior agreement of settlement determined the 
 
            second injury to be limited to the arm.  However, the Fund 
 
            was not a party to this settlement and cannot be bound by 
 
            it.  Since the question of whether the arm injury is limited 
 
            to the scheduled member or extends to the body as a whole 
 
            will determine the extent of the Fund's liability, a reward 
 
            on this question was necessary.
 
            
 
 
            
 
                   
 
 
 
                           
 
                                            3202
 
                                            Filed September 26, 1989
 
                                            Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN C. KIRKLAND,
 
         
 
              Claimant,                              File No. 768821
 
         
 
         vs.                                           S E C O N D
 
         
 
         OMAR E. WHITLOW EXCAVATING,                   I N J U R Y
 
         
 
              Employer,                                  F U N D
 
         
 
         and                                         B E N E F I T S
 
         
 
         EMPLOYERS MUTUAL INSURANCE CO.,             D E C I S I O N
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         
 
         3202
 
         
 
              Second Injury Fund found liable where claimant established 
 
         loss of use of the upper left extremity as a result of infantile 
 
         paralysis (polio) and a work injury which resulted in an 
 
         agreement for settlement and full commutation showing an 82.5 
 
         percent loss of the upper right extremity.  Claimant found to be 
 
         95 percent industrially disabled and the Second Injury Fund 
 
         ordered to pay 18.75 weeks of permanent partial disability 
 
         benefits.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            JOHN C. KIRKLAND,   :
 
                      :
 
                 Claimant, :
 
                      :        File No. 768821
 
            vs.       :
 
                      :
 
            OMAR E. WHITLOW EXCAVATING,   :          R E M A N D
 
                      :
 
                 Employer, :        D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            EMPLOYERS MUTUAL INSURANCE    :
 
            CO.,      :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            statement of the case
 
            This matter was remanded to the undersigned deputy 
 
            industrial commissioner "for a determination of whether 
 
            claimant's injury is a scheduled injury or an injury to the 
 
            body as a whole for the purposes of determining extent of 
 
            the Second Injury Fund's liability and to determine the 
 
            Second Injury Fund's liability."
 
            issues
 
            Pursuant to the appeal decision filed September 26, 1990, 
 
            the following issues are presented:
 
            1.  Whether claimant's injury of June 7, 1984 is a scheduled 
 
            injury or an injury to the body as a whole; and
 
            2.  The extent of the Second Injury Fund's liability.
 
            findings of fact
 
            Having reviewed the record in this matter, the undersigned 
 
            deputy industrial commissioner finds:
 
            On June 7, 1984, claimant sustained an injury which arose 
 
            out of and in the course of his employment with Omar E. 
 
            Whitlow Excavating when, while climbing on a loader, he fell 
 
            landing on his right arm on the concrete.
 
            William Catalona, M.D., an orthopedic surgeon who treated 
 
            claimant for his injury, reported on August 13, 1985 that:
 
            You will note on his medical record that I did a repair of a 
 
            complete rupture of the rotator cuff of his right shoulder 
 
            for him on 7/17/84.  Although Mr. Kirkland has made a good 
 
            recovery from this procedure, he is severely restricted in 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the use of his right arm, both from the obstetrical 
 
            paralysis and now the severe degenerative changes of the 
 
            rotator cuff of his shoulder.
 
            
 
            (Joint Exhibit 11; Deposition Exhibit 7)
 
            Testifying with regard to the pain he feels, claimant 
 
            stated:
 
            Q.  Mr. Kirkland, I am going to hand you what has been 
 
            marked Defendant's Exhibit 11 which is the deposition of Dr. 
 
            William Catalona and it contains an ordinary deposition and 
 
            it has approximately 75 to 80 pages in it and I would like 
 
            you to stand, please, and hold this deposition in your hand 
 
            and first hold it out, extend it at arm's length.
 
            A.  (Witness complied.)
 
            Q.  Now face the Deputy, please.
 
            A.  (Witness complied.)
 
            Q.  Lift it as high as you can.
 
            A.  That is as high as it will go and I'm not going to hold 
 
            it very long.
 
            Q.  Do you have any pain?
 
            A.  Just get tired.
 
            Q.  You are talking about a knot of pain in the arm.
 
            A.  Right there.  (Indicating)
 
            Q.  I am talking about --
 
            MR. WILSON:  Objection.  Some leading questions here, Your 
 
            Honor.
 
            DEPUTY COMMISSIONER DUBIK:  Sustained.
 
            BY MR. CONWAY:
 
            Q.  Where does the pain radiate from?
 
            A.  From my shoulder -- from my elbow up to my shoulder or 
 
            from my shoulder down to my elbow, whichever way you want to 
 
            --
 
            Q.  I am going to take my left hand and move from your right 
 
            elbow up the upper extremity of your body and you tell me 
 
            where the pain stops.
 
            A.  Right in there.
 
            Q.  Where is your incision?
 
            A.  Up on top, right up in there.
 
               MR. CONWAY:  My right hand is pointing and right finger 
 
            is pointing to his incision, my left hand and left finger is 
 
            pointing to where he has testified that the pain stops and 
 
            can we agree that it is six to eight inches down his arm 
 
            from the incisions?
 
               MR. WILSON:  I will agree that your left hand is six to 
 
            eight inches below your right hand that your right hand is 
 
            at the incision on the left shoulder.  That is what I will 
 
            agree to.
 
               MR. CONWAY:  Right shoulder.
 
               MR. WILSON:  His right shoulder.  You bet.
 
            
 
            (Transcript, pages 66-68)
 
            The residuals of claimant's injury result in an impairment 
 
            to his arm and do not extend to the body as a whole.
 
            Bruce L. Sprague, M.D., opined on April 29, 1985 that 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            claimant had sustained a 19 percent permanent partial 
 
            impairment to the upper extremity as a result of the injury 
 
            of June 7, 1984.  David Naden, M.D., opined claimant's 
 
            impairment to be 36 to 38 percent as a result of the injury 
 
            and surgery.  The parties (claimant and defendant employer) 
 
            stipulated that claimant's impairment amounted to 82.5 
 
            percent of the right arm.
 
            reasoning and conclusions of law
 
            The undersigned concludes that the residuals of claimant's 
 
            impairment rest in the upper extremity and do not extend 
 
            into the body as a whole.  Lauhoff Grain v. McIntosh, 395 
 
            N.W.2d 834 (Iowa 1986).  Therefore, the injury claimant 
 
            sustained on June 7, 1984 was to a scheduled member and not 
 
            to the body as a whole.
 
            The limitations claimant has on the use of his extremity 
 
            clearly justified a finding that he has an 82.5 percent 
 
            permanent partial disability to the extremity.  Therefore, 
 
            the liability of the Second Injury Fund remains as ordered 
 
            in the decision filed September 26, 1988.
 
            order
 
            THEREFORE, it is ordered:
 
            That the Second Injury Fund of Iowa pay to claimant eighteen 
 
            point seven five (18.75) weeks of permanent partial 
 
            disability benefits commencing December 14, 1985 at the 
 
            stipulated rate of two hundred forty-nine and 36/100 dollars 
 
            ($249.36) per week.
 
            Benefits shall be paid in a lump sum as all benefits have 
 
            accrued.
 
            That the Second Injury Fund of Iowa pay costs of this action 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
            
 
                 Signed and filed this _____ day of December, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          DEBORAH A. DUBIK
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr J W Conway
 
            Mr Dennis D Cohen
 
            Attorneys at Law
 
            210 Cedar Street
 
            P O Box 237
 
            Muscatine IA 52761
 
            
 
            Mr Thomas M Kamp
 
            Attorney at Law
 
            600 Davenport Bank Bldg
 
            Davenport IA 52801
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            Mr Robert D Wilson
 
            Assistant Attorney General
 
            Tort Claims
 
            Hoover Building
 
            LOCAL MAIL