Page   1
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
          
 
            ROBERT BERGESON,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                   File No. 781863
 
            CITY PLUMBING & HEATING INC., 
 
                                                     A P P E A L
 
                 Employer, 
 
                                                   D E C I S I O N
 
            and       
 
                      
 
            DODSON INSURANCE GROUP,  
 
                      
 
                 Insurance Carrier,  
 
                      
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ____________________________________________________________
 
           
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed January 8, 1990 is affirmed and is adopted as the 
 
            final agency action in this case.
 
            
 
            The Second Injury Fund shall pay the costs of the appeal, 
 
            including the preparation of the hearing transcript.
 
            
 
            Signed and filed this ____ day of June, 1992.
 
            
 
            
 
                        
 
                                  ________________________________
 
                                         BYRON K. ORTON
 
                                    INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Dennis L. Hanssen
 
            Attorney at Law
 
            2700 Grand Ave., Ste 111
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Michael R. Hoffmann
 
            Attorney at Law
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Breakwater Bldg.
 
            3708 75th St.
 
            Des Moines, Iowa 50322
 
            
 
            Mr. Robert D. Wilson
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                9998
 
                                                Filed June 30, 1992
 
                                                Byron K. Orton
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            ROBERT BERGESON,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 781863
 
            CITY PLUMBING & HEATING INC., 
 
                                                    A P P E A L
 
                 Employer, 
 
                                                  D E C I S I O N
 
            and       
 
                      
 
            DODSON INSURANCE GROUP,  
 
                      
 
                 Insurance Carrier,  
 
                      
 
            and       
 
                      
 
            SECOND INJURY FUND OF IOWA,   
 
                      
 
                 Defendants.    
 
            ____________________________________________________________
 
           
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed January 
 
            8, 1990.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT BERGESON,
 
         
 
              Claimant,
 
                                                       File No. 781863
 
         vs.
 
                                                    A R B I T R A T I O N
 
         CITY PLUMBING & HEATING INC.,
 
                                                       D E C I S I O N
 
              Employer,
 
         
 
         and                                              F I L E D
 
         
 
         DODSON INSURANCE GROUP,                         JAN 08 1990
 
         
 
              Insurance Carrier,               IOWA INDUSTRIAL COMMISSIONER
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                              INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Robert Bergeson, against City Plumbing & Heating, Inc., employer, 
 
         Dodson Insurance Group, insurance carrier, and the Second Injury 
 
         Fund of Iowa, defendants, to recover benefits as a result of an 
 
         injury occurring on November 8, 1984.  This matter came on for 
 
         hearing before the deputy industrial commissioner in Des Moines, 
 
         Iowa on October 24, 1989.  The record consists of the testimony 
 
         of the claimant and claimant's wife, Dee Ann Bergeson; joint 
 
         exhibits 1, 2 and 3; and Second Injury Fund's exhibits 1 through 
 
         4.
 
         
 
                                    ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1.  The extent of claimant's permanent disability;
 
         
 
              2.  Whether claimant is entitled to any benefits from the 
 
         Second Injury Fund, and, if so, the nature and extent of such 
 
         benefits;
 
         
 
              3.  Whether defendant insurance carrier is entitled to 
 
         reimbursement from the Second Injury Fund of any overpayment of 
 
         permanent partial disability benefits to claimant, if any 
 
         overpayment is found.
 
         
 
                                                
 
                                                         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              Claimant testified he is a high school graduate.  He stated 
 
         he has basically been a plumber since his high school graduation 
 
         in 1951.  Claimant stated he started his own business, City 
 
         Plumbing & Heating Company, on April 14, 1965 with his father and 
 
         brother.  He described his job as reading blueprints and working 
 
         eight hours a day doing plumbing work, working by himself, 70 
 
         percent new construction and 30 percent remodeling.  Claimant 
 
         indicated his work involves working at times in a ditch, lifting 
 
         12 to 226 pounds (one-half of a bath tub).
 
         
 
              Claimant testified he injured his left leg on November 8, 
 
         1984 when a ditch caved in causing dirt to cover his body up to 
 
         his chest.  He said his left leg femur bone was shattered and his 
 
         right knee and leg was hyperextended.  He said he was taken to the 
 
         hospital by ambulance.  Claimant had surgery on his left leg the 
 
         next day at Mary Greeley Hospital, at which time they placed 
 
         hardware in his leg.  Claimant said he was discharged on crutches 
 
         for a two month period at home.  Claimant said he returned to work 
 
         part-time on August 24, 1985 as a plumbing inspector for the city 
 
         of Ames.  He said he became full-time in November of 1985. 
 
         Claimant emphasized that he was not able to get into the ditches 
 
         to inspect and received help at the location of the work.  
 
         Claimant indicated he is currently making $22,704 per year based 
 
         on an eight and one-half hour per day.  Claimant said he began 
 
         having problems with the hardware in his left leg beginning in 
 
         January 1986 due to a bolt breaking.  He was off work until 
 
         February 1986, returning part-time at first and full-time again in 
 
         April 1986.  Claimant contends the removal of the hardware at that 
 
         time helped in some respects and hurt in other ways.  Claimant 
 
         indicated his left leg is shorter than his right leg and this 
 
         results in him losing his balance.  He also said he walks with his 
 
         foot rotated out.  He expressed he still feels pain.
 
         
 
              Claimant said he had health problems involving seizures 
 
         since he was 15 years old and they have been controlled by 
 
         medication. He emphasized that the seizures always occurred at 
 
         night while sleeping and never limited his plumbing work.  
 
         Claimant stated he initially received a football injury to his 
 
         right knee.  He gave no date.  Claimant stated he injured,his 
 
         right knee in 1959 which resulted in a torn ligament and loose 
 
         cartilage in the knee. Claimant revealed he had surgery to repair 
 
         the knee.  Claimant emphasized he has played football, baseball 
 
         and volleyball since the 1959 injury and has had no flare-up or 
 
         restrictions with his right knee up to his November 8, 1984 
 
         injury.
 
         
 
              Claimant contends he had no other health problems prior to 
 
         November 8, 1984.  On cross-examination, claimant acknowledged he 
 
         fell after a seizure on April 15, 1981 and incurred a T-5 
 
         compressed fracture.  Claimant also did not acknowledge he injured 
 
         his right leg on December 16, 1976 when he jumped into a ditch, 
 
         but said he isn't disputing the medical records.  Claimant 
 
         admitted he suffered a contusion to the knee on March 14, 1977.  
 
                                                
 
                                                         
 
         He further acknowledged, on cross-examination, his involvement in 
 
         a motor vehicle accident on January 4, 1980 and complained of 
 
         right knee aches.  Claimant contends he could not work as a union 
 
         plumber today.  He said he would have trouble going up and down 
 
         stairs carrying certain equipment and materials.  He acknowledged 
 
         he has climbed a ladder one foot at a time since his 1984 injury.
 
         
 
              Dee Ann Bergeson, claimant's wife, testified claimant was 
 
         not one to complain as to his physical problems.  She indicated 
 
         his good humor changed after his November 1984 injury.  She 
 
         stated claimant no longer hunts.  She said he does climb the 
 
         ladder, but it bothers him.  She revealed he fell once in the 
 
         garage but did not tell her.
 
         
 
              John A. Grant, M.D., an orthopedic surgeon, testified 
 
         through deposition on January 27, 1989 that he could not 
 
         specifically attribute any back problems to claimant's November 
 
         8, 1984 injury. He also indicated he gave no rating to the right 
 
         knee as to any November 8, 1984 injury as he was not aware of any 
 
         significant injury to that knee.  He said he gave the knee "a 10 
 
         percent partial permanent physical impairment prior to the 
 
         November 8, 1984 accident."
 
         
 
              Dr. Grant was questioned on the apparent disagreement with 
 
         his 36 percent permanent partial impairment rating of claimant's 
 
         left leg and Dr. Neff's 23 percent rating.  He testified that the 
 
         majority of the differences was based on the potential of future 
 
         post-traumatic arthritis, which prediction added 10 percent to 
 
         his figure resulting in the 36 percent total impairment.  Dr. 
 
         Grant testified that under the AMA Guides, a meniscectomy results 
 
         in a 10 percent impairment of the lower extremity.  Dr. Grant's 
 
         medical records reflect claimant received a severely comminuted 
 
         fracture between the middle and distal third of the left femur on 
 
         November 8, 1984 and underwent removal of the orthopedic hardware 
 
         on January 13, 1986.  Claimant's medical records show that 
 
         claimant had an open reduction internal fixation left femur 
 
         surgery on November 9, 1984.  On June 11, 1986, Dr. Grant wrote:
 
         
 
                   I recently saw your client, Robert Bergeson, on 6/2/86 
 
              and have arrived at a percent of partial permanent whole 
 
              body physical impairment.  This is based on several factors 
 
              including the fact that his left knee flexes only to about 
 
              112 degrees and that he has some post traumatic varus which 
 
              actually is about 10 degrees.  He has three-eighths of an 
 
              inch shortening on the involved side and there is limitation 
 
              in external rotation of the leg only to about 10 degrees.  I 
 
              also feel he has some chance for post traumatic arthritis. 
 
              Putting these things together, I have arrived at a percent 
 
              of partial permanent physical impairment of 36% of the 
 
              involved extremity which converts to 14 percent of the whole 
 
              person. Hopefully this is the information you seek.
 
         
 
         (Joint Exhibit 1, Part 1, Page 7)
 
         
 
              On August 11, 1988, Dr. Grant wrote:
 
                                                
 
                                                         
 
         
 
              I have reviewed Mr. Bergeson's Clinic records and there is 
 
              evidence that he sustained a strain of his right knee in 
 
              1977 at which time I saw him and felt he had degenerative 
 
              changes present at that time.  We know he underwent an 
 
              arthrotomy and lateral meniscectomy on the right knee in 
 
              1959.  Based on my experience with the situation of a knee 
 
              post meniscectomy, I would estimate that he had present a 10 
 
              percent partial permanent physical impairment of the right 
 
              knee prior to the injury of November 8, 1984.
 
         
 
         (Jt. Ex. 1, Pt. 1, p. 1)
 
         
 
              On November 6, 1986, Scott B. Neff, D.O., and Thomas Bower, 
 
         L.P.T., issued a 23 percent impairment rating to claimant's left 
 
         lower extremity and 12 percent to claimant's right lower 
 
         extremity.  At that time, the doctor did not have information as 
 
         to claimant's prior injury to his right leg and thought the right 
 
         leg problem as well as the left leg problem was the result of the 
 
         same injury on November 8, 1984.  On June 1, 1987, Dr. Neff 
 
         wrote:
 
         
 
                   Doctor Grant examined him repetitively in the past 
 
              apparently, and is in a much better circumstance or 
 
              situation to render an appropriate rating than I am.  I can 
 
     
 
                            
 
                                                         
 
              rate this gentleman on what I see and what I find on the day 
 
              that I see him and would adhere to my original opinion as it 
 
              was expressed based on his physical findings on the day that 
 
              I examined him, and that the history that was given and 
 
              provided.
 
         
 
         (Jt. Ex. 1, Pt. 2, p. 18)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in. 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              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, 887 (Iowa 1983).
 
         
 
              Before the second injury fund is triggered three 
 
         requirements must be met.  First, the employee must have lost or 
 
         lost the use of a hand, foot, leg or eye.  Second, the employee 
 
         must sustain another loss or loss of use of another member or 
 
         organ through a compensable injury.  Third, permanent disability 
 
         must exist as to both the initial injury and second injury.  See 
 
         Allen v. The Second Injury Fund, State of Iowa, Thirty-Fourth 
 
         Biennial Report, Iowa Industrial Commissioner 15 (1980); Ross v. 
 
         Service Master-Story Co., Inc., Thirty-Fourth Biennial Rep., Iowa 
 
         Indus. Comm'r 273 (1979).
 
         
 
              The fund is responsible for the difference between total 
 
         disability and disability for which the employer at the time of 
 
         the second injury is responsible.  Section 85.64.  Second Injury 
 
         Fund v. Mich. Coal Company, 274 N.W.2d 300 (Iowa 1970), Second 
 
         Injury Fund v. John Deere Component Works,.Iowa Supreme Court 
 
         Case No. 88-399, filed February 22, 1989.
 
         
 
              Claimant is 56 years old.  He has been a plumber basically 
 
                                                
 
                                                         
 
         during his entire adult life.  His father was a plumber and 
 
         claimant worked for his father for several years and then 
 
         claimant, his father and brother went into business together.  
 
         The three eventually incorporated and operated as City Plumbing & 
 
         Heating Company, defendant employer.  This employer went out of 
 
         business in July 1985.
 
         
 
              Claimant incurred a right knee injury playing football. 
 
         Although the year was not mentioned, it appears to have occurred 
 
         in high school.  In 1959, claimant injured his knee again which 
 
         resulted in surgery to repair a torn ligament and removal of a 
 
         cartilage.  This operation was called a meniscectomy.  The greater 
 
         weight of the evidence shows this injury resulted in a 10 percent 
 
         impairment, respectively, to claimant's right lower extremity.  
 
         The Second Injury Fund of Iowa contends that claimant was having 
 
         no problem with his right knee or leg up to his November 8, 1984 
 
         injury.  Claimant, himself, indicated he was not having any 
 
         problems with his right knee.  It is obvious claimant learned to 
 
         live with his right knee condition.  The fact is claimant had 
 
         removal of a cartilage.  As Dr. Grant testified, a meniscectomy 
 
         itself results in a permanent impairment under the AMA Guides.
 
         
 
              Claimant continued to work and emphasized that he continued 
 
         to participate in athletic activities like football, baseball and 
 
         volleyball after his 1959 injury.  Claimant indicated he 
 
         basically did everything after the 1959 injury that he did and 
 
         could do before his 1959 injury.  Claimant testified he 
 
         completely recovered from this 1959 injury.  Claimant related he 
 
         had some pain in his right knee on occasion but it never 
 
         restricted his activities.  In answer to interrogatory number 5, 
 
         exhibit 2, part 5, page 9, he said he fully recovered from this 
 
         1959 injury.  The greater weight of medical evidence shows that 
 
         on November 8, 1984 claimant was not being bothered by his right 
 
         leg injury. Notwithstanding the fact claimant wasn't bothered to 
 
         any great extent, the medical evidence is clear that the fact one 
 
         has a meniscectomy results in a 10 percent permanent impairment.  
 
         Once a meniscus is removed, it does not grow back.  It is an 
 
         important part of the knee.  There is no substantial evidence to 
 
         show that the November 8, 1984 accident caused any additional 
 
         permanent impairment to claimant's right knee.  It appears there 
 
         may have been some temporary aggravation caused by the November 
 
         8, 1984 accident.  Dr. Grant and Dr. Neff opined a 10 percent and 
 
         12 percent permanent partial impairment to the claimant's right 
 
         lower extremity.  The undersigned finds that Dr. Grant has been 
 
         treating claimant for a longer period of time and, in fact, Dr. 
 
         Neff deferred to Dr. Grant as to ratings of the lower extremities 
 
         because of Dr. Grant's longer treatment of claimant.  The 
 
         undersigned finds that claimant has a 10 percent permanent 
 
         partial physical impairment to his right lower extremity which 
 
         was solely caused by claimant's meniscectomy resulting from 
 
         claimant's 1959 injury, also known herein as claimant's first 
 
         injury.
 
         
 
              Claimant incurred a second injury on November 8, 1984 as a 
 
         result of being trapped in a ditch cave in.  Claimant received a 
 
                                                
 
                                                         
 
         severe comminuted fracture of the left femur which arose out of 
 
         and in the course of claimant's employment.
 
         
 
              Dr. Grant, who has been claimant's treating physician as to 
 
         his fractured femur, opined a 36 percent permanent partial 
 
         impairment to claimant's left lower extremity after taking into 
 
         considerations several factors including loss of motion, external 
 
         rotation and future post-traumatic arthritis.  In his deposition, 
 
         Dr. Grant said 10 percent of this rating was to be attributed to 
 
         the speculation that claimant may incur post-arthritis as a 
 
         result of this November 8, 1984 injury.  This leaves a 26 percent 
 
         permanent partial impairment to claimant's left lower extremity 
 
         as a result of claimant's November 8, 1984 injury.
 
         
 
              Dr. Neff opined a 23 percent permanent partial physical 
 
         impairment to claimant's left lower extremity.  He also said that 
 
         Dr. Grant was in a better position under all circumstances to 
 
         render an opinion rating.  The undersigned cannot speculate 
 
         whether claimant will have arthritis in the future, particularly 
 
         as to whether it will be the result of claimant's November 8, 
 
         1984 injury.  This deputy must consider the current situation.  
 
         The undersigned finds claimant has a 26 percent permanent partial 
 
         physical impairment to his left lower extremity which results in 
 
         claimant being entitled to 57.26 weeks of benefits from the 
 
         defendant employer.  The defendants paid claimant 70 weeks of 
 
         permanent partial disability benefits based on a 31.8 percent 
 
         loss of use of claimant's left lower extremity.
 
         
 
              The next issue is the extent of the Second Injury Fund of 
 
         Iowa's liability to claimant, if any.  We have the first injury 
 
         and a finding of 10 percent permanent partial impairment to 
 
         claimant's right lower extremity due to a 1959 accident.  We have 
 
         a second injury resulting in a 26 percent permanent partial 
 
         physical impairment to claimant's left lower extremity.  Claimant 
 
         has a bowed left leg which is shorter than his right leg.  
 
         Claimant has a rotated left foot as a result of the November 8, 
 
         1984 injury.
 
         
 
              Claimant is employed full-time as a plumbing inspector for 
 
         the City of Ames.  Claimant is able to use his long experience as 
 
         a plumber, but it is obvious he cannot perform the duties 
 
         required of a plumber.  He cannot climb in and out of ditches as 
 
         a part of his inspection duties.  He is very fortunate to have an 
 
         employer who recognizes claimant's limitations and has provided 
 
         help and assistance when necessary to enable claimant to properly 
 
         inspect ditches and places not accessible to claimant due to his 
 
         November 8, 1984 injury.  Any cost to the City of Ames for 
 
         additional assistance to the claimant has not resulted in any 
 
         reduction of income to the claimant.   Claimant made $24,878 in 
 
         1988 per his income tax return.  Claimant's income with defendant 
 
         employer was $23,989 in 1984.  Claimant increased his weekly wage 
 
         in August 1984 from $420 per week to $605.  Defendant employer 
 
         ceased doing business in July 1985.  Claimant was a one-third 
 
         co-owner of defendant employer and also secretary.  Defendant 
 
         employer was not doing well during 1980 to 1984.  It is 
 
                                                
 
                                                         
 
         surprising claimant increased his income as it is apparent the 
 
         company was struggling and its continued existence questionable 
 
         in 1984.  Looking at the claimant's share of losses shown on some 
 
         of his tax returns it is evident there may also have been some 
 
         tax planning involved.  The undersigned finds claimant's income 
 
         is proportionally the same or more than his income and benefits 
 
         from the defendant employer.  His present job has more stability 
 
         and security, less duties and less hours, and his hours are 
 
         regular.  The fact remains claimant has an impairment to both 
 
         lower extremities.  The combined effect of these two impairments 
 
         has resulted in a body as a whole impairment to claimant.  To 
 
         help determine claimant's industrial disability, let's look to 
 
         what this agency has done in some other Second Injury Fund cases:  
 
         When the Neelans case came before Iowa Industrial Commissioner 
 
         David E. Linquist, he found that claimant had sustained a 10 
 
         percent permanent impairment of the hand and a 20 percent 
 
         permanent impairment of the leg and awarded claimant an 
 
         industrial disability of 65 percent of the body as a whole. 
 
         Neelans, file no. 756250 (app. dec. June 30, 1987).  When the 
 
         Albright case came before Industrial Commissioner Robert C. 
 
         Landess, he found that claimant had sustained a 10 percent 
 
         permanent impairment of each knee and awarded claimant an 
 
         industrial disability from the combined effects of both injuries 
 
         of 30 percent of the body as a whole.  Albright, file nos. 
 
         696983/682771 (appeal decision April 27, 1987).  When the Fulton 
 
         case was decided by Industrial Robert C. Landess, he found that 
 
         claimant had a 7 percent permanent impairment of the left leg and 
 
         an 8 percent permanent impairment of the right leg and that the 
 
         combined effects of both injuries resulted in an industrial 
 
         disability of 25 percent of the body as a whole.  Fulton, file 
 
         no. 755039 (appeal decision July 28, 1986).  The principles of 
 
         law and methods used by the industrial commissioner in Neelans, 
 
         Albright and Fulton were upheld by the supreme court in Second 
 
 
 
                            
 
                                                         
 
         Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989).
 
         
 
              In this present case, claimant has a 10 percent permanent 
 
         impairment to his right lower extremity and 26 percent permanent 
 
         impairment to his left lower extremity.  Based on all those 
 
         foregoing considerations and of the facts considered in making 
 
         the determination of industrial disability, it is determined that 
 
         claimant is entitled to a 40 percent industrial disability from 
 
         the combined effects of both the first and second injuries.
 
         
 
              The formula to determine the liability of the second injury 
 
         fund is as follows:  (1) determine the amount of industrial 
 
         disability resulting from the combined effects of both the first 
 
         and second scheduled member injuries, (2) subtract the impairment 
 
         value of the first injury, (3) subtract the impairment value of 
 
         the second injury, (4) the resulting figure is the liability of 
 
         the Second Injury Fund of Iowa (Neelans, Fulton and Albright as 
 
         decided by the supreme court on February 22, 1989).
 
         
 
              Applying that formula to this case:  (1) the industrial 
 
         disability from the combined effect of both the first and second 
 
         injury is 200 weeks (500 x .40), (2) minus the impairment value 
 
         of the first injury to the right knee, which is 22 weeks (220 x 
 
         .10), (3) minus the impairment value of the second injury to the 
 
         left knee, which is 57.2 weeks (220 x .26), (4) which leaves 
 
         120.8 weeks as the liability of the Second Injury Fund of Iowa.
 
         
 
              The parties agreed as to the healing period and stipulated 
 
         that all such benefits have been paid in full.  The parties also 
 
         stipulated that any Second Injury Fund benefits would begin on 
 
         August 5, 1986, if liability is found.
 
         
 
              The remaining issue to be resolved in light of the above 
 
         provisions of this decision is whether defendant insurance 
 
         company is entitled to be reimbursed by the Second Injury Fund 
 
         for the defendant insurance company's overpayment of benefits, 
 
         namely, the difference between 70 weeks of permanent partial 
 
         disability benefits paid and the 57.2 weeks of benefits actually 
 
         found to be the obligation of the defendant employer.  Usually, 
 
         if the defendants overpay the claimant, the defendants are not 
 
         entitled to reimbursement of the overpayment to the claimant.  
 
         This present situation is different in that we have a fourth 
 
         party, the Second Injury Fund, involved.  The undersigned finds 
 
         that the Second Injury Fund shall reimburse the defendant 
 
         insurance company the 12.8 weeks overpayment.  The Second Injury 
 
         Fund shall be entitled to credit for the amount of the 
 
         overpayment it returns to defendant insurance company.
 
         
 
                            FINDINGS OF FACT
 
         
 
              1.  Claimant received a work-related injury on November 8, 
 
         1984 which resulted in a 26 percent permanent partial physical 
 
         impairment of claimant's left lower extremity.
 
         
 
              2.  Claimant incurred an injury in 1959 which resulted in a 
 
                                                
 
                                                         
 
         10 percent permanent partial physical impairment of the 
 
         claimant's right lower extremity.
 
         
 
              3.  Claimant has sustained a permanent impairment to his 
 
         body as a whole as a result of the combined effects of both of 
 
         claimant's injuries.
 
         
 
              4.  Claimant has a reduction in earning capacity.
 
         
 
              5.  Defendant insurance company is entitled to reimbursement 
 
         from the Second Injury Fund of the 12.8 weeks of benefits at the 
 
         rate of $353.44 per week which it overpaid to claimant.
 
         
 
                          CONCLUSIONS OF LAW
 
         
 
              Claimant's injury arose out of and in the course of his 
 
         employment on November 8, 1984.
 
         
 
              Claimant's 26 percent impairment to his left lower extremity 
 
         is causally connected to his work-related injury on November 8, 
 
         1984.
 
         
 
              Claimant sustained a first injury in 1959 which resulted in 
 
         a 10 percent permanent partial impairment to his right lower 
 
         extremity.
 
         
 
              Claimant has a 40 percent industrial disability as a result 
 
         of the combined effects of both the first and second injuries.
 
         
 
              Defendant insurance company is entitled to reimbursement 
 
         from the Second Injury Fund of the 12.8 weeks of benefits at the 
 
         rate of $353.44 per week which it overpaid to claimant.
 
         
 
                                  ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant employer is responsible to claimant for the 
 
         fifty-seven point two (57.2) weeks of permanent partial 
 
         disability benefits at the rate of three hundred fifty-three and 
 
         44/100 dollars ($353.44).
 
         
 
              That defendant insurance carrier has paid seventy (70) weeks 
 
         of permanent partial disability benefits at the rate of three 
 
         hundred fifty-three and 44/100 dollars ($353.44) resulting in an 
 
         overpayment of twelve point eight (12.8) weeks, or four thousand, 
 
         five hundred twenty-four and 03/100 dollars ($4,524.03).  The 
 
         Second Injury Fund shall reimburse this $4,524.03 to defendant 
 
         insurance company and be given credit for this amount against the 
 
         amount it owes claimant.
 
         
 
              That the Second Injury Fund of Iowa shall pay to claimant 
 
         one hundred twenty point eight (120.8) weeks of permanent partial 
 
         disability benefits at the rate of three hundred fifty-three and 
 
         44/100 dollars ($353.44) commencing August 25, 1986.
 
                                                
 
                                                         
 
         
 
              That the Second Injury Fund of Iowa shall pay accrued weekly 
 
         benefits in a lump sum.  Interest will not accrue pursuant to 
 
         Iowa Code section 85.30.
 
         
 
              That the Second Injury Fund of Iowa shall pay the costs of 
 
         this action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              That the Second Injury Fund of Iowa shall file an activity 
 
         report upon payment of this reward as requested by this agency 
 
         pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 8th day of January, 1990.
 
         
 
                                  
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr Dennis Hanssen
 
         Attorney at Law
 
         Terrace Ctr Ste 111
 
         2700 Grand Ave
 
         Des Moines IA  50312
 
         
 
         Mr Michael R Hoffmann
 
         Attorney at Law
 
         500 Liberty Bldg
 
         Des Moines IA  50309
 
         
 
         Mr Robert D Wilson
 
         Assistant Attorney General
 
         Tort Claims
 
         Hoover Bldg
 
         Des Moines IA  50319
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1803; 3200
 
                                                  Filed January 8, 1990
 
                                                  Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ROBERT BERGESON,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                       File No. 781863
 
         CITY PLUMBING & HEATING INC.,
 
                                                    A R B I T R A T I O N
 
              Employer,
 
                                                       D E C I S I O N
 
         and
 
         
 
         DODSON INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         1803
 
         
 
              Claimant's second injury to his left lower extremity found 
 
         to have resulted in a 26% permanent partial impairment to his 
 
         left lower extremity resulting in 57.2 weeks of permanent partial 
 
         disability benefits.  Defendant insurance carrier had paid 70 
 
         weeks.
 
         
 
         3200; 1803
 
         
 
              Second Injury Fund found to be liable for 120.8 weeks of 
 
         permanent partial disability benefits based on a 40% industrial 
 
         disability resulting from the combined effects of a 10% permanent 
 
         partial impairment to claimant's right lower extremity from a 
 
         first injury and a 26% permanent partial impairment to claimant's 
 
         left lower extremity from the second injury.
 
         
 
         3200
 
         
 
              Found Second Injury Fund shall reimburse defendant insurance 
 
         carrier for overpayment to claimant of 12.8 weeks permanent 
 
         partial disability or $4,524.03.  Second Injury Fund to receive 
 
         credit for this amount of reimbursement against amount it owes 
 
         claimant.
 
         
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PATRICIA A. BRIDGES,
 
         
 
              Claimant,
 
                                                     File No. 781971
 
         VS.
 
         
 
         UNITED PARCEL SERVICE,                  A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Patricia A. 
 
         Bridges, claimant, against United Parcel Service (UPS), employer, 
 
         and Liberty Mutual Insurance Company, insurance carrier, for 
 
         benefits as a result of an alleged injury on May 15, 1984.  A 
 
         hearing was held in Des Moines, Iowa, on March 11, 1987 and the 
 
         case was submitted on that date.
 
         
 
              The record consists of the testimony of claimant, Darrel 
 
         Bridges, Barbara Smith, and Nita Bradley; claimant's exhibits 1 
 
         through 4; and defendants' exhibits A through D.  Neither party 
 
         filed a brief.
 
         
 
              The parties stipulated that claimant's weekly rate of 
 
         compensation is $99.26 and that the statute of limitations issue 
 
         was being withdrawn by defendants.
 
         
 
                                      ISSUES
 
         
 
              The contested issues are:
 
         
 
              1)   Whether claimant gave proper notice to defendants, or 
 
         defendants had actual knowledge of claimant's alleged injury, as 
 
         required by Iowa Code section 85.23;
 
         
 
              2)   Whether claimant received an injury which arose out of 
 
         and in the course of her employment with UPS;
 
              3)   Whether there is a causal relationship between the 
 
         alleged injury of May 15, 1984 and claimant's asserted 
 
         disability; and
 
         
 
              4)   Nature and extent of disability; the parties were 
 
         unable to stipulate as to when permanency benefits would commence 
 
         if awarded.
 

 
         
 
         
 
         
 
         BRIDGES V. UNITED PARCEL SERVICE
 
         Page   2
 
         
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that she finished high school in 1968 and 
 
         then started work.  Part of her employment history is set out in 
 
         exhibit A, page 4 (interrogatory No. 6).  At hearing, claimant 
 
         testified regarding how long she worked for these various 
 
         employers and her rate of pay.  She also outlined her duties with 
 
         the various employers she worked for after graduating from high 
 
         school.  Claimant has taken a night course in bookkeeping.
 
         
 
              Claimant testified that she worked as the "main secretary/ 
 
         receptionist" for Teleconnect in Cedar Rapids, Iowa, from July 
 
         1982 through February 1983.  She was paid $5.00 initially by 
 
         Teleconnect.  Claimant attended the American Institute of 
 
         Business in Des Moines from March 1983 through May 1984 taking 
 
         court reporter classes.  She did not complete this curriculum.  
 
         Claimant started working on a part-time basis for UPS on April 
 
         23, 1984 and worked about 15 to 20 hours per week.  Her job at 
 
         UPS was loading boxes off a conveyor belt into a truck.
 
         
 
              Claimant testified that she had some back problems prior to 
 
         May 15, 1984.  Specifically, claimant had "an incident" at 
 
         Teleconnect in the fall of 1982.  At the time of this incident, 
 
         claimant was putting postage on mail and bent over to get an 
 
         envelope and then experienced pain in her back.  She received 
 
         medical attention as a result of this incident, but took no time 
 
         off work other than the time required to visit doctors on two 
 
         occasions.  Exhibit 1, pages 1 and 2, document that claimant saw 
 
         a chiropractor in Altoona, Iowa, in April of 1984 and that she 
 
         told this chiropractor she had back problems because of the 
 
         Teleconnect incident; specifically, claimant related to this 
 
         chiropractor that she had pain in her legs and back.  Claimant 
 
         identified this chiropractor as Donald MacKenzie and that she 
 
         found his name in the Yellow Pages.  Claimant stated that on 
 
         April 23, 1984, she had a problem with her lower back and a 
 
         problem "down both legs.O  Her legs bothered her the most but she 
 
         also had back problems.  She stated that activity would make her 
 
         problems worse.  At this point, the pain was below the beltline.  
 
         Claimant testified that she also went to this chiropractor after 
 
         an incident at UPS on May 15, 1984.
 
         
 
              Claimant testified that her job at UPS required her to take 
 
         boxes off the conveyor belt and mark them and then put them in a 
 
         trailer (truck) for shipment.  Claimant testified that incorrect 
 
         zip codes would result in her being required to lift items.  
 
         Claimant testified that her UPS job required lifting, loading, 
 
         and climbing.  Claimant was required to lift doors on the 
 
         trailers she was loading and also to shut these doors.  She 
 
         characterized the doors on these trailers as "huge.O
 
         
 
              Claimant testified that at the end of her work shift on May 
 
         15, 1984, she had to close the door on a semi-trailer.  Her usual 
 
         procedure was to pull the door with her arm and then close it 
 
         completely with her foot.  On May 15, 1984, she said the latch 
 
         was different than usual.  Claimant was using her right foot and 
 
         her right foot "went between the truck and the dock and she fell 
 
         on her tailbone.O  Severe pain resulted.  However, claimant 
 
         finished locking the door and then completed her day of work.  
 

 
         
 
         
 
         
 
         BRIDGES V. UNITED PARCEL SERVICE
 
         Page   3
 
         
 
         
 
         She characterized the pain from this incident as "more severe 
 
         than before."  The pain experienced by claimant prior to May 15, 
 
         1984 was in her lower back.  Claimant went home on May 15, 1984 
 
         at about 4:00 p.m., and when she got home she told her husband 
 
         about the incident at work that day.  Claimant testified that on 
 
         May 16, 1984, she told Barb Smith, her immediate supervisor, 
 
         about the incident at work.  Barb Smith told claimant to take it 
 
         easy when claimant told her about the incident of May 15, 1984.  
 
         She also sought chiropractic treatment on May 16, 1984 and 
 
         characterized this as "normal manipulation."  Claimant's duties 
 
         were "the same" on May 16, 1984, however.  Claimant worked for 
 
         UPS on a part-time basis until the end of May 1984.  On May 28, 
 
         1984, claimant started work for the U.S. District Court as a 
 
         deputy clerk setting up new files.  Claimant is currently working 
 
         as a deputy clerk for the U.S. District Court and is paid about 
 
         $17,000 per year as a full-time employee.  Initially, claimant 
 
         was paid $5.00 per hour as an employee of the U.S. District Court 
 
         which was $3.00 less than she was paid at UPS.
 
         
 
              Claimant testified that she saw William Boulden, M.D., on 
 
         August 30, 1984.  See exhibit 1, page 7.  In August 1984, Dr. 
 
         Boulden performed a CT scan.  On September 6, 1984, Dr. Boulden 
 
         did a further examination and claimant was informed that she has 
 
         a herniated disc.  Claimant was told about the option of surgery 
 
         and was given the pros and cons of this option.  One and one-half 
 
         years after September 6, 1984, claimant returned to Dr. Boulden 
 
         and informed him that she did not want back surgery.  Claimant 
 
         has also been evaluated by Dr. Marvin Dubanksy.  See exhibit 1, 
 
         page 10.  Dr. Dubansky is opposed to back surgery.  Claimant also 
 
         has seen Thomas A. Carlstrom, M.D., and he is opposed to surgery 
 
         also.  See exhibit 1, page 12.
 
         
 
              The discussion with Barbara Smith on May 16, 1984 lasted 
 
         about two to three minutes and it was the first thing that 
 
         claimant did when she came to work on May 16, 1984.
 
         
 
              On cross-examination, claimant acknowledged that she told 
 
         chiropractor MacKenzie on April 23, 1984 that she had pain in her 
 
         left leg and back.  See exhibit 1, page 1.  He also acknowledged 
 
         that she told chiropractor MacKenzie that her back problems were 
 
         present for eleven to twelve years prior to April 23, 1984.  See 
 
         exhibit 1, page 2.  Claimant testified that she is not sure 
 
         whether she told Dr. Carlstrom that she was having back problems 
 
         for eleven or twelve years prior to seeing him.
 
         
 
              Claimant testified that she saw a Dr. Huey in Cedar Rapids 
 
         as a result of the incident at Teleconnect in the fall of 1982.
 
         
 
              Claimant testified that her alleged work-related injury of 
 
         May 15, 1984 is described on page 7 of exhibit A (interrogatory 
 
         12) that reads:  "While closing overhead trailer door, my foot 
 
         slipped off the ladder and I fell--landing on my tailbone.  The 
 
         latch on this particular door was different than the ones I had 
 
         worked with before.O  Claimant testified that at the time of the 
 
         May 15, 1984 incident she was working part time at UPS and was a 
 
         full-time student at AIB.  Claimant acknowledged that she did not 
 
         ask UPS or Liberty Mutual to provide medical care as a result of 
 
         her alleged injury of May 15, 1984.  She testified that she saw 
 
         Dr. Carlstrom in about October 1986.  Dr. Carlstrom's letter, 
 

 
         
 
         
 
         
 
         BRIDGES V. UNITED PARCEL SERVICE
 
         Page   4
 
         
 
         
 
         marked as exhibit 1, page 12, is dated January 19, 1987.  
 
         Claimant's medical bills as a result of the May 15, 1984 incident 
 
         were turned into her husband's carrier and claimant testified 
 
         that she did not ask UPS or Liberty Mutual at any point to pay 
 
         any of her medical bills that related to the incident of May 15, 
 
         1984.  Claimant testified that the "employee accident report" 
 
         marked as exhibit C was filled out at the top by her and that her 
 
         signature appears at the bottom.  However, the writing in the 
 
         middle was by someone other than herself (it is clear from 
 
         examination of the exhibit as to the different styles of 
 
         handwriting set out on the exhibit).
 
         
 
              On redirect, claimant testified that the Sue Brown described 
 
         in exhibit 1, pages 8 and 9, was a claims adjustor for Iowa 
 
         National Mutual Insurance Company.  Claimant talked with Ms. 
 
         Brown because claimant sought workers' compensation benefits from 
 
         Iowa National Mutual Insurance Company as a result of the 
 
         incident at Teleconnect.  Claimant testified that she received no 
 
         weekly benefits as a result of the Teleconnect incident.
 
         
 
              Barbara Smith testified that she is employed as a part-time 
 
         supervisor by UPS.  In May 1984, claimant was a new employee and 
 
         worked as a loader on a part-time basis generally three or four 
 
         hours per day.  Ms. Smith testified that on May 16, 1984 she did 
 
         not have a conversation with claimant about a work-related injury 
 
         on May 15, 1984.  On May 15, 1984, Ms. Smith evaluated claimant's 
 
         work for UPS.  Ms. Smith testified that she recalled no 
 
         conversations at any point in time with claimant regarding an 
 
         alleged work-related injury at UPS.  Ms. Smith testified that she 
 
         learned of the alleged work-related injury of May  15, 1984 about 
 
         one year prior to the March 11, 1987 hearing.  Ms. Smith 
 
         initially testified that claimant worked the evening of May 15, 
 
         1984; however, she later acknowledged in her testimony that she 
 
         may have made a mistake about the time claimant worked on May 15, 
 
         1984.  The evaluation that Smith did of claimant lasted "at the 
 
         most" ten minutes and it was right before claimant left work on 
 
         May 15, 1984.
 
         
 
              Nita Bradley testified that she is an office supervisor in 
 
         the personnel department at UPS.  She testified that claimant was 
 
         hired as a part-time employee with her hours set from 11:00 a.m. 
 
         to 3:00 p.m. At the time of hiring, claimant was informed of UPS' 
 
         policy that work-related injuries were to be reported to a 
 
         worker's immediate supervisor so that an accident report could be 
 
         completed.  Bradley testified that Barbara Smith would have been 
 
         the correct person for claimant to report to in the event of a 
 
         work-related injury, and that such a reporting by claimant to 
 
         Smith would have been in accordance with UPS policy.  Bradley did 
 
         the exit interview when claimant separated from UPS.  See exhibit 
 
         D.
 
         
 
              Jill Leonard completed the first report of injury and at the 
 
         time she worked as a safety clerk in the safety department.  See 
 
         exhibit 4.
 
         
 
              Bradley testified that claimant never reported her alleged 
 
         work-related injury of May 15, 1984 to UPS.  Bradley testified 
 
         that instructions on reporting injuries are given verbally at a 
 
         worker's original orientation.  Barbara Smith would have given 
 

 
         
 
         
 
         
 
         BRIDGES V. UNITED PARCEL SERVICE
 
         Page   5
 
         
 
         
 
         claimant these instructions.  Barbara Smith was under an 
 
         obligation to report work-related injuries in May 1984, but did 
 
         not do so regarding an alleged injury on May 15, 1984 regarding 
 
         claimant.  On-the-job injuries are referred to a company doctor.  
 
         Claimant's exit interview was conducted by telephone on May 29, 
 
         1984.  At the time of the exit interview, claimant did not 
 
         mention any work-related injury.  On cross-examination, Bradley 
 
         testified that UPS prefers that an injured employee complete an 
 
         injury report himself or herself.  This report would be completed 
 
         at the personnel department of UPS.
 
         
 
              Darrel Bridges gave rebuttal testimony.  He testified that 
 
         he is claimant's spouse and had a conversation with her on May 
 
         15, 1984 about a work-related injury at UPS on that date.  At 
 
         supper on May 15, 1984, claimant was having physical problems and 
 
         claimant's spouse asked her if she reported the injury to UPS.  
 
         She stated that she had not reported the injury and he instructed 
 
         her to report it on May 16 1984.  On the evening of May 16, 1984, 
 
         he asked claimant whether she had reported the injury to UPS and 
 
         she stated she had.
 
         
 
         
 
              Dr. Boulden stated on page 7 of exhibit 1:
 
         
 
              8-30-84:  Pat Bridges is a 33 year old female who has 
 
              developed low back pain starting in April of 1984.  She has 
 
              been treated by a chiropractor and that has not relieved her 
 
              symptoms and the last two months she has not had any real 
 
              relief.  Therefore, I have been asked to see the patient.
 
         
 
                 ....
 
         
 
              Impression: Probable herniated disc L5-Sl.
 
         
 
              Exhibit 1, page 9 (dated November 5, 1984), is authored by 
 
         Dr. Boulden and reads in part:
 
         
 
              It is my feeling that while she was working at UPS, that her 
 
              symptoms became worse to the point where she was found to 
 
              have a ruptured disc.
 
         
 
              Therefore, I feel they would be the people who would be 
 
              responsible for her problem, and therefore, this ties in 
 
              with my letter of October 15, 1986 concerning the same 
 
              matter.
 
         
 
              Exhibit 1, page 10 (dated July 11, 1986), is authored by Dr. 
 
         Marvin Dubansky and reads in part:
 
         
 
              CHIEF COMPLAINT:  Painful back, pain going down both legs, 
 
              mostly front, some in the back, sometimes goes down to the 
 
              calf.  This started when she bent over to pick up an 
 
              envelope on the floor while at work at Teleconnect in the 
 
              Fall of 1982.
 
         
 
              She then fell in 1984 at UPS and landed on her tailbone and 
 
              this bothers her a little bit at this time.  She went to a 
 
              chiropractor and eventually saw Dr. Boulden and a CAT scan 
 
              was done in August 1984 at Lutheran Hospital.  She was told 
 

 
         
 
         
 
         
 
         BRIDGES V. UNITED PARCEL SERVICE
 
         Page   6
 
         
 
         
 
              that she had a ruptured disc and should have surgery of one 
 
              disc and possibly another.  She decided not to have surgery 
 
              and had no other particular treatment except for the 
 
              chiropractor.
 
         
 
              Exhibit 1, page 12 (dated January 19, 1987), is authored by 
 
         Dr. Thomas Carlstrom and reads in part:
 
         
 
              According to the history the patient gave me, her current 
 
              symptoms should be considered related to the slipping injury 
 
              in May of 1984.
 
         
 
              I assume that she has reached maximum benefit of healing at 
 
              the present time, and probably has been at that level for 
 
              sometime.  According to the AMA guidelines, she would rate 
 
              about a 1% impairment.
 
         
 
              I don't think surgery is recommended.  I do note that she 
 
              has a very small [sic] herniated disc seen on the CT scan.  
 
              My best guess is that a surgical procedure would not leave 
 
              her feeling any better than she is right now, and that is 
 
              what I base the above recommendations upon.
 
         
 
              Exhibit A, page 8 (interrogatory 15) reads:
 
         
 
                   15.  Give the names of each and every person known to 
 
              the Claimant to have been present at the events of May 15, 
 
              1984, or who had personal knowledge of the same.
 

 
         
 
         
 
         
 
         BRIDGES V. UNITED PARCEL SERVICE
 
         Page   7
 
         
 
         
 
         
 
                   ANSWER:
 
         
 
                   Barb Schmidt [sic] - foreman - reported incident 
 
                   to her the day after when I reported to work.
 
         
 
                   Told my husband of incident when I got home that 
 
                   afternoon.
 
         
 
                   Went to see chiropractor (Dr. D. MacKenzie) day 
 
                   after incident.
 
         
 
              Exhibit A, page 21 (interrogatory 21) reads:
 
         
 
                   21.  State when and to whom of the Employer's personnel 
 
              the Claimant reported her alleged injuries and whether such 
 
              report was oral or written; if oral what was the substance 
 
              of such report?
 
         
 
                    ANSWER:
 
         
 
                    Barb Schmidt [sic] - foreman - reported incident 
 
                    to her upon arriving to work the day after the 
 
                    fall.  She told me to just take it easy.  As far 
 
                    as I know nothing was written up at the time.
 
         
 
              Exhibit B is the deposition of claimant taken on June 19, 
 
         1986.  On page 10, she described the Teleconnect incident.  On 
 
         pages 14-15, she described the UPS incident of May 15, 1984.  On 
 
         page 16, claimant stated once again that she reported the 
 
         incident of May 15, 1984 to Barbara Smith on May 16, 1084, when 
 
         she reported to work at about 11:30 a.m.  On page 17, she stated 
 
         that she does not recall Barbara Smith writing up an accident 
 
         report.  On page 18, she described her back problems caused by 
 
         the Teleconnect incident.  On page 25, claimant stated that the 
 
         only person at UPS that she told about the incident of May 15, 
 
         1984 was Barbara Smith.  On page 25, claimant stated that at the 
 
         time of her injury in May 1984 she was seeing a chiropractor for 
 
         back problems only.  On page 26, she stated that chiropractor 
 
         MacKenzie and Dr. Boulden were the only persons who treated her 
 
         for her injury of May 15, 1984.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Is this claim barred by Iowa Code section 85.23?  
 
         Lawyers and Higgs, Iowa Workers' Compensation -- Law and 
 
         Practice, section 10-1 (1984) reads at page 75:
 
         
 
                   Generally, the employer must have either actual 
 
              knowledge or notice of an injury within ninety days of the 
 
              "occurrence of any injury" or the employee is barred from 
 
              recovering workers' compensation.  The sole purpose of this 
 
              requirement is to give the employer an opportunity to 
 
              investigate the injury.  Due to the interpretation the Iowa 
 
              Supreme Court has given this requirement, only in a rare 
 
              case will the employee be barred for failing to give notice. 
 
               Failure to give notice is an affirmative defense with the 
 
              burden of proof on the employer."
 
         
 

 
         
 
         
 
         
 
         BRIDGES V. UNITED PARCEL SERVICE
 
         Page   8
 
         
 
         
 
         Lawyer and Higgs cite Mefferd v. Ed Miller & Sons, Inc., 33 
 
         Biennial Rep., Iowa Indus.  CommOr 191, 192 (Appeal Decision 
 
         1977) to support their assertion that O[f]ailure to give notice 
 
         is an affirmative defense with the burden of proof on the 
 
         employer."
 
         
 
              The Iowa Supreme Court stated in Dillinger v. City of Sioux 
 
         City, 368 N.W.2d 176, 179 (Iowa 1985):
 
         
 
              Notice under section 85.23.  In pertinent part, section 
 
              85.23 requires the employee to give the employer notice 
 
              within 90 days after the occurrence of the injury "unless 
 
              the employer or his representative shall have actual 
 
              knowledge of the occurrence of an injury."  Consequently, an 
 
              employee who fails to give a timely notice may still avoid 
 
              the sanction of section 85.23 if the employer had "actual 
 
              knowledge of the occurrence of the injury."
 
         
 
              The Iowa Supreme Court stated in Robinson v. Department of 
 
         Transp., 296 N.W.2d 809, 811 (Iowa 1980):
 
         
 
                   If the actual knowledge requirement were satisfied 
 
              without any information that the injury might be 
 
              work-connected, it should not be necessary to allege the 
 
              injury was work-connected when giving the statutory notice.  
 
              In fact, however, it is necessary to allege the injury was 
 
              work-connected when giving notice.  It logically follows 
 
              that the actual knowledge alternative is not satisfied 
 
              unless the employer has information putting him on notice 
 
              that the injury may be work-related.
 
         
 
              In the instant case, claimant testified under oath that she 
 
         informed Barbara Smith of May 16, 1984 at about 11:30 a.m. about 
 
         her alleged work-related injury of May 15, 1984.  I believe 
 
         claimant's testimony in this regard; specifically, I believe that 
 
         claimant had a conversation with Barb Smith on May 16, 1984 about 
 
         her alleged injury and that Ms. Smith was informed that the 
 
         alleged injury occurred at work.  Ms. Bradley testified that Ms. 
 
         Smith was the proper supervisory person for claimant to report to 
 
         in the event of a work-related injury.  Ms. Smith's testimony at 
 
         hearing that she did not have a conversation with claimant in May 
 
         1984 about an incident on May 15, 1984 is not believed because 
 
         she obviously demonstrated a faulty memory by her performance at 
 
         the hearing held on March 11, 1987.
 
         
 
              It is of no consequence in this particular case who has the 
 
         burden of proof on the section 85.23 issue because claimant's 
 
         testimony, on the fact issue of whether she told her UPS 
 
         supervisor about the incident of May 15, 1984, is believed by 
 
         this hearing deputy.  In other words, if it is assumed for 
 
         purposes of discussion that a claimant has the burden of 
 
         persuasion to establish compliance with section 85.23, claimant 
 
         in this case would still prevail on the section 85.23 issue.
 
         
 
              II.  Claimant has the burden of proving by a preponderance 
 
         of the evidence that she received an injury on May 15, 1984 which 
 
         arose out of and in the course of employment.  McDowell v. Town 
 
         of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 

 
         
 
         
 
         
 
         BRIDGES V. UNITED PARCEL SERVICE
 
         Page   9
 
         
 
         
 
         
 
              Claimant established by a preponderance of the evidence that 
 
         she sustained a work-related injury on May 15, 1984 while working 
 
         for UPS.
 
         
 
              III.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the injury of March 15, 1984 
 
         is causally related to the disability on which she now bases her 
 
         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).
 
         
 
              Dr. Boulden's opinion on this causal connection issue is 
 
         persuasive.  Claimant, therefore, carried her burden of proof on 
 
         this fighting issue.  Claimant sustained some permanent partial 
 
         impairment as a result of her work-related injury of May 15, 
 
         1984.  I am convinced that claimant sustained a new injury or 
 
         materially aggravated a preexisting condition.
 
         
 
              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 75 , 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).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 
 
         (1960).
 

 
         
 
         
 
         
 
         BRIDGES V. UNITED PARCEL SERVICE
 
         Page  10
 
         
 
         
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation SS555(17)a.
 
         
 
              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, 252 Iowa 613, 620, 106 N.W.2d 591, and 
 
         cases cited.
 
         
 
              IV.  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 
 
         OdisabilityO 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.
 
         
 

 
         
 
         
 
         
 
         BRIDGES V. UNITED PARCEL SERVICE
 
         Page  11
 
         
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy 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 entitled to some permanency benefits in this 
 
         case and, therefore, the date when the benefits commence must be 
 
         determined.  Some evidence of record on this issue is Dr. 
 
         Carlstrom's opinion found at page 12 of exhibit 1.  However, the 
 
         evidence of record does not provide much basis for resolution of 
 
         this issue.  Based on the information set out on page 7 of 
 
         exhibit 1, it is concluded that claimant had reached maximum 
 
         healing on August 30, 1984 and, therefore, permanency benefits 
 
         commence on August 31, 1984.
 
         
 
              Claimant's current employment as a deputy clerk is a 
 
         consideration in assessing her industrial disability; her current 
 

 
         
 
         
 
         
 
         BRIDGES V. UNITED PARCEL SERVICE
 
         Page  12
 
         
 
         
 
         employment lessens her industrial disability and defendants' 
 
         resulting liability.  However, I am convinced that claimant has 
 
         sustained some loss of earning capacity as a result of her 
 
         work-related injury of May 15, 1984 and resulting permanent 
 
         partial impairment.  A showing that a claimant has not sustained 
 
         any loss, or a small loss, of actual earnings does not preclude a 
 
         finding of industrial disability.  See Michael v. Harrison 
 
         County, 34 Biennial Reports, Iowa Indus.  CommOr 218, 220 (Appeal 
 
         Decision 1979) and the cases discussed therein.  Taking all 
 
         appropriate factors into account, it is concluded that claimant 
 
         is entitled to 25 weeks of permanent partial disability benefits 
 
         based on an industrial disability of five percent.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was born on October 18, 1950.
 
         
 
              2.  Claimant graduated from high school in 1968.
 
         
 
              3.  After graduating from high school claimant worked at a 
 
         number of clerical jobs.
 
         
 
              4.  Claimant worked for Teleconnect in Cedar Rapids, Iowa 
 
         from July 1982 through February 1983 as a secretary/receptionist 
 
         and injured her back while employed by Teleconnect.
 
         
 
              5.  Claimant started working for UPS in April 1984 and 
 
         voluntarily quit her employment with UPS in May 1984.
 
         
 
              6.  On May 15, 1984, claimant sustained a new injury to her 
 
         back or materially aggravated her preexisting back condition.
 
         
 
              7.  On May 16, 1986, claimant informed her immediate 
 
         supervisor, Barbara Smith, about her work-related injury of May 
 
         15, 1984 and told Ms. Smith that this injury was sustained on the 
 
         job.
 
         
 
         
 
              9.  Claimant reached maximum healing on August 30, 1984.
 
         
 
             10.  Claimant is currently working as a deputy clerk for the 
 
         U.S. District Court and is paid about $17,000 per year.
 
         
 
             11.  Claimant's industrial disability is five percent (5%).
 
         
 
             12. Claimant's stipulated rate is ninety-nine and 26/100 
 
         dollars ($99.26).
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This action is not barred by Iowa Code section 85.23.
 
         
 
              2.  Claimant sustained a work-related injury at UPS on May 
 
         15, 1984.
 
         
 
              3.  There is a causal connection between the work-related 
 
         injury of May 15, 1984 and some permanent partial impairment.
 
         
 

 
         
 
         
 
         
 
         BRIDGES V. UNITED PARCEL SERVICE
 
         Page  13
 
         
 
         
 
              4.  Claimant is not entitled to any healing period benefits 
 
         because after her separation from UPS she started work for the 
 
         U.S. District Court; her permanency benefits commence on August 
 
         31, 1984 if it is necessary to determine when she reached maximum 
 
         healing.  An argument could be made that permanency benefits 
 
         should commence on May 15, 1984 because claimant is not entitled 
 
         to any healing period benefits.  It is unnecessary to resolve 
 
         this issue as claimant is only entitled to twenty-five (25) weeks 
 
         of permanency benefits.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That defendants pay claimant twenty-five (25) weeks of 
 
         permanent partial disability benefits at a rate of ninety-nine 
 
         and 26/100 dollars ($99.26).
 
         
 
              That defendants pay accured benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendants be given credit for benefits already paid to 
 
         claimant.
 
         
 
              That defendants pay the costs of this action pursuant to 
 
         Industrial Services Rule 343-4.33
 
         
 
              That defendants shall file claim activity reports, pursuant
 
         
 
         
 
         
 
         to Industrial Services Rule 343-3.1(2), as requested by the 
 
         agency.
 
         
 
         
 
              Signed and filed this 8th day of April, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          T. J. McSWEENEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Avenue
 
         Des Moines, Iowa 50309-3320
 
         
 
         Mr. W. C. Hoffmann
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa 50309
 
 
 
         
 
 
            
 
 
 
 
 
 
 
           
 
                                                    1402.50;1403.30; 1803
 
                                                    Filed 4-8-87
 
                                                    T. J. McSweeney
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         PATRICIA A. BRIDGES,
 
         
 
              Claimant,                           File No. 781971
 
         
 
         VS.
 
         
 
         UNITED PARCEL SERVICE,                A R B I T R A T I 0 N
 
         
 
              Employer,                           D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.50; 1403.30; 1803
 
         
 
              Held in arbitration that defendants had actual knowledge of 
 
         claimant's alleged injury within 90 days of its occurrence.  
 
         Defendants argued that at no point in time did claimant report 
 
         her alleged work-related injury until she filed her claim.  
 
         Claimant testified that her work-related injury was reported the 
 
         day after the incident and I believed her testimony in this 
 
         regard.
 
         
 
              Claimant's alleged back injury was determined to be 
 
         work-related and she was awarded 25 weeks of permanent partial 
 
         disability benefits based on an industrial disability of 5%.  
 
         Claimant is currently employed as a deputy clerk of the U.S. 
 
         District Court, Southern District of Iowa.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          2906 - 2908 - 2602
 
                                          Filed May 31, 1990
 
                                          JON E. HEITLAND
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BRAD OLSON,                   :
 
                                          :
 
                 Claimant,                :       File Nos. 782006
 
                                          :                 793867
 
            vs.                           :                 858635
 
                                          :
 
            WILSON FOODS CORPORATION,     :        A P P E A L
 
                                          :
 
                 Employer,                :      D E C I S I O N
 
                 Self-Insured,            :
 
            and                           :
 
                                          :
 
            SECOND INJURY FUND OF IOWA,   :
 
                                          :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            2906, 2908
 
            Iowa Rule of Civil Procedure 80(a) is applicable to 
 
            proceedings before the Iowa industrial commissioner. 
 
            
 
            2908
 
            Claimant's attorney filed a petition, which was then amended 
 
            3 times.  Each new petition alleged a different part of the 
 
            body affected and/or injury date.  A deputy disallowed the 
 
            last petition, which was filed near the scheduled hearing.  
 
            The deputy and the attorneys for the defendants and the 
 
            Second Injury Fund of Iowa appeared at the hearing, along 
 
            with witnesses, including a doctor.  Claimant's attorney had 
 
            left word that the case would be dismissed without 
 
            prejudice.  The deputy ordered claimant to pay the costs up 
 
            until that point, and, after finding that the amendments to 
 
            the petition were the result of inattention on the part of 
 
            claimant's counsel, also ordered claimant's attorney to pay 
 
            attorney's fees, travel costs, and a $450 fee to the doctor 
 
            pursuant to rule 80(a).  Later in the day, claimant's 
 
            attorney appeared, and the hearing was reconvened and the 
 
            matter of sanctions discussed.  Claimant's attorney did not 
 
            object to the imposition of sanctions but did argue the 
 
            amount.  The deputy gave all parties additional time to file 
 
            written briefs on the matter of sanctions. 
 
            Held that claimant's attorney's conduct was not filed for 
 
            the purpose of harassment or causing unnecessary delay, even 
 
            though delay did result.  Rather, claimant's attorney's 
 
            conduct called for sanctions under another part of rule 
 
            80(a), which indicates that claimant's signature on the 
 
            numerous petitions was a representation that they were well 
 
            grounded in fact after reasonable inquiry.  Thus, sanctions 
 

 
            
 
 
 
 
 
 
 
 
 
 
 
            were called for.  
 
            Also held that claimant's attorney was not denied due 
 
            process in that the decision on imposition of sanctions was 
 
            postponed and the parties given an opportunity to be heard 
 
            on the question through briefs.  This gave claimant's 
 
            counsel both notice of the intent to impose sanctions, and 
 
            an opportunity to be heard on the question, thus complying 
 
            with Carr v. Hovick,  ____N.W.2d____ (Iowa, 1990).(decided 
 
            Feb. 21, 1990).
 
            
 
            2602
 
            Also held that even when imposing an expert witness' fee as 
 
            a sanction under rule 80(a), the $150 per day limitation 
 
            applies.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ALLEN LEE MATOUS,
 
         
 
              Claimant,
 
                                                File No. 782055
 
         vs.
 
                                             A R B I T R A T I O N
 
         THE HUBINGER COMPANY,
 
                                                D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Allen Lee 
 
         Matous, claimant, against The Hubinger Company, employer, and 
 
         Liberty Mutual Insurance Company, insurance carrier, defendants. 
 
          The case was heard by former Deputy Industrial Commissioner 
 
         Garry D. Woodward.  The case was fully submitted at the 
 
         completion of the hearing.
 
         
 
              On July 13, 1988, this case was transferred to the 
 
         undersigned by David E. Linquist, Industrial Commissioner.
 
         
 
              The record consists of the testimony of:  Allen Lee Matous, 
 
         claimant.  The record also consists of claimant's exhibits 1-10 
 
         and defendants' exhibits 1-17.  Both parties include the 
 
         deposition of Gerald P. Kealey, M.D., as an exhibit.
 
         
 
              The parties stipulate that the claimant sustained an injury 
 
         on December 9, 1984 which arose out of and in the course of the 
 
         claimants employment. in addition, the parties stipulate that the 
 
         alleged injury was the cause of a temporary disability and that 
 
         weekly compensation for the period from December 10, 1984 to 
 
         October 16, 1986 was paid in full (96 weeks).  The parties 
 
         additionally stipulate that the defendants have paid 62 weeks of 
 
         permanent partial disability benefits for the period from October 
 
         17, 1986 to December 24, 1987.
 
         
 
                                  ISSUE PRESENTED
 
         
 
              The issue presented by the parties is whether the claimant 
 
         is entitled to permanent partial disability payments in excess of 
 
         the 62 weeks previously paid by the defendants.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant has been employed by the defendant since September 
 
         29, 1958.  Since September 8, 1980, claimant has worked in the 
 

 
         
 
         
 
         
 
         MATOUS V. THE HUBINGER COMPANY
 
         PAGE   2
 
         
 
         
 
         steam and water department.
 
         
 
              Claimant testified he has a high school education, had been 
 
         in the navy for four years, and had also worked at National 
 
         Carbide prior to his employment with defendant.
 
         
 
              For the duration of claimant's employment, he has been a 
 
         member of the grain miller's union and subject to the collective 
 
         bargaining agreements between the union and the company.  At all 
 
         times the collective bargaining agreement has controlled the 
 
         wages due to the claimant.  The claimant is paid on an hourly 
 
         basis.  There is no incentive pay and overtime is offered on an 
 
         as needed basis.
 
         
 
              On December 9, 1984, claimant was severely burned on 33 
 
         percent of his body while at work.  A vessel spewed hot water 
 
         upon him while he was in the steam and water department.
 
         
 
              As a result of his work related injury, claimant was absent 
 
         from work from December 9, 1984 until October 16, 1986.  Upon 
 
         claimant's return to work, he was placed in the same position 
 
         which he held prior to the date of his injury.  He has been 
 
         continuously employed in the same capacity since then.
 
         
 
              Subsequent to his injury date, the claimant had been treated 
 
         by Albert E. Cram, M.D., and Gerald P. Kealey, M.D., of the Burn 
 
         Center at the University of Iowa Hospitals and Clinics.  For 
 
         nearly two years the claimant participated in an intensive 
 
         physical therapy program.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City 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."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act 
 
              means industrial disability, although functional 
 
              disability is an element to be considered . . . In 
 
              determining industrial disability, consideration may be 
 
              given to the injured employee's age, education, 
 
              qualifications, experience and his inability, because 
 
              of the injury, to engage in employment for which he is 
 

 
         
 
         
 
         
 
         MATOUS V. THE HUBINGER COMPANY
 
         PAGE   3
 
         
 
         
 
              fitted. * * * *
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson, 
 
         255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).
 
         
 
              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, 
 
         255 Iowa 1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 
 
         253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
          Neither does a rating of functional impairment directly 
 
         correlate to a degree of industrial disability to the body as a 
 
         whole.  In other words, there are no formulae which can be 
 
         applied and then added up to determine the degree of industrial 
 
         disability. it therefore becomes necessary for the deputy or 
 
         commissioner to draw upon prior experience, general and 
 
         specialized knowledge to make the finding with regard to degree 
 
         of industrial disability.  See Peterson v. Truck Haven Cafe, 
 
         Inc., (Appeal Decision, February 28, 1985); Christensen v. 
 
         Hagen, Inc., (Appeal Decision, March 26, 1985).
 
         
 
                                     
 
         
 

 
         
 
         
 
         
 
         MATOUS V. THE HUBINGER COMPANY
 
         PAGE   4
 
                                   
 
                                   
 
                                   ANALYSIS
 
         
 
              Claimant has satisfactorily established that he suffered a 
 
         12 percent functional impairment.  Claimant has met his burden in 
 
         proving that he is entitled to additional benefits beyond the 12 
 
         percent functional rating provided by his physician.
 
         
 
              On February 10, 1987, and then again on February 24, 1988, 
 
         the claimant was evaluated for a functional impairment.  Dr. 
 
         Kealey, in his letter of February 11, 1987, writes the following 
 
         concerning the claimant's impairment:
 
         
 
                 This is your disability rating which was 
 
              performed here at the University of Iowa Burn 
 
              Center on February 10, 1987.
 
         
 
                 You are 55-year-old white male who incurred a 
 
              33% body surface area scald burn on December 9, 
 
              1984.  You received your medical treatment at The 
 
              University of Iowa Burn Treatment Center.  No 
 
              split thickness skin grafts were required to close 
 
              your wounds at the time of your acute care.
 
         
 
                 The appearance of your burn wounds and donor 
 
              sites is as follows.  Your face is well healed 
 
              without significant scar changes.  The left 
 
              anterior and lateral chest wall show signs of 
 
              hypopigmentation and loss of hair follicles, but 
 
              has no hypertrophic or raised scar at this time.  
 
              Your left arm and upper extremity show decreased 
 
              pigmentation and loss of hair follicles.  There is 
 
              some moderate hypertrophic scarring at the elbow 
 
              and the upper arm.  There is minor web space 
 
              advancement between the fingers of the left hand. 
 
               The right upper extremity shows very little 
 
              scarring.  The left lower extremity shows 
 
              hypopigmentation of the skin, but no raised or 
 
              hypertrophic scars, and some loss of hair 
 
              follicles.  The right leg shows very slight 
 
              indications of injury at this time.
 
         
 
                 On reviewing your symptoms related to your burn 
 
              it is apparent that you have residual discomfort 
 
              associated with heat and cold exposure.  You are 
 
              unable to tolerate exposure to sunlight or 
 
              ultraviolet radiation.  You have decreased 
 
              perspiration of the left chest and left upper 
 
              extremity.  Your face exhibits hyperperspiration. 
 
               These findings are entirely consistent with the 
 
              post burn syndrome.
 
         
 
                 You stated that still occasionally have 
 
              nightmares associated with the accident and have 
 
              occasional anxiety attacks associated with 
 
              memories of the accident.  You also complained of 
 
              decreased lift [sic] hand grip strength.  It 
 
              should be noted that you are left hand dominant.  
 
              You also stated that the burned areas which 
 
              include the left upper extremity and left chest 
 
              are dry, scaly, itch, and require constant 
 
              lubrication with skin emollients for control of 
 
              your symptoms.
 
         
 
                 On physical examination you were found to have 
 
              decreased 2 point in sharp/dull sensation 
 

 
         
 
         
 
         
 
         MATOUS V. THE HUBINGER COMPANY
 
         PAGE   5
 
         
 
         
 
              discrimination in the left upper extremity and the 
 
              left chest.  However, light touch was in tact.
 
         
 
                 You have a normal gait.  You have approximately 
 
              a 5% decrease in left hand grip strength when 
 
              compares with your non-dominant right hand.  Range 
 
              of motion was slightly restricted but within the 
 
              upper limits of normal for an individual of your 
 
              age.
 
         
 
                 Assessment of your findings demonstrates that 
 
              you have a well healed burn injury with cutaneous 
 
              symptoms consistent with your injuries.  The 
 
              scarring is generally confined to the left upper 
 
              extremity and the left anterior chest.  You 
 
              demonstrated definite pigmentation loss, definite 
 
              decrease in sensation, and historically relate 
 
              decrease in sweating and skin lubrication.  This 
 
              is a direct result of loss of those glands in the 
 
              effected areas.
 
         
 
                 You do have a demonstratable loss of left hand 
 
              grip strength.  However, individual muscle tests 
 
              isolated no specific weakness.  You have been able 
 
              to continue to perform heavy manual labor despite 
 
              the decreased strength and pain resultant from 
 
              this injury.  Your left wrist, elbow, and shoulder 
 
              show some decreased range of motion.  However, 
 
              there is no significant loss of range of motion in 
 
              the left upper extremity, left elbow or left 
 
              wrist.  Functional values are still within normal 
 
              limits.  In general I would say that you have 
 
              demonstrated a good recovery from this injury 
 
              despite the persistent and permanent skin changes 
 
              that will not recover or improve with the passage 
 
              of time.
 
         
 
                 When making a disability rating, we use the 
 
              following text:  Guides to the Evaluation to 
 
              Permanent Impairment, published by the American 
 
              Medical Association Committee on Rating of Mental 
 
              and Physical impairment, Copyright 1977, Library 
 
              of Congress catalog card number 74-151606.
 
         
 
                 Your findings are those of a permanent skin 
 
              injury.  On the basis of your symptoms I would 
 
              state that you have a Class II impairment of the 
 
              whole man.  This occurs when the signs and 
 
              symptoms. of a skin disorder are present and 
 
              intermittent treatment is required and there is 
 
              limitation in the performance in some of the 
 
              activities of daily living.  I believe that you 
 
              meet these criteria and on the basis of this I 
 
              would assign you a 12% whole man permanent 
 
              disability.  This rating is permanent because I do 
 
              not think your symptoms are likely to change or 
 
              improve at any time in the foreseeable future.
 
         
 
                 If I can be of any further help in this matter, 
 
              please feel free to contact me.
 
         
 
              One year later, Dr. Kealey re-evaluated the claimant.  Dr. 
 
         Kealey writes the following in his letter of February 25, 1988 to 
 

 
         
 
         
 
         
 
         MATOUS V. THE HUBINGER COMPANY
 
         PAGE   6
 
         
 
         
 
         claimant:
 
         
 
                 You were seen in the Burn Clinic for follow-up on 
 
              the 24th of February, 1988.  You were last seen here on 
 
              February 11, 1987, at which time a disability rating 
 
              was performed.  Since that time your complaints have 
 
              remained essentially the same.  Because of the severity 
 
              of the winter you have noticed increased sensitivity of 
 
              your hands to cold, and an inability to tolerate long 
 
              term exposure to cold.  This is entirely consistent 
 
              with your burn injury.  Because of the consistency and 
 
              permanence of your complaints, and the nature of 
 
              recovery from burn injury I feel that your whole man 
 
              disability rating of 12% is unchanged since your last 
 
              visit here.  Therefore, I do not think that your 
 
              clinical situation has changed in any way whatsoever.
 
         
 
                 If I can be of any further help, please feel free to 
 
              contact me.
 
         
 
              Dr. Kealey, upon a request by the claimant's attorney, 
 
         responded:
 
         
 
              This letter is in reply to your correspondence of March 
 
              1, 1988, concerning Mr. Matous.  The impairment 
 
              problems I listed in Mr. Matous's disability rating of 
 
              February 11, 1987, are directly related to his accident 
 
              on December 9, 1984.  They are not in addition to the 
 
     
 
         
 
         
 
         
 
         
 
         MATOUS V. THE HUBINGER COMPANY
 
         PAGE   7
 
         
 
         
 
              12% permanent impairment rating, they are they [sic] 
 
              the reason for the 12% permanent disability rating.
 
         
 
                 If I can be of any further help in this matter 
 
              please feel free to contact me.
 
         
 
              There is no question claimant has demonstrated he has a five 
 
         percent loss of grip strength.  Claimant has shown he is 
 
         extremely sensitive to hot and cold.  He will continue to be 
 
         temperature sensitive in the future.  Claimant has established he 
 
         has a permanent partial disability which exceeds the 12 percent 
 
         functional impairment rating.
 
         
 
              Claimant contends he has lost wages since the date of his 
 
         injury.  Claimant reveals under cross-examination by defendants' 
 
         attorney:
 
         
 
              Q.  And you are able to do the work that is assigned to 
 
              you?
 
         
 
              A.  Yes.
 
              (Transcript, page 44)
 
         
 
                 ...
 
         
 
              Q.  This swing shift that you are talking about that is 
 
              the same way that you worked before December 9, 1984?
 
         
 
              A.  Yes.
 
         
 
              Q.  What do you have, a 42-hour shift?
 
         
 
              A.  Yes.
 
         
 
              Q.  All right, explain that.
 
         
 
              A.  Right now I am on 4 to 12.  I will work 7 days of 4 
 
              to 12 and then I have one day off.  They say two, but I 
 
              will have Thursdays off and I will go to midnights 
 
              Friday night.
 
         
 
                 Then I will work 7 days of midnights and then I am 
 
              off Friday morning and I don't go back to days again 
 
              until Tuesday morning and then I work 7 days of days 
 
              and then I go back to work -- No it is 7 days of days 
 
              and then I am off Tuesday and Wednesday and I come in 
 
              Thursday on 4 to 12.
 
         
 
              Q.  And that is the identical way that you did it 
 
              before December 9 of 1984?
 
         
 
              A.  Yes, but I worked my days off most of the time back 
 
              before I got hurt.
 
         
 
              Q.  Well, Hubinger doesn't have as much overtime 
 
              available now.
 
         
 
              A.  Well, they are having overtime now but I can't do 
 
              it.
 
         
 
              Q.  Well, isn't there a difference between business 
 
              conditions on December 9, 1984 and today?
 
         
 

 
         
 
         
 
         
 
         MATOUS V. THE HUBINGER COMPANY
 
         PAGE   8
 
         
 
         
 
              A.  Yes there is.
 
         
 
              Q.  And that effects the overtime offered, right?
 
         
 
              A.  Yes.
 
         
 
              A.  [sic] And that would effect the amount of overtime 
 
              available to you?
 
         
 
              A.  Yes, but I have turned down a lot of overtime that 
 
              I could have worked already.
 
         
 
              Q.  But you did that before too, didn't you?
 
         
 
              A.  Not before I got burned, only since I came back to 
 
              work.  I don't hardly work any overtime unless I have 
 
              to.
 
         
 
              Q.  But there isn't a lot offered is there?
 
         
 
              A.  Not a lot, but in my department there is quite bit 
 
              of overtime.
 
         
 
                 I have got the seniority.  I could work it, but I 
 
              don't feel like it.  But there is not as much as there 
 
              was before.
 
              (Trans., pp. 53-55)
 
         
 
         The claimant has returned to the same position which he has held 
 
         since his injury date.  Claimant is at the wage rate specified in 
 
         the current collective bargaining agreement.  His injury has in 
 
         no way affected the hourly rate of pay which he is to receive 
 
         pursuant to the contract.
 
         
 
              While it is true the claimant in 1987 earned nearly $2,000 
 
         less than the sum he earned in 1984, he has not established that 
 
         this lesser figure is attributable to his injury.  Prior to the 
 
         claimant's injury, he stated he worked nearly every day, 
 
         including his two regularly scheduled off days.  The extra work 
 
         resulted in overtime pay pursuant to the collective bargaining 
 
         agreement.  Under cross-examination, the claimant admitted not as 
 
         much overtime work had been offered by the employer.  Claimant 
 
         agreed with defendants' counsel.  There had been a change in 
 
         business conditions since the date of his injury.  Claimant 
 
         indicated that while he had not felt like working overtime hours, 
 
         less overtime work had been offered to him because of the change 
 
         in business conditions.  Such a change in business conditions in 
 
         no way reflects upon the claimants earning capacity due to his 
 
         injury.
 
         
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  On December 9, 1984, claimant was injured while 
 
         working for defendant.
 
         
 
              FINDING 2.  As a result of that injury, claimant suffered 
 
         burns on 33 percent of his body.
 
         
 

 
         
 
         
 
         
 
         MATOUS V. THE HUBINGER COMPANY
 
         PAGE   9
 
         
 
         
 
              FINDING 3.  As a result of his injury, claimant has a loss 
 
         of grip strength and a sensitivity to hot and cold.
 
         
 
              FINDING 4.  As a result of the injury on December 9, 1984, 
 
         claimant suffered a functional impairment of 12 percent of the 
 
         body as a whole.
 
         
 
              FINDING 5.  As a result of his injury, claimant has a loss 
 
         of grip strength and is sensitive to heat and cold.
 
         
 
              CONCLUSION A.  Claimant has a permanent partial disability 
 
         of 17 percent as a result of his injury of December 9, 1984.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant permanent partial disability 
 
         benefits of eighty-five (85) weeks at the rate of three hundred 
 
         sixty-six and 54/100 dollars ($366.54) per week.  Defendants take 
 
         credit for benefits previously paid.
 
         
 
              Accrued benefits for this case are to be made in a lump sum 
 
         together with statutory interest at the rate of 10 percent (10%) 
 
         per year pursuant to section 85.30, Code of Iowa, as amended.
 
         
 
              Defendants pay costs of these proceedings pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall filed final reports upon payment of this 
 
         award.
 
         
 
         
 
              Signed and filed this 4th day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       
 
         
 
         
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Ave.
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Walter F. Johnson
 
         Attorney at Law
 
         111 W. Second St.
 
         P. O. Box 716
 
         Ottumwa, Iowa 52501
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803
 
                                                 Filed October 4, 1988
 
                                                 MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ALLEN LEE MATOUS,
 
         
 
              Claimant,
 
                                                   File No. 782055
 
         vs.
 
                                                A R B I T R A T I O N
 
         THE HUBINGER COMPANY,
 
                                                   D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Claimant awarded 17 percent permanent partial disability 
 
         subsequent to injury resulting in functional impairment of the 
 
         body as a whole.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TERRY L. KOLLN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                         File Nos. 782163
 
         FARMLAND FOODS, INC.,                                     816127
 
                                                                   816128
 
              Employer,
 
                                                      A R B I T R A T I 0 N
 
         and
 
                                                         D E C I S I 0 N
 
         
 
         AETNA CASUALTY & SURETY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              These are proceedings in arbitration brought by the 
 
         claimant, Terry L. Kolln, against his employer, Farmland Foods, 
 
         Inc., and its insurance carrier, Aetna Casualty & Surety Company, 
 
         to recover benefits under the Iowa Workers' Compensation Act as a 
 
         result of injuries allegedly sustained on July 13, 1984, November 
 
         14, 1984 and January 20, 1986.  This matter came on for hearing 
 
         before the undersigned deputy industrial commissioner at Sioux 
 
         City, Iowa on February 2, 1988.  First reports of injury were 
 
         filed on January 4, 1988 as regards the alleged July 13, 1984 
 
         injury; on December 13, 1984 as regards the alleged November 14, 
 
         1984 injury; and, on January 4, 1988 as regards the alleged 
 
         January 20, 1986 injury.  As regards the alleged November 14, 
 
         1984 injury, the parties have stipulated that claimant's rate of 
 
         compensation is $275.42 and that claimant has been paid healing 
 
         period benefits of $2,373.10 and permanent partial disability 
 
         benefits of $8,337.15.
 
         
 
              The record in this case consists of the testimony of 
 
         claimant and of Mary Tigges, R.N., as well as of joint exhibits 1 
 
         through 35.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report, the parties stipulated 
 
         that claimantOs rate of weekly compensation as regards the 
 
         alleged 1984 injuries is $275.42 and as regards the alleged 1986 
 
         injury is $245.86.  They further stipulated that the provider of
 
         medical services would testify the fee for such services was 
 
         reasonable and that defendants are not offering contrary 
 
         evidence.  The issues remaining to be decided are:
 

 
         
 
         
 
         
 
         KOLLN V. FARMLAND FOODS, INC.
 
         Page   2
 
         
 
         
 
         
 
              1.  Whether claimant has received injuries which arose out 
 
         of and in the course of his employment on the alleged injury 
 
         dates;
 
         
 
              2.  Whether a causal relationship exists between 
 
         claimant's alleged injuries and claimed disability;
 
         
 
              3.  Whether claimant is entitled to benefits and the 
 
         nature and extent of any benefit entitlement; and,
 
         
 
              4.  Whether claimant is entitled to payment, in whole or 
 
         in part, of Dr. Blume's charges for an independent medical 
 
         examination under Iowa Code section 85.39.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              Claimant's date of birth is June 27, 1951. he is a high 
 
         school graduate who also completed an 18-month course in aviation 
 
         mechanics.  He has been federally certified in aviation 
 
         mechanics, although his certification is not now in effect.  
 
         Claimant has never worked as an aviation mechanic.  Claimant has 
 
         worked as a farmer with his father; as an upholsterer and 
 
         upholsterer's helper; as a laborer in a hide plant; and, as a 
 
         laborer at Farmstead Foods.  Claimant has also owned and 
 
         continues to operate his own upholstery business.
 
         
 
              Claimant reported that, on July 13, 1984, he was working as 
 
         a forker on the 25-pound HRI line.  He described the forker as 
 
         having an approximately 18-inch long prong with which to scoop up 
 
         5-pound sections of bacon.  He reported that the laborer then 
 
         turned and twisted from the waist while sliding the bacon into a 
 
         box.  Glands were also picked out of approximately 50% of the 
 
         slices.  The individual must raise his arms above shoulder height 
 
         and then slide down to turn the bacon into the box.  The full box 
 
         then slides down the line.  The left arm is used on the opposite 
 
         side of the table where substantially the same procedure is 
 
         followed.
 
         
 
              Claimant reported that, on July 13, 1984, he had neck pain 
 
         such that he reported to the nurse's station and received 
 
         aspirin. He indicated that his foreman threatened to fire him if 
 
         he were off the line for any length of time, even though a cooler 
 
         was also blowing on his neck.  A nursing note which Mary Tigges, 
 
         R.N., occupational health nurse for Farmland Foods, identified as 
 
         her own for July 13, 1984 indicates that claimant complained of a 
 
         sore neck and claimed he needed to work twice as hard since he 
 
         was training a new scooper.  Claimant took two acetametaphine 
 
         tablets and was given two to take later.  According to the 
 
         report, claimant refused referral to a doctor if the doctor was 
 
         only to describe muscle relaxants.  Claimant subsequently saw R. 
 

 
         
 
         
 
         
 
         KOLLN V. FARMLAND FOODS, INC.
 
         Page   3
 
         
 
         
 
         M. Mason, M.D., on his own.  Dr. Mason took claimant off work for 
 
         two days with a work return of July 19, 1984.  Claimant reported 
 
         that he then took no aspirins or other medication for his neck, 
 
         although he did receive medication for his hands.
 
         
 
              Claimant reported that, on November 14, 1984, he was either 
 
         working as a scooper, a handler, a bacon grader or packing off.  
 
         Claimant described each process and each involved repetitive hand 
 
         movements over the course of an eight-hour day.  Claimant 
 
         indicated that his fingers began to swell and that he lost 
 
         dexterity.  He saw Donald Soil, M.D., who prescribed 
 
         acetametaphine and a splint.  Claimant returned to work and 
 
         reported a gradual worsening of his hand symptoms.  He 
 
         subsequently saw Dr. Mason who referred him to John Green, M.D. 
 
         Dr. Green performed electromylographic studies and, subsequently, 
 
         bilateral carpal tunnel releases; right release on February 7, 
 
         1985 and left release on March 7, 1985.  Claimant returned to 
 
         work approximately eight weeks following his releases and was 
 
         comfortable until three or four months subsequent to his work 
 
         return, at which time he experienced bilateral swelling of his 
 
         hands.  Claimant reported that he then saw Dr. Green in January, 
 
         1986.  Anti-inflammatories were prescribed.  Claimant ceased to 
 
         use them as they upset his stomach.  In February, 1986, Chester 
 
         Thompson, M.D., evaluated claimant.  Dr. Thompson recommended 
 
         claimant work in a warmer environment in a job requiring less 
 
         speed and repetition.  Dr. Thompson felt that claimant's index 
 
         finger [injury] had resulted in permanent injury, but that 
 
         claimant's hand and wrist swelling as well as his numbness would 
 
         markedly improve with a change in claimant's environment.  Dr. 
 
         Thompson indicated that, as of March 17, 1986, claimant had a 20% 
 
         permanent partial impairment of the right hand and a 15% 
 
         permanent partial impairment of the left hand.
 
         
 
              On January 20, 1986, claimant reported that he experienced 
 
         problems with his left hip and left arm and shoulder numbness 
 
         while either working in scooping or packing off.  Claimant states 
 
         that he used BenGay and aspirin for those conditions as advised 
 
         by the plant nurse.  He also saw Robert Soll, M.D., who 
 
         reportedly attempted manipulation and flexiral.  On February 8, 
 
         1986, Dr. Soll reported that radiographic x-rays obtained showed 
 
         claimant had a narrowed C5-6 disc space.  Dr. Soll apparently. 
 
         referred claimant to Alan Frion, M.D., a neurologist.  Dr. Frion 
 
         reported that claimantOs neurological examination with respect to 
 
         his upper extremities was within normal limits and that claimant 
 
         had a relatively free range of motion of the cervical spine when 
 
         examined.  Dr. Frion opined that claimant's pain was related to 
 
         his spur formations seen on radiographs, but that examination did 
 
         not show hard evidence of radiculopathy or decrease in cervical 
 
         mobility.  The doctor stated that he felt chances that claimantOs 
 
         arthritic process was self-limiting were fairly good and that 
 
         there was no current evidence of a need for surgical 
 
         intervention.  The doctor advised claimant to take aspirin on a 
 
         regular basis for a week or two to determine whether such would 
 
         reduce his general level of neck discomfort.
 
         
 
              The insurer subsequently referred claimant to John J. 
 
         Dougherty, M.D.  Dr. Dougherty, of Orthopaedic Associates of 
 
         Sioux City, P.C., saw claimant on October 2, 1986 and reported on 
 
         October 31, 1986 that claimant presented a markedly degenerative 
 

 
         
 
         
 
         
 
         KOLLN V. FARMLAND FOODS, INC.
 
         Page   4
 
         
 
         
 
         disc at C5-6 with marked spur formation.  He indicated that, upon 
 
         examination, claimant's range of motion was really fairly good 
 
         with only minimal discomfort with rotation to the right.  The 
 
         doctor reported that claimant did not appear to have neurological 
 
         problems, but indicated that claimant might develop such in the 
 
         future because of marked spurring of the foramina.  He reported 
 
         claimant as having scoliosis and increased kyphosis.  The doctor 
 
         indicated that claimant had good strength in his hand, although 
 
         he may have a bit of thenar atrophy on the right.  The doctor 
 
         opined that claimant probably developed carpal tunnel syndrome 
 
         from the repetitive work he was doing and that the carpal tunnel 
 
         releases appeared to have been successful.  He opined that 
 
         claimant was entitled to two- to three-percent permanent partial 
 
         impairment to his upper extremities as a result of his carpal 
 
         tunnel releases.  He indicates' claimant's hands did not look 
 
         swollen, that his joints looked okay and that his range of motion 
 
         was good.  The doctor opined that claimantOs neck condition did 
 
         not appear to be related to claimant's work, but was the result 
 
         of an old, long-standing injury which claimant may or may  not 
 
         remember.  The doctor indicated that claimant's upholstery work 
 
         was not harder than his work at Farmland and may have been the 
 
         precipitating cause [of claimant's neck condition] before 
 
         claimant ever worked for Farmland.
 
         
 
              In March, 1987, claimant's counsel referred claimant to 
 
         Horst Blume, M.D., a neurosurgeon.  Dr. Blume agreed that 
 
         claimant's permanent partial impairment should be 20% of the 
 
         right hand and 15% of the left hand per Dr. Thompson.  The doctor 
 
         opined, based upon information in the claimant's history and 
 
         medical reports as well as his own examination, that claimant's 
 
         bony spur formation as well as his degenerative disc disease 
 
         developed during claimant's work at Farmland Foods and that 
 
         irritation of the rami dorsalis of the posterior nerve roots of 
 
         the intervertebral joints of the mia lower cervical spine on the 
 
         right, with suspicion of intermittent lower cervical nerve root 
 
         irritation, was an aggravation of a preexisting condition.  He 
 
         reported that claimant had shoulder and arm pain as well as 
 
         previously reported neck pain.  He opined that claimantOs 
 
         permanent partial impairment was 10% of the body as a whole as a 
 
         result of his cervical spine condition.  Dr. Blume advises that 
 
         claimant have a myelogram, and CT scan before "proper treatment" 
 
         was initiated.  Dr. Blume's charges were as follows:
 
         
 
              Comprehensive office visit of March 16, 1987   $150.00
 
              EMG of March 17, [sic] 1987                     190.00
 
              Office visit of April 1, 1987                    50.00
 
         
 
         On March 16, 1987, claimant was self-employed in his upholstery 
 
         shop and was not working elsewhere.
 
         
 
              Claimant reported that, at times, he limped at work as a 
 
         result of a dull, aching pain in his left hip.  He reported that 
 
         he took up to six aspirins per day for that condition.  Claimant 
 
         last treated for neck pain in February, 1986 with Dr. Soll.
 
         
 
              Claimant initially testified that he was terminated on June 
 
         9, 1986 after he had had too many doctor visits scheduled.  He 
 
         later stated that the plant supervisor indicated his termination 
 
         resulted from claimant's failure to seek other jobs in the 
 

 
         
 
         
 
         
 
         KOLLN V. FARMLAND FOODS, INC.
 
         Page   5
 
         
 
         
 
         factory after Dr. Thompson had recommended claimant not continue 
 
         working in his present job.  Claimant reported that he lacked the 
 
         seniority for other jobs and that the union bidding system in 
 
         effect prevented the employer from assigning him to jobs within 
 
         Dr. Thompson's restrictions.
 
         
 
              Claimant reported that he has not found other employment 
 
         since his June 9, 1986 termination.  He has continued in his 
 
         upholstery business which he characterized as part-time.  
 
         Claimant agreed that, from November, 1987 through Christmas, he 
 
         had an increase in that business.  He characterized January and 
 
         February as slow months in the upholstery business.  Claimant 
 
         agreed that he is under grand jury indictment for selling drugs.
 
         
 
              Claimant testified that he continues to have loss of finger 
 
         and hand dexterity with a decrease in strength in his arms and 
 
         wrists.  He reported that his neck is stiff with limited range of 
 
         motion in cold weather.
 
         
 
              Claimant agreed he had had a motorcycle accident in July, 
 
         1983.  He was bounced off his motorcycle and thrown over the hood 
 
         of a car.  Claimant stated the injury was primarily to his right 
 
         lower calf with some right hip pain.  Claimant is not claiming a 
 
         hip injury.  Claimant could not recall having had upper back and 
 
         shoulder blade tenderness as reported in an outpatient record of 
 
         July 14, 1983.  Claimant denied having been involved in auto 
 
         accidents when questioned as to such by Dr. Mason on July 19, 
 
         1984 and by Dr. Dougherty on October 28, 1986.  Claimant stated 
 
         it was possible he had had finger swelling and splinting per Dr. 
 
         Soll in March, 1984.  He indicated it was also possible that his 
 
         right wrist complaints of October, 1984 were similar to the 
 
         problems of March, 1984.
 
         
 
              On July 19, 1984, Dr. Mason reported that claimant was seen 
 
         as a result of a sprained neck which occurred while working on 
 
         July 13, 1984.  On October 8, 1984, Dr. Soll placed claimant on 
 
         anti-inflammatories for one week for strain of his right forearm 
 
         tendons.  On November 14, 1984, Dr. Mason diagnosed bilateral 
 
         carpal tunnel syndrome.  On January 11, 1985, Dr. Green reported 
 
         claimant's account of his accident as repetitive flexion and 
 
         extension of the wrist causing bilateral carpal tunnel syndrome.
 
         
 
              On August 25, 1987, Edward M. Schima, M.D., a 
 
         board-certified neurologist, reported that, on examination of 
 
         August 4, 1987, claimant did not have objective weakness or 
 
         reflex change.  His complaints were entirely subjective.  He 
 
         suspected that claimant's carpal tunnel syndrome was related to 
 
         repetitive work at Farmland Foods, but that claimant's neck 
 
         problem was a preexisting condition.  The doctor estimated 
 
         claimant's permanent "disability" as two to three percent of the 
 
         hands and his cervical [apparently permanent disability] at five 
 
         percent.  The doctor reported that claimant may require further 
 
         study including a CT scan of the cervical spine to help delineate 
 
         the extent of neck problems.
 
         
 
              In his deposition of January 11, 1988, Dr. Schima opined 
 
         that claimant's upholstery work may have contributed to his 
 
         carpal tunnel, but [had not likely contributed] to claimantOs 
 
         other conditions.  The doctor reported that getting older is one 
 

 
         
 
         
 
         
 
         KOLLN V. FARMLAND FOODS, INC.
 
         Page   6
 
         
 
         
 
         cause of spur formation in the cervical area, but stated that 
 
         trauma can also cause or accelerate the condition.  He opined 
 
         that there could be multiple causes for claimantOs neck pain and 
 
         that it was possible his job caused the pain.
 
         
 
              Claimant testified that the upholstery business involves 
 
         keeping books, doing orders and operating a heavy-duty sewing 
 
         machine, a buttonholer and a foam shredder.  Claimant advertises 
 
         his upholstery business in the telephone directory serving 
 
         Charter Oak, Denison and Dow City, Iowa.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is whether or not claimant received an 
 
         injury which arose out of and in the course of his employment.  
 
         In his petition, claimant alleges an injury date of November 14, 
 
         1984 with injury resulting from repetitious use of both hands.  
 
         The Iowa Supreme Court upheld the theory of cumulative trauma as 
 
         appropriate in factually appropriate workers' compensation claims 
 
         in McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985).  
 
         As claimant alleges a cumulative injury, the subissue of causal 
 
         connection becomes intertwined with the broader issue of whether 
 
         claimant received an injury which arose out of and in the course 
 
         of his employment.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on July 13, 1984, November 14, 
 
         1984 and January 20, 1986 which arose out of and in the course of 
 
         employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
         (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 
 
         154 N.W.2d 128  (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 65.3(l).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al.  Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it.O  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 
 
         N.W.2d 283 (Iowa 1971), Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 (1967).
 

 
         
 
         
 
         
 
         KOLLN V. FARMLAND FOODS, INC.
 
         Page   7
 
         
 
         
 
         
 
               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 
 
              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 
 
     
 
         
 
         
 
         
 
         
 
         KOLLN V. FARMLAND FOODS, INC.
 
         Page   8
 
         
 
         
 
              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 injuries cited above are causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. 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).
 
         
 
              At hearing, claimant testified that work processes in which 
 
         he was involved on or about November 14, 1984 consisted of 
 
         repetitive hand movements during an eight-hour day and that, 
 
         during this time, he experienced a swelling in his hands and loss 
 
         of finger dexterity.  Dr. Soll apparently prescribed 
 
         acetametaphine and hand splints.  Dr. Green conducted EMG studies 
 
         and, on January 11, 1985, noted an impression that claimant had 
 
         bilateral carpal tunnel syndrome.  Carpal tunnel releases were 
 
         subsequently performed on the right on February 7, 1985 and on 
 
         the left on March 7, 1985.  Dr. Thompson, who examined claimant 
 
         in early 1986, advised claimant to work in a warmer environment 
 
         in a job requiring less speed and repetition.  That advice 
 
         suggests that Dr. Thompson believed there was a relationship 
 
         between claimantOs job and his hand condition.  Dr. Dougherty 
 
         expressly opined that claimant's carpal tunnel syndrome was a 
 
         function of his repetitive work at Farmstead Foods.  On January 
 
         11, 1985, Dr. Green indicated that, per claimant's self-report, 
 
         repetitive flexion and extension of his wrists had produced 
 
         carpal.tunnel syndrome.  Dr. Schima suspected that claimant's 
 
         carpal tunnel syndrome related to his repetitive work for 
 
         Farmstead, although claimant's upholstery work may have 
 
         contributed.  All of the above demonstrates that claimant's 
 
         carpal tunnel syndrome was an injury which arose out of and in 
 
         the course of his employment with Farmstead Foods and that such 
 
         injury and subsequent surgery has produced claimant's claimed 
 
         disability to his hands.  The parties have stipulated that 
 
         claimant had been paid healing period benefits of $2,373.10.  
 
         There apparently is no claim for further healing period benefits. 
 

 
         
 
         
 
         
 
         KOLLN V. FARMLAND FOODS, INC.
 
         Page   9
 
         
 
         
 
          The parties further stipulated that claimant has already 
 
         received permanent partial disability benefits at the appropriate 
 
         rate and in the amount of $8,337.15. At the appropriate rate of 
 
         $275.42, such would equal 30.270 weeks of permanent partial 
 
         disability benefits.
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              An injury to the wrist is generally considered to result in 
 
         disability to the hand rather than to the upper extremity, that 
 
         is, the arm.  Elam v. Midland Manufacturing, II Iowa Industrial 
 
         Commissioner Report, 141 (App. Decn. 1981).
 
         
 
              Section 85.34(2) compensates for various enumerated injuries 
 
         as follows:
 
         
 
              1.  For the loss of a hand, weekly compensation during one 
 
              hundred ninety weeks.
 
         
 
              m.  The loss of two-thirds of that part of an arm between 
 
              the shoulder joint and the elbow joint shall equal the loss 
 
              of an arm and the compensation therefor shall be weekly 
 
              compensation during two hundred fifty weeks.
 
         
 
             ......
 
         
 
              s.  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 he may be entitled to 
 
              benefits under subsection 3.
 
         
 
              Webster's Ninth New Collegiate Dictionary, defines an 
 
         accident as an unforeseen and unplanned event and as an 
 
         unexpected happening causing loss or injury which is not due to 
 
         any fault or misconduct on the part of the person injured, but 
 
         for which legal relief may be sought.
 
         
 
              In cases of doubt as to workers' compensation cases, the 
 
         court must construe statutes liberally with a view to extending 
 
         aid to every employee who can be fairly brought within them. 
 
         Usgaard v. Saver Crest Golf Club, 127 N.W.2d 636 (Iowa 1964).
 
         
 
              Initially we are concerned with the situs of claimants 
 
         scheduled injury.  The greater weight of medical references are 
 
         to the hand and to impairments in the fingers, wrist or hand and 
 

 
         
 
         
 
         
 
         KOLLN V. FARMLAND FOODS, INC.
 
         Page  10
 
         
 
         
 
         not to the upper extremity or arm.  That finding suggests that 
 
         claimant's injury is properly located in the wrist or hand 
 
         region.  We next must consider whether claimant's injury is 
 
         properly compensable under section 85.34(2)(1) or section 
 
         85.34(2)(s).  As noted above, on January 11, 1985, Dr. Green's 
 
         impression was of bilateral carpal tunnel syndrome.  Claimant's 
 
         surgeries were performed within four weeks of each other.  Past 
 
         experience with carpal tunnel injuries has led the undersigned to 
 
         believe that it is common to schedule bilateral releases 
 
         sequentially, although within a short time frame, in order to 
 
         avoid total disablement of both hands simultaneously on the part 
 
         of the injured party.  The overall sequence of claimant's 
 
         complaints suggests that his conditions in both hands developed 
 
         simultaneously and not sequentially.  The fact that surgeries 
 
         were scheduled within tour weeks of each other also suggests 
 
         such.  We believe that the sequential scheduling of surgeries in 
 
         such close proximity is not sufficient to remove claimant's claim 
 
         from the additional benefits possible under section 85.34(2)(s) 
 
         where the medical evidence as a whole suggests that claimant's 
 
         condition was a bilateral injury resulting from repetitive, 
 
         work-related trauma.  (As set forth above, an accident need not 
 
         be one happening.  It is the unforeseeableness and the absence of 
 
         fault or misconduct on the part of the injured person which is 
 
         commonly understood to produce an accidental happening.)
 
         
 
              We finally consider claimant's actual disability entitlement 
 
         on account of his bilateral carpal tunnel syndrome.  In February, 
 
         1986, Dr. Thompson rated claimant's permanent partial impairment 
 
         as 15% of the right hand and 20% of the left hand.  Dr. Thompson 
 
         then noted it was likely that claimant would have a marked 
 
         improvement in his hand condition with a change in his 
 
         environment and a decrease in repetitive movements.  Dr. Blume, 
 
         who evaluated claimant during and after March, 1987, agreed with 
 
         Dr. Thompson.  Dr. Dougherty saw claimant in October, 1986 and 
 
         then reported that claimant had a two- to three-percent 
 
         impairment of his upper extremities.  He indicated that 
 
         claimant's hands did not look swollen, that his joints were okay 
 
         and that claimant had good range of motion.  Dr. Schima evaluated 
 
         claimant on August 25, 1987. he then stated that claimantOs 
 
         impairment was two to three percent of the hands.  Claimant was 
 
         terminated on June 9, 1986. hence, the Blume, Dougherty and 
 
         Schima evaluations were all subsequent to claimant's termination 
 
         and at a time when claimant had had a change from his environment 
 
         during which he was evaluated by Dr. Thompson.  Dr. Dougherty is 
 
         an orthopedist; Dr. Schima is a neurologist; and, Dr. Blume is a 
 
         neurosurgeon.  Drs.  Dougherty and Schima arrived at independent 
 
         impairment ratings after independent evaluations.  As defendants 
 
         noted in their brief, neither summarily adopted the other's 
 
         evaluation.  We note that that fact also lends credibility to 
 
         their evaluations.  We note that it is of little significance 
 
         whether we adopt Dr. Dougherty's or Dr. SchimaOs impairment 
 
         ratings, even though Dr. Dougherty references impairment to the 
 
         upper extremity and Dr. Schima references impairment to the hand.  
 
         Two percent of the hand, under the AMA guides, is equal to two 
 
         percent of the upper extremity.  Three percent of the hand, under 
 
         the AMA guides, is equal to three percent of the upper extremity.  
 
         We have already decided that, under Iowa law and the facts of 
 
         this situation, claimant's impairment is to the hand, but must be 
 
         evaluated under section 65.34(2)(s).  When the impairments are 
 

 
         
 
         
 
         
 
         KOLLN V. FARMLAND FOODS, INC.
 
         Page  11
 
         
 
         
 
         construed in the light most favorable to claimant, it is found 
 
         that claimant, at best, has an impairment of three percent of 
 
         each hand.  As noted, three percent of a hand equals three 
 
         percent of the upper extremity and, under the AMA guides, three 
 
         percent of the upper extremity equals two percent of the body as 
 
         a whole.  Under the AMA guides'combined values charts, two 
 
         percent of the body as a whole, when combined with another two 
 
         percent of the body as a whole, equals a four percent body as a 
 
         whole permanent partial impairment.  A four percent body as a 
 
         whole impairment equals 20 weeks of benefits under section 
 
         85.34(2)(s).  Claimant has already received substantially greater 
 
         than that amount of benefits on account of his November, 1984 
 
         injury.  For that reason, claimant is not entitled to further 
 
         benefits in this proceeding.
 
         
 
              We next consider the questions raised by claimant's alleged 
 
         injuries of July 13, 1984 and January 20, 1986.
 
         
 
              Initially, we note that the law as to the issues of arising 
 
         out of and in the course of and as to causal relationship between 
 
         any claimed injury and any alleged disability are as set forth 
 
         above in regard to claimant's carpal tunnel syndrome with the 
 
         exception of the following:
 
         
 
              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).
 
         
 
              An expert's opinion based on an incomplete history is not 
 
         necessarily binding on the commissioner, but must be weighed with 
 
         other facts and circumstances.  Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 360, 154 N.W.2d 128, 133 (1967).
 
         
 
              Claimant alleges a work incident on July 13, 1984 when he 
 
         experienced neck stiffness and pain and had cold air blowing on 
 
         his neck.  Claimant apparently left work that day.  It is unclear 
 
         whether claimant left voluntarily or left as a result of a 
 
         suspension for throwing meat.  Nurse's notes do reflect the neck 
 
         stiffness of that date and that claimant refused to see a doctor 
 
         as of that date.  Claimant voluntarily saw Dr. Mason, apparently 
 
         his own physician, on July 19, 1984.  Dr. Mason reported a neck 
 
         sprain of July 13, 1984 while at work.  The above suggests that 
 
         claimant did experience neck pain at work on July 13, 1984.  The 
 
         question remains as to whether such related to work or as to 
 
         whether such resulted in an injury as contemplated under our 
 
         workers' compensation act, however.  Claimant further testified 
 
         that, on January 20, 1986, he experienced left arm and shoulder 
 
         numbness while working in either scooping or packing off.  
 
         Claimant was apparently off work again at that time, but as 
 
         defendants point out in their brief, it is unclear as to whether 
 
         he was off for flu or for neck symptoms.  Hence, again, while 
 
         claimant may well have experienced numbness as of that date, the 
 
         question remains as to whether his experience at work was an 
 

 
         
 
         
 
         
 
         KOLLN V. FARMLAND FOODS, INC.
 
         Page  12
 
         
 
         
 
         injury within our act.  To ascertain such, we must look at the 
 
         medical causation questions.  Dr. Blume, who examined claimant in 
 
         March, 1987, relates claimantOs degenerative disc disease and 
 
         spur formation to claimant's work at Farmstead and reports that 
 
         there is an irritation of the nerve roots which is an aggravation 
 
         of a preexisting condition.  We find Dr. Blume's opinion 
 
         testimony confusing at best.  Dr. Schima, who examined claimant 
 
         in August, 1987, opined that his neck problems were a preexisting 
 
         condition and indicated that there could be multiple causes for 
 
         neck pain, including aging and trauma.  He did state that 
 
         claimantOs job was a possible cause of neck pain.  Dr. Frion, who 
 
         examined claimant early on, found that claimant's neurological 
 
         examination, with respect to his upper extremities, was within 
 
         normal limits and that claimant had relatively free range of 
 
         motion of the cervical spine.  The doctor related claimant's pain 
 
         to spur formations seen on radiographs.  He described claimant's 
 
         condition as an arthritic process which was likely self-limiting 
 
         with no current evidence of a need for surgical intervention.  
 
         Dr. Frion's remarks suggest a long-standing condition such as Dr. 
 
         Schima opined.  Dr. Dougherty, who examined claimant in October, 
 
         1986, opined that claimant's neck condition did not appear to be 
 
         work-related.  He reported that the condition likely resulted 
 
         from an old injury which claimant may or may not remember.  Dr. 
 
         Dougherty further opined that claimant's extensive work as an 
 
         upholsterer may have been a precipitating cause of the neck 
 
         condition before claimant began work at Farmstead.  We note that 
 
         claimant did have a motorcycle accident in July, 1983 in which he 
 
         was thrown from his motorcycle and over the hood of a car. 
 

 
         
 
         
 
         
 
         KOLLN V. FARMLAND FOODS, INC.
 
         Page  13
 
         
 
         
 
         Claimant denied having had any motor vehicle accidents to both 
 
         Drs.  Dougherty and Mason.  We find claimant's express denial of 
 
         any motor vehicle accidents troubling.  Coupled with claimant's 
 
         overall demeanor at hearing, it leaves us to believe that 
 
         claimant was not an altogether credible witness.  We adopt the 
 
         opinions of Drs.  Dougherty and Schima that claimant's condition 
 
         was preexisting as such would be consistent with claimant's 
 
         previous motor vehicle accident, the degenerative nature of his 
 
         disease and the work in which claimant was engaged prior to his 
 
         Farmstead employment.  We find that, while claimant may well have 
 
         had neck pain on July 13, 1984 and arm and shoulder numbness on 
 
         January 20, 1986, both at work, neither condition was so related 
 
         to work as to suggest that the conditions were a work injury 
 
         which arose out of and in the course of claimant's employment.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant was involved in work on or about November 14, 1984 
 
         which involved repetitive hand movements during an eight-hour 
 
         work day.
 
         
 
              Claimant experienced swelling in his hands and a loss of 
 
         dexterity.
 
         
 
              Claimant was treated medically with acetametaphine and hand 
 
         splints.
 
         
 
              Electromyelographic studies indicated claimant had bilateral 
 
         carpal tunnel syndrome.
 
         
 
              That condition was diagnosed on January 11, 1985.
 
         
 
              Carpal tunnel releases were performed on the right and the 
 
         left on February 7, 1985 and March 7, 1985, respectively.
 
         
 
              Claimant had past experience, both full-time and part-time 
 
         in his own upholstery business.
 
         
 
              Upholstery work also involves hand motion.
 
         
 
              Repetitive work at Farmstead Foods was a substantial factor 
 
         in the development of claimant's bilateral carpal tunnel 
 
         syndrome.
 
         
 
              Claimant's medical symptoms and impairment were confined to 
 
         the hand and wrist.
 
         
 
              Claimant's carpal tunnel syndrome was a single, unforeseen 
 
         occurrence or event.
 
         
 
              Claimant's hand condition, as of February, 1986, was likely 
 
         to markedly improve with a change in claimant's environment.
 
         
 
              Claimant was terminated from Farmstead Foods on June 9, 
 
         1986.
 
         
 
              Dr. Dougherty examined claimant in October, 1986; Dr. Blume 
 

 
         
 
         
 
         
 
         KOLLN V. FARMLAND FOODS, INC.
 
         Page  14
 
         
 
         
 
         examined claimant in March, 1987; and, Dr. Schima examined 
 
         claimant in August, 1987.
 
         
 
              Upon examination by Dr. Dougherty, claimant's hands were not 
 
         swollen and he had good range of motion.
 
         
 
              Dr. SchimaOs examination was most recent and most reflective 
 
         of claimant's current condition.
 
         
 
              ClaimantOs impairment is approximately three percent of each 
 
         hand.
 
         
 
              Three percent of each hand equals three percent of the upper 
 
         extremity and equals two percent impairment of the body as a 
 
         whole.
 
         
 
              Two percent impairment of the body as a whole combined with 
 
         two percent impairment of the body as a whole equals four percent 
 
         impairment of the body as a whole under the AMA Guides to the 
 
         Evaluation of Permanent Impairment.
 
         
 
              Claimant experienced neck stiffness on July 13, 1984 while 
 
         at work while cold air was blowing across his neck.
 
         
 
              Claimant experienced left arm and shoulder numbness while 
 
         working on January 20, 1986.
 
         
 
              Claimant had degenerative disc disease with bony spurring in 
 
         the cervical area.
 
         
 
              Claimant had worked for over a decade, either part-time or 
 
         full-time, as either an upholsterer's helper or in his upholstery 
 
         business.
 
         
 
               Claimant had had a motorcycle accident in July, 1983 in 
 
         which claimant was thrown from his motorcycle and over the hood 
 
         of a car.
 
         
 
              Claimant did not relate the accident to medical examiners 
 
         and expressly denies having had any motor vehicle accidents to 
 
         Drs.  Dougherty and Mason.
 
         
 
              Claimant lacked credibility.
 
         
 
              Claimant's neck problems and any cervical condition were 
 
         preexisting conditions, not related to work at Farmstead.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has shown an injury which arose out of and in the 
 
         course of his employment on November 14, 1984.
 
         
 
              Claimant has shown a causal relationship to that injury and 
 
         his claimed disability as a result of his bilateral carpal tunnel 
 
         syndrome.
 
         
 
              Claimant is entitled to compensation for his bilateral 
 

 
         
 
         
 
         
 
         KOLLN V. FARMLAND FOODS, INC.
 
         Page  15
 
         
 
         
 
         carpal tunnel syndrome under section 85.34(2)(s).
 
         
 
              Claimant is entitled to permanent partial disability on 
 
         account of his bilateral carpal tunnel syndrome equal to four 
 
         percent of the body as a whole or 20 weeks of permanent partial 
 
         disability benefits.
 
         
 
              Defendants are entitled to credit for benefits previously 
 
         paid.
 
         
 
              Claimant has not established an injury which arose out of 
 
         and in the course of his employment on July 13, 1984.
 
         
 
              Claimant has not established an injury which arose out of 
 
         and in the course of his employment on January 20, 1986.
 
         
 
              Claimant has not establishes a causal connection between the 
 
         claimed work incidents of July 13, 1984 and January 20, 1986 and 
 
         any claimed disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT is ORDERED:
 
         
 
              Defendants pay claimant permanent partial disability 
 
         benefits for twenty (20) weeks at the rate of two hundred 
 
         seventy-four and 42/100 dollars ($274.42) on account of his 
 
         November 14, 1984 injury.  Defendants take credit for benefits 
 
         previously paid, which credited benefits are in excess of the 
 
         twenty (20) weeks to which claimant is entitles.
 
         
 
              Claimant take nothing from these proceedings relative to his 
 
         claimed injuries of July 13, 1984 and January 20, 1986.
 
         
 
              Claimant pay costs of these proceedings pursuant to Division 
 
         of industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 27th day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          HELENJEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies TO:
 
         
 
         Mr. Harry H. Smith
 
         Mr. LeRoy J. Sturgeon
 
         Attorneys at Law
 
         632-640 Badgerow Building
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Ms. Judith Ann Higgs
 
         Mr. Thomas M. Plaza
 
         Attorneys at Law
 

 
         
 
         
 
         
 
         KOLLN V. FARMLAND FOODS, INC.
 
         Page  16
 
         
 
         
 
         200 Home Federal Building
 
         P.O. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108.50, 1803.1, 2209
 
                                                 Filed June 27, 1988
 
                                                 HELENJEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         TERRY L. KOLLN,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                        File Nos. 782163
 
         FARMLAND FOODS, INC.,                                    816127
 
                                                                  816128
 
              Employer,
 
                                                     A R B I T R A T I 0 N
 
         and
 
                                                      D E C I S I 0 N
 
         AETNA CASUALTY & SURETY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.50, 1803.1, 2209
 
         
 
              Claimant did not show cervical complaints were related to 
 
         two alleged work incidents or to cumulative trauma at work.  
 
         Claimant had had prior work experience which could have produced 
 
         degenerative disc disease as well as a motorcycle accident which 
 
         he had failed to report to medical practitioners.  Physicians 
 
         opined that the condition preexisted employment.  Claimant did 
 
         not show entitlement to greater permanent partial disability 
 
         benefits that defendants had already paid for bilateral carpal 
 
         tunnel syndrome.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD L. ASMUS,
 
         
 
              Claimant,
 
                                                  File No. 782289
 
         vs.
 
         
 
         WAUKESHA ENGINE,                      A R B I T R A T I 0 N
 
         
 
              Employer,                           D E C I S I 0 N
 
         
 
         and
 
         
 
         UNDERWRITERS ADJUSTING CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Richard 
 
         Asmus, claimant, against Waukesha Engine, employer, and 
 
         Underwriters Adjusting Co., insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an alleged injury of November 30, 1984.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner 
 
         July 15, 1988.  The record was considered fully submitted at the 
 
         close of the hearing.  The record in this case consists of the 
 
         testimony of claimant and joint exhibits 1 through 20, inclusive.  
 
         Claimant's objection to defendants' exhibit A is sustained.  
 
         Defendants' exhibit A is not received into evidence and was not 
 
         considered in making this decision.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved July 15, 1988, the following issues are considered for 
 
         resolution:
 
         
 
              1.  Whether claimant sustained an injury which arose out of 
 
         and in the course of his employment on November 30, 1984;
 
         
 
              2.  Whether claimant's alleged injury is the cause of the 
 
         disability on which claimant now bases his claim;
 
         
 
              3.  Claimant's entitlement, if any, to weekly compensation 
 
         benefits; and,
 
              4.  ClaimantOs entitlement,if any, to benefits provided by 
 
         Iowa Code section 85.27.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant testified that on November 30, 1984, while working 
 
         on a screw machine he bent over to pick up a steel bar weighing 
 

 
         
 
         
 
         
 
         ASMUS V WAUKESHA ENGINE
 
         PAGE   2
 
         
 
         
 
         an estimated 98 pounds and about twenty minutes later felt pain 
 
         in his lower back.  Claimant recalled he advised his foreman of 
 
         the pain and then went home.  Claimant testified that although he 
 
         reported to work the following day, he did not punch in but went 
 
         to his foreman who made an appointment for claimant with R.W. 
 
         Droste, D.C.  Claimant stated he returned to work within two days 
 
         and continued to see Dr. Droste "for adjustments for about six 
 
         months until he began seeing William R. Meyer, M.D., on request 
 
         of defendants.  Claimant testified he treated with Dr. Meyer for 
 
         seven or eight months "as needed" and that he continued working 
 
         at his regular job although he was "awful careful how" he 
 
         lifted.
 
         
 
              Claimant stated that in April 1986, he was referred to 
 
         Charlton Barnes, M.D., under whose care claimant underwent a CT 
 
         scan and myelogram.  Claimant stated that in July 1986, he saw 
 
         Stephen C. Rasmus, M.D., who in consultation with Dr. Barnes, 
 
         took claimant off work from August 13 through September 18, 1986.  
 
         Claimant testified that when he returned to work, he returned to 
 
         his regular job which he was able to perform.
 
         
 
              Claimant testified he voluntarily bid into defendant 
 
         employer's rocker arms department where he is not required to 
 
         lift as much as when he worked on the screw machine but where he 
 
         is paid $.20 less per hour.  Claimant stated he continues to wear 
 
         a corset to work and sees Dr. Barnes about one time a month.  
 
         Claimant asserted he had no problems with his back before 
 
         November 1984 outside of a 1982 injury when he backed into a vise 
 
         injuring his lower back.  Claimant explained he missed no time 
 
         from work as a result of this incident.  Claimant acknowledged 
 
         that in November 1984, he was involved in an automobile accident 
 
         wherein he injured his right ankle but not his back.  Claimant 
 
         described soreness in his back if he did not take his medication 
 
         or wear his corset, being "awful careful" how he lifts and that 
 
         at times he feels a sharp pain which he counteracts by slowing 
 
         up.
 
         
 
              On cross-examination, claimant acknowledged he is a member 
 
         of the International Association of Machinists and by seniority, 
 
         one of the older employees in the plant whose job is secure and 
 
         he is not subject to layoff.  Claimant admitted that in November 
 
         1984, the same month he alleges an injury at work, he was 
 
         hospitalized after a domestic dispute with his wife.  Claimant 
 
         stated he was "all tanked up" but that he did not injure his back 
 
         as a result of the fight.  Claimant stated he made a claim for 
 
         disability with the Morris Plan for the period he was off work in 
 
         1986.
 
         
 
              The standard form for surgeon's report signed by R.W. 
 
         Droste, D.C., on February 20, 1985, describes claimant's accident 
 
         as "patient bent over to pick up steel bar - hurt low back."  Dr. 
 
         Droste stated at this time that he anticipated no permanent 
 
         defect as a result of the incident and that claimant was able to 
 
         return to regular duty on November 30, 1984.  The workers' 
 
         compensation questionnaire which was apparently filled out by 
 
         claimant when he first saw Dr. Droste states that the injury 
 
         occurred on November 29, 1984 and that claimant felt pain in his 
 
         low back immediately after the incident.  On March 6, 1985, Dr. 
 
         Droste's bookkeeper reported to defendant insurance company that 
 

 
         
 
         
 
         
 
         ASMUS V WAUKESHA ENGINE
 
         PAGE   3
 
         
 
         
 
         claimant "indicated he felt better and choose [sic] to end the 
 
         treatments."
 
         
 
              The only report from William R. Meyer, M.D., contained in 
 
         the record is undated but marked received by defendant insurance 
 
         carrier April 10, 1985.  Dr. Meyer states:
 
         
 
              ...Mr. Asmus apparently strained his back while at work 
 
              on or about 11-30-84 .... Examination showed some 
 
              limitation of motion to both lateral rotation and also 
 
              approximately fifteen degrees flexion and extension.  
 
              However there was no nerve or reflex changes 
 
              what-so-ever and muscle strength to both lower 
 
              extremities has been good.
 
         
 
              ... I ordered an X-ray of his lumbar spine at Mercy 
 
              Hospital on 3-18-85.  The lumbar spine X-ray reveals 
 
              some mild degenerative changes at the third and fourth 
 
              interspaces manifested by some anterior spurring, 
 
              however the intervertebral disc spaces are all well 
 
              preserved.
 
         
 
                   I think Mr. Asmus has a chronic low back strain 
 
              associated with some mild degenerative arthritis ....
 
         
 
         (Joint Exhibit 1)
 
         
 
              The Bluff Medical Center history records, Charlton H. 
 
         Barnes, M.D., show that when claimant was seen April 7, 1986, 
 
         x-rays taken revealed scoliosis and claimant was set up for a 
 
         neurology consultation which was done by Stephen Rasmus, M.D., on 
 
         April 22, 1986.  Dr. Rasmus conducted an EMG procedure and found: 
 
         "Normal right peroneal nerve Conduction.  Normal EMG right lower 
 
         extremity and right paraspinal muscles L3-Sl." (Jt. Ex. 10) A CT 
 
         scan of the lumbar spine done May 31, 1986 showed:
 
         
 
                   The vertebral bodies are intact.  A spinal 
 
              stenotic process is not demonstrated.  The cord 
 
              structures are well defined and are considered to be 
 
              normal.  A finding of a herniated disc was not 
 
              demonstrated with this study.
 
         
 
              Impression:  Normal Lumbar spine, per Ct.
 
         
 
         (Jt. Ex. 12)
 
         
 
              Claimant was hospitalized for a myelogram on June 18, 1986 
 
         which "was not significant."   On July 29, 1986, Dr. Rasmus 
 
         opined:  "I saw Mr. Richard Asmus in follow up on July 28, 1986, 
 
         and reviewed his myelogram and CAT Scan from June.  They looked 
 
         normal to me .... I still think that this most likely is 
 
         muscular." (Jt. Ex. 14) On August 29, 1986, claimant was found to 
 
         be "still having difficulty with his back" and claimant was 
 
         advised to take a month off work.  Subsequent notes record 
 
         improvement in claimant's condition and on September 21, 1987, 
 
         Dr. Barnes stated:
 
         
 
                 This patient came in for a permanent disability 
 
              rating.  The patient states that he was injured first 
 

 
         
 
         
 
         
 
         ASMUS V WAUKESHA ENGINE
 
         PAGE   4
 
         
 
         
 
              when he picked up a piece of steel pipe, and since that 
 
              time he has had episodes of recurrent pain.  He has a 
 
              positive straight leg raising bilaterally, more on the 
 
              right than the left and the low back pain recurs.  
 
              Since he has not had any surgery on it, I think that he 
 
              is justifying a 5% disability rating.
 
         
 
         (Jt. Ex. 18)
 
         
 
              On November 25, 1987, claimant was evaluated by (according 
 
         to the joint exhibit list) a Dr. Colah, of Medical Associates, 
 
         Clinton, Iowa, who stated:
 
         
 
                 Forty year-old male patient presents for evaluation 
 
              of his low back.  The details of his past medical 
 
              records were reviewed and noted.  On inquiry the 
 
              patient notes that about 3 years ago he hurt his low 
 
              back while at work.  At the recommendation of his 
 
              company, he saw Dr. Droste, chiropractor, who I 
 
              understand adjusted his back for about 6 months.  Since 
 
              he continued to be symptomatic, he was then referred to 
 
              Dr. Meyer, his family practitioner who in turn referred 
 
              him to Dr. Barnes.  The details of Dr. Barnes' 
 
              extensive investigations and evaluations were reviewed 
 
              and noted.
 
         
 
                 On inquiry today the patient notes that he is no 
 
              longer able to do things that he was able to do.  
 
              Example: He cannot now roller skate.  He notes 
 
              occasional pain down the back of his right thigh.  On 
 
              physical examination with the patient standing, there 
 
              was no limb length discrepancy.  Both dorsalis pedis 
 
              are palpable.  Good chest expansion.  Movements of his 
 
              low back are full range and painfree.  SLR's are free.  
 
              No neurological deficit detected.
 
         
 
                 CLINICAL IMPRESSION:  Normal low back examination.  
 
              I have no positive physical findings on the basis of my 
 
              clinical examination.
 
         
 
                 I have advised the patient that he may continue with 
 
              full work and all activities at this time.
 
         
 
         (Ex. 19)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that his injury arose out of and in the course of his employment. 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure v. Union, et al., Counties, 188 
 

 
         
 
         
 
         
 
         ASMUS V WAUKESHA ENGINE
 
         PAGE   5
 
         
 
         
 
         N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, 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 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.
 
         
 
              As cited above in Crowe, there must be a causal relationship 
 
         between the employment and the alleged injury.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 30, 1984 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v.  Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              Expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection.  Burt, 247 
 

 
         
 
         
 
         
 
         ASMUS V WAUKESHA ENGINE
 
         PAGE   6
 
         
 
         
 
         Iowa 691, 73 N.W.2d 732.  The opinion of experts need not be 
 
         couched indefinite, 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, 261 Iowa 352, 154 N.W.2d 128.
 
         
 
              As the question of causal connection is essentially within 
 
         the domain of expert testimony, review is first given to the 
 
         medical records submitted.  It does not go without note that the 
 
         record is conspicuously void of medical evidence from November 
 
         30, 1984, the time of claimant's alleged injury, to February 20, 
 
         1985, when Dr. Droste filed the standard form for surgeon's 
 
         report.  The only document which appears to have been filled out 
 
         any earlier is the workers' compensation questionnaire wherein 
 
         claimant alleges he was injured on November 29, 1984 and that he 
 
         felt pain in his low back immediately following his actions of 
 
         picking tip the steel bar.  Both of these statements are contrary 
 
         to claimant's testimony at hearing.  Claimant testified he was 
 
         injured on November 30, 1984 and that it was approximately twenty 
 
         minutes later, not immediately, that he felt pain in his back.  
 
         While both of these discrepancies may seem minor, they do call 
 
         into question claimant's credibility and the accuracy of the 
 
         medical history as given to his physicians.  This is particularly 
 
         true in light of the sparse medical evidence, by way of 
 

 
         
 
         
 
         
 
         ASMUS V WAUKESHA ENGINE
 
         PAGE   7
 
         
 
         
 
         histories, contained in the record.  It also calls into question 
 
         whether claimant was merely at work when his alleged symptoms 
 
         began or whether his work caused the symptoms.
 
         
 
              It is not disputed that Doctors Barnes, Rasmus and Meyer 
 
         refer to a straining incident at work.  However, none seem 
 
         inclined to truly relate claimant's problems to such a straining 
 
         incident.  Dr. Meyer finds only "mild degenerative changes" of 
 
         the lumbar spine and chronic low back strain associated with 
 
         degenerated arthritis.  Dr. Rasmus reviewed myelogram and CT 
 
         scans and found them to be normal.  Dr. Barnes finds chronic low 
 
         back strain secondary to picking up a steel bar in 1985.  This 
 
         opinion, however, again calls into question the accuracy of the 
 
         medical history given by claimant since he is telling us that the 
 
         straining incident occurred in 1985.  In addition, none of these 
 
         physicians seem to be aware of claimant's 1982 incident, of the 
 
         automobile accident in November 1984 or of the hospitalization 
 
         after a domestic dispute in November 1984.  This is true at least 
 
         insofar as medical records and office notes are concerned.  
 
         Claimant has clearly failed to present evidence of a complete and 
 
         accurate history.  Finally, Dr. Colah finds no "positive physical 
 
         findings."  The undersigned agrees with Dr. Colah who appears to 
 
         be the last physician to see claimant prior to hearing and to 
 
         file a report on the examination.  Claimant, by observation of 
 
         his demeanor, was not a credible witness.  The undersigned can 
 
         find no evidence of injury, as defined in Almquist, supra, that 
 
         arose out of or in the course of claimant's employment or that it 
 
         is causally connected to his employment.  Therefore, claimant has 
 
         failed to meet his burden of proof and shall take nothing further 
 
         from these proceedings.  As a consequence, the other issues 
 
         presented for resolution need not be addressed.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant alleged he sustained an injury on November 30, 
 
         1984 which arose out of and in the course of his employment.
 
         
 
              2.  Claimant reported that after picking up a steel bar 
 
         weighing approximately 98 pounds he perceived pain.
 
         
 
              3.  Except for missing two days work, claimant was able to 
 
         continue working at his regular job.
 
         
 
              4.  Medical providers found no evidence of injury outside of 
 
         strain associated with degenerative changes.
 
         
 
              5.  Claimant was not a credible witness.
 
         
 
              6.  Claimant did not sustain an injury which arose out of 
 
         and in the course of his employment.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 

 
         
 
         
 
         
 
         ASMUS V WAUKESHA ENGINE
 
         PAGE   8
 
         
 
         
 
              Claimant failed to meet his burden that he sustained an 
 
         injury which arose out of and in the course of his employment.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED;
 
         
 
              Claimant shall take nothing from these proceedings.
 
         
 
              Costs are assessed against claimant pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 20th day of December, 1988.
 
         
 
         
 
         
 
         
 
                                       DEBORAH A. DUBIK
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Nick J. Avgerinos
 
         Attorney at Law
 
         101 N. Wacker Dr
 
         Suite 740
 
         Chicago, IL 60606
 
         
 
         Mr. Craig Levien
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         Davenport, IA 52801
 
 
 
 
            
 
 
 
 
 
 
 
 
 
                                                  1100
 
                                                  Filed December 20, 1988
 
                                                  Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RICHARD L. ASMUS,
 
         
 
              Claimant,
 
                                                  File No. 782289
 
         vs.
 
         
 
         WAUKESHA ENGINE,                      A R B I T R A T I 0 N
 
         
 
              Employer,                           D E C I S I O N
 
         
 
         and
 
         
 
         UNDERWRITERS ADJUSTING CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1100
 
         
 
              Claimant failed to show he sustained an injury which arose 
 
         out of and in the course of his employment where his testimony 
 
         was inconsistent and medical providers found no evidence of 
 
         injury outside of degenerative changes.
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         KEITH L. STOLP,
 
              Claimant,
 
         VS.                                          File No. 782410 
 
         GREEN FIELD TRANSPORT                          A P P E A L 
 
         COMPANY, INC.,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         CARRIERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying 
 
         permanent partial disability benefits but awarding medical 
 
         benefits as the result of an alleged injury on December 7, 1984.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding; claimant's exhibits 1 through 15; and 
 
         defendants' exhibits A through G. Both parties filed briefs on 
 
         appeal.  Claimant filed a reply brief.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              1.   What was the condition of Claimant's right eye vision 
 
         immediately prior to December 7, 1984?
 
         
 
              2.   Did Claimant receive a right eye injury arising out of 
 
         and in the course of his employment on December 7, 1984?
 
         
 
              3.  Is there a causal connection between the December 7, 
 
         1984 work injury and the scheduled member disability to 
 
         Claimant's right eye upon which he has based his claim?
 
         
 
         
 
         
 
         STOLP V. GREEN FIELD TRANSPORT COMPANY, INC.
 
         Page 2
 
         
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally set forth 
 
         herein.  Claimant seeks benefits for an injury to his right eye 
 
         on December 7, 1984.  Previously, on April 28, 1971, this agency 
 
         approved a full commutation of workers' compensation benefits for 
 
         100 percent loss of use of claimant's right eye as the result of 
 
         an injury while claimant was working as a mechanic on December 
 
         19, 1969.  Claimant testified that at the time of the 
 
         commutation, he had complete loss of vision in his right eye.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant and his wife both testified that in 1974, 
 
         claimant's vision in his right eye began to improve.  Claimant 
 
         stated that in 1975, he noticed he was able to use his right eye 
 
         in aiming his gun while hunting.  Both claimant and his wife 
 
         testified that the improvement continued over the next several 
 
         years.
 
         
 
              Claimant applied for an Iowa driver's licence in 1979 and 
 
         passed the required eye examination, although claimant 
 
         acknowledged that both eyes were tested at once and it was 
 
         possible to pass the test with only one eye.  Claimant also 
 
         obtained an Illinois driver's license.  Claimant obtained a 
 
         chauffeur's license in 1980 and began work as an over the road 
 
         truck driver.  Claimant acknowledged that it was possible to get 
 
         a chauffeur's license in both Iowa and Illinois with vision in 
 
         only one eye.  Claimant passed a visual examination required by 
 
         the Department of Transportation which was conducted on October 
 
         7, 1980 by Horace M. Don, D.O.
 
         
 
              On May 10, 1983, Yang Ahn, M.D., examined claimant and found 
 
         20/20 vision in the right eye with no evidence of prior injury or 
 
         disease.  However, Dr. Ahn also stated that the eye test involved 
 
         an eye chart and was conducted by a nurse, the form was filled 
 
         out by the nurse, and the eye chart could have been memorized by 
 
         claimant.  Because of this, Dr. Ahn acknowledged that he would 
 
         have no personal knowledge whether claimant had vision in his 
 
         right eye prior to December 7, 1984.  Dr. Ahn also stated he was 
 
         not aware at the 1983 examination that claimant had had an 
 
         earlier eye injury, and that only the reading of the eye chart 
 
         was conducted.  Dr. Ahn stated that although the form does 
 
         indicate that no evidence of injury was found, no visual 
 
         examination of the interior of claimant's eye was conducted.
 
         
 
              Gregg Rude, an Iowa State Trooper, stopped claimant for 
 
         speeding sometime in 1984.  The exact date was not brought out at 
 
         the hearing.  Claimant's motion for rehearing subsequent to the 
 
         arbitration decision sought to establish the date of this 
 
         incident, but the motion was denied as the information could have 
 
         been obtained prior to the original hearing.  Claimant was 
 
         arrested for refusal to sign the citation.  Trooper Rude
 
         
 
         
 
         
 
         STOLP V. GREEN FIELD TRANSPORT COMPANY, INC.
 
         Page 3
 
         
 
         
 
         stated that claimant told him he was blind in one eye, and that 
 
         claimant stated to him that he had been to several doctors for 
 
         his eye.  Trooper Rude contacted the federal Department of 
 
         Transportation in regard to claimant's chauffeur's license but 
 
         the result of that investigation, if any, is unknown.  Claimant 
 
         denied telling Trooper Rude he was blind in one eye, and stated 
 
         that at the time he was stopped by the trooper, he had 100 
 
         percent vision in his right eye.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On December 7, 1984, claimant was involved in a motor 
 
         vehicle accident when his truck slipped off an icy roadway.  
 
         Claimant was treated for bruised ribs at a hospital, but claimant 
 
         stated he was unaware he had injured his right eye in the 
 
         accident and did not report this to the hospital personnel.
 
         
 
              Between December 7, 1984, and January 25, 1985, claimant was 
 
         treated by Dr. Ahn on six occasions.  Dr. Ahn testified that 
 
         claimant made no complaints concerning his vision on any of these 
 
         visits.  Claimant testified that two to three weeks after the 
 
         accident, he began to notice light sensitivity and double vision.  
 
         Another DOT examination was conducted on January 25, 1985, by Dr. 
 
         Ahn, and claimant was found to have 20/100 vision in the right 
 
         eye.  Based on this test, claimant was not issued the necessary 
 
         medical card to work as a truck driver.  Claimant stated that in 
 
         both the 1983 and 1985 eye examination by Dr. Ahn, he was 
 
         required to read an eye chart but no visual examination of his 
 
         eyes was made.
 
         
 
              Claimant was referred to Robert Keller, M.D., an eye 
 
         specialist.  Dr. Keller measured claimant's right eye vision as 
 
         20/100.  Claimant was then referred to James C. Folk, M.D., at 
 
         the University of Iowa Department of Opthalmology.  In March of 
 
         1985, Dr. Folk measured claimant's right eye vision as 20/100, 
 
         and stated, "Certainly this scleral rupture could have occurred 
 
         during the recent truck accident.  This is probably the most 
 
         likely reasoning, however, we cannot be absolutely sure." 
 
         (Claimant's Exhibit 6.)
 
         
 
              In June of 1985, Dr. Folk again measured claimant's right 
 
         eye vision as 20/100, and concluded that it was a "certainty" 
 
         that claimant's loss of vision in his right eye was the result of 
 
         the December 1984 truck accident.  However, Dr. Folk's report 
 
         also stated that: "The patient also had a history of an 
 
         intraocular foreign body in the right eye approximately 20 years 
 
         ago.  This foreign body had been removed with retention of good 
 
         visual acuity in this eye." (Cl. Ex. 11.)
 
         
 
              Dr. Folk stated that the scarring that caused the vision 
 
         loss typically occurs three to four weeks after the trauma, which 
 
         was consistent with claimant's report of the onset of vision 
 
         loss.  Dr. Folk based his conclusion on claimant's history of "19 
 
         years" of 20/20 vision after his original injury and therefore he 
 
         felt that the fact that claimant had 20/20 vision
 
         
 
         
 
         
 
         STOLP V. GREEN FIELD TRANSPORT COMPANY, INC.
 
         Page 4
 
         
 
         
 
         in 1983 was "conclusive" evidence that claimant's present vision 
 
         loss was of recent origin.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant testified that his present vision in his right eye 
 
         was 21/100 or 22/100, which claimant stated is insufficient 
 
         vision to drive a truck.
 
         
 
              The parties stipulated that claimant's rate of weekly 
 
         compensation in the event of an award of benefits would be 
 
         $303.17; claimant is not seeking further healing period or 
 
         temporary total disability benefits; that if claimant has a 
 
         disability, it is a scheduled member disability of the right eye; 
 
         and that claimant has been off work since December 7, 1984 and 
 
         currently has a 100 percent loss of use of the right eye; and 
 
         that the medical bills in the record are reasonable and causally 
 
         connected to claimant's medical condition but the causal 
 
         connection of the bills to the work injury remained in dispute.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 7, 1984 is causally 
 
         related to the disability on which he now bases his claim. Bodish 
 
         v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary. Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist 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. 
 
         Sondaq 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).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant bears the burden of proving that he has suffered an 
 
         injury arising out of and in the course of his employment, and 
 
         that his present disability is causally connected to that injury.  
 
         The deputy's decision did find that an injury arising out of and 
 
         in the course of claimant's employment occurred on December 7, 
 
         1984, and therefore this issue, although stated
 
         
 
         
 
         
 
         STOLP V. GREEN FIELD TRANSPORT COMPANY, INC.
 
         Page  5
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         as an issue on appeal by claimant, will not be addressed.  
 
         Essentially, claimant's issue on appeal is whether the deputy 
 
         properly concluded that claimant had failed to show a causal 
 
         connection between his present right eye condition and his work 
 
         injury of December 7, 1984.
 
         
 
              Claimant's present disability consists of a loss of vision 
 
         in the right eye.  Claimant was previously compensated for 100 
 
         percent loss of vision in his right eye for the 1969 injury.  
 
         Thus, in order to establish entitlement to further benefits for 
 
         the loss of vision in his right eye, claimant bears the burden to 
 
         show that all or part of his present impairment of the right eye 
 
         is causally connected to his work injury of December 7, 1984.
 
         
 
              Claimant relies on the finding in 1983 by Dr. Ahn for the 
 
         corroboration of his testimony that his 1969 100 percent loss of 
 
         use of his right eye improved to 20/20 vision.  However, 
 
         cross-examination revealed that this examination did not involve 
 
         a visual examination of the eye itself.  This is confirmed by the 
 
         notation on the form indicating that there was no evidence of 
 
         injury to the eye, whereas claimant acknowledges that his right 
 
         eye was scarred from the 1969 injury.  In addition, Dr. Ahn 
 
         acknowledged that it was possible for claimant to have memorized 
 
         the eye chart used in determining that he had 20/20 vision in the 
 
         right eye in 1983.  Dr. Ahn also admitted that he could provide 
 
         no personal knowledge of claimant's right eye vision in 1983.  
 
         Dr. Ahn's 1983 examination finding that claimant had 20/20 vision 
 
         in his right eye therefore has little reliability.
 
         
 
              A prior examination by an optometrist, Dr. Don, is also in 
 
         the record.  However, claimant acknowledged that Dr. Don 
 
         conducted an eye chart examination only and did not conduct an 
 
         internal examination.
 
         
 
              Claimant also proffers the testimony of Dr. Folk for the 
 
         proposition that claimant's present right eye condition is 
 
         causally related to his 1984 accident.  However, Dr. Folk's 
 
         statements contain indications that he was less than thoroughly 
 
         familiar with claimant's prior eye injury.  Dr. Folk referred to 
 
         claimant having a prior injury 19 or 20 years earlier, which was 
 
         incorrect.     Dr. Folk based his conclusion on claimant's right 
 
         eye examination result by Dr. Ahn in 1983.  This finding, as 
 
         shown above, is inherently unreliable.  Dr. Folk's opinion on 
 
         causal connection relied on a suspect examination result, and is 
 
         therefore itself unreliable.
 
         
 
              There is a direct conflict of testimony between claimant and 
 
         Trooper Rude.  The record at the hearing fails to establish the 
 
         date of this incident.  However, Trooper Rude testified it was 
 
         sometime in 1984.  Claimant's work injury herein occurred on 
 
         December 7, 1984.  Claimant testified that he did not notice
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         STOLP V. GREEN FIELD TRANSPORT COMPANY, INC.
 
         Page  6
 
         
 
         
 
         a loss of vision in his right eye until approximately two to two 
 
         and a half weeks after his December 7, 1984 injury.
 
         
 
              Trooper Rude testified he remembered the incident with 
 
         claimant clearly, in that a driver opting to be arrested rather 
 
         than sign a traffic citation is an unusual occurrence.  Trooper 
 
         Rude recalled claimant saying he was blind in one eye, and 
 
         Trooper Rude performed followup investigation based on this 
 
         statement.  Although claimant denies making this statement, there 
 
         is no showing in the record of how Trooper Rude would have known 
 
         of claimant's eye problem other than being told of it by claimant 
 
         himself.  In addition, in assessing the credibility of witnesses, 
 
         motive or incentive to fabricate is properly considered.  Trooper 
 
         Rude, as a witness with no pecuniary interest in the outcome of 
 
         this case, has not been shown to have a motivation or incentive 
 
         to fabricate his testimony.  Claimant clearly does have a 
 
         financial interest in the outcome of the case.  The testimony of 
 
         Trooper Rude in regards to claimant's statement that he was blind 
 
         in one eye is found to be credible.  In light of the record, 
 
         which shows that Trooper Rude stopped claimant in 1984 and 
 
         claimant's statement that his right eye vision loss did not 
 
         develop until two to two and a half weeks after December 7, 1984, 
 
         or near the very end of calendar year 1984, it is concluded that 
 
         the conversation between Trooper Rude and claimant in regards to 
 
         claimant's right eye vision occurred prior in time to claimant's 
 
         alleged onset of symptoms of vision loss in his right eye two to 
 
         two and a half weeks after his December 7, 1984 injury.
 
         
 
              Claimant has failed to carry his burden to show that his 
 
         present 20/100 vision in his right eye is causally connected to 
 
         his truck accident of December 7, 1984.
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              1.  Claimant was employed by defendant Green Field Transport
 
         Company on December 7, 1984.
 
         
 
              2.  Claimant received a work injury in 1969 to his right 
 
         eye, for which claimant was compensated for 100 percent loss of 
 
         use of the right eye.
 
         
 
              3.  Claimant stated to a state trooper in 1984  that  he was 
 
         blind in one eye.
 
         
 
              4.   Claimant is not credible.
 
         
 
              5.  The eye examinations of Dr. Ahn are unreliable in terms 
 
         of establishing claimant's right eye vision at the time of the 
 
         examinations or in determining whether claimant had scarring or 
 
         other evidence of prior injury.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         STOLP V. GREEN FIELD TRANSPORT COMPANY, INC.
 
         Page  7
 
         
 
         
 
              6.   The conclusions of Dr. Folk are based on unreliable 
 
         findings of
 
         Dr. Ahn and are not reliable.
 
         
 
              7.  Claimant's present right eye impairment is not causally 
 
         related to his December 7, 1984 injury.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has failed to carry his burden to show that his 
 
         right eye impairment is causally related to his December 7, 1984 
 
         work injury.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay to claimant the sum of two hundred 
 
         thirteen dollars ($213.00) as reimbursement for medical expenses 
 
         related to bruises from the December 7, 1984 injury.
 
         
 
              That claimant shall take nothing further from these 
 
         proceedings.
 
         
 
              That claimant shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 30th day of January, 1989.
 
         
 
                                         DAVID E  LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. D. J. Smith
 
         Attorney at Law
 
         121 3rd St. SW
 
         Cedar Rapids, Iowa 52404
 
         
 
         Mr. David L. Brown
 
         Mr. John E. Swanson
 
         Attorneys at Law
 
         803 Fleming Bldg.
 
         Des Moines, Iowa 50309
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1401 - 1108.50
 
                                            Filed January 30, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEITH L. STOLP,
 
          
 
               Claimant,
 
          
 
          VS.                                 File No. 782410
 
          
 
          GREEN FIELD TRANSPORT                    A P P E A L
 
          COMPANY,  INC.,
 
                                              D E C I S I 0 N
 
               Employer,
 
          
 
          and
 
         
 
         CARRIERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1401 - 1108.50
 
         
 
              Claimant received a full commutation of an award for 100 
 
         percent loss of his right eye from an injury in 1969.  Claimant 
 
         and his wife testified that in 1974, he began to regain vision in 
 
         his eye.  In 1984, claimant was in a truck accident, and claimed 
 
         his eye was re-injured.  Claimant had obtained a chauffeur's 
 
         license in between the two injuries and had two eye exams which 
 
         stated he had 20/20 vision.  However, cross-examination revealed 
 
         that the eye exams were conducted by a nurse, using a wall chart, 
 
         and claimant had an opportunity to memorize the chart.  Also, a 
 
         state trooper stopped claimant for speeding at a point in time 
 
         when he claimed his eye had 20/20 vision, and the trooper 
 
         testified claimant told him he was blind in one eye.  Claimant 
 
         found not to be credible and awarded only medical benefits for 
 
         other injuries  No causal connection between claimant's present 
 
         eye condition and the new injury.