BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         GARLAND PLIES,
 
         
 
              Claimant,
 
                                                 File No. 783377
 
         VS.
 
         
 
         OSCAR MAYER FOODS CORP.,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Garland 
 
         Plies, claimant, against Oscar Mayer Foods Corp. (Oscar Mayer), 
 
         self-insured employer, for benefits as a result of an alleged 
 
         injury or injuries to his hands and/or arms on or about December 
 
         28, 1984.  A hearing was held in Davenport, Iowa on March 4, 1987 
 
         and the case was submitted on that date.
 
         
 
              The record consists of the testimony of claimant, Vernon E. 
 
         Keller, Monica Murphy, and Peter C. Lau; claimant's exhibits 1 
 
         through 6; and defendant's exhibits A through F. Both parties 
 
         filed a brief.
 
         
 
              The parties stipulated that claimant's weekly rate of 
 
         compensation is $272.83; that only permanent partial disability 
 
         benefits are at issue in this proceeding; that any permanent 
 
         partial disability awarded would commence on January 21, 1985; 
 
         that only scheduled members are allegedly affected (in other 
 
         words, this is not a whole body case); that the Iowa Code section 
 
         86.13 penalty issue was being withdrawn by claimant; that the 
 
         Iowa Code section 85.38(2) credit issue was being withdrawn by 
 
         defendant; and that the parties had informally resolved the Iowa 
 
         Code section 85.27 medical benefits issue.
 
         
 
                                   ISSUES
 
         
 
              The contested issues are:
 
         
 
              1)  Whether claimant sustained an injury or injuries that 
 
         arose out of and in the course of his employment on or about 
 
         December 28, 1984;
 
         
 
              2)  Whether there is a causal relationship between this 
 
         alleged injury or injuries and claimant's asserted disability; 
 
         and
 
         
 
              3)  Nature and extent of disability.  Claimant asserts that 
 
         his. disability or impairment affects both of his arms; defendant 
 
         argues that claimant has no work-related disability, but that in 
 
         the event disability is found by the agency, it be limited to 
 

 
         claimant's hands.
 
         
 
                         SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that he is 47 years old and has worked 
 
         for Oscar Mayer for 22 years in Davenport, Iowa.  Prior to 
 
         December 21, 1984, claimant drove a forklift for Oscar Mayer.  On 
 
         December 21, 1984, claimant started a packing job which entailed 
 
         unfolding cardboard boxes in rooms where the temperature was 35 
 
         to 40 degrees.    This new job required repetitive movements of 
 
         both his arms and he did it all day long on the third shift.  
 
         Claimant did not experience any problems with his elbows, arms, 
 
         or shoulders prior to this new job.  Swelling started as a result 
 
         of this new job and was worse the second night of the new job.  
 
         His hands had to be wrapped.
 
         
 
              Claimant testified that on December 28, 1984 the swelling 
 
         was so bad in both hands and arms that he could not bend his 
 
         hands and went to a company doctor as a result of this condition.  
 
         He first saw John J. Bishop, M.D. He ultimately saw Gordon A. 
 
         Flynn, M.D. Dr. Bishop and Dr. Flynn are associated in some 
 
         manner.  Claimant testified that since December 28, 1984, he has 
 
         not worked at the packing job and that the new activities he 
 
         engages in do not require repetitive movement.  Claimant 
 
         testified that his right thumb has a dead sensation and that he 
 
         has pain in the top of his left hand.  Claimant's grip in his 
 
         right hand has been affected and he has pain "up to the right 
 
         elbow."
 
         
 
              Claimant testified that on several occasions he has seen 
 
         Raymond W. Dasso, M.D. He has also seen a chiropractor by the 
 
         name of D. D. Stierwalt.
 
         
 
              Claimant testified that after he stopped packing it took 
 
         several months for his condition to "level off."
 
         
 
              On cross-examination, claimant testified regarding the 
 
         different job functions he has had after he stopped doing the 
 
         packing job.  He stated that after he returned to these light 
 
         duty jobs his right hand was the worse.  He also stated that he 
 
         has only missed several days of work since his return.  His 
 
         current job involves picking up aluminum pans and putting them 
 
         into a basket, and that these pans weigh about 15 pounds each.  
 
         He has been doing this particular job for about two months.  
 
         Claimant has asked Dr. Flynn to remove his work restrictions 
 
         because he does not want to be restricted to one particular type 
 
         of work.  Claimant stated that he can do 70 to 75 percent of the 
 
         jobs at Oscar Mayer with his once imposed medical restrictions.  
 
         Claimant stated he can do his current assigned work and is not 
 
         aware of any currently enforced medical restrictions for him.  
 
         Claimant is not currently taking medication.
 
         
 
              On redirect, claimant testified that he could not do the 
 
         packing job that he started on December 21, 1984.
 
         
 
              Vernon E. Keller testified that he is the safety and 
 
         security manager for Oscar Mayer in Davenport.  He administers 
 
         the company's workers' compensation scheme in Davenport.  He 
 
         testified that he knows of no current medical restrictions that 
 
         claimant has.  He stated that claimant can currently do his job.  
 
         Keller testified that claimant has missed one-half day because of 
 
         complaints about his hands.
 
         
 
              On cross-examination, Keller testified that both Dr. Bishop 
 

 
         
 
         
 
         
 
         PLIES V. OSCAR MAYER FOODS CORP.
 
         Page   3
 
         
 
         
 
         and Dr. Flynn are "company doctors." He also acknowledged that 
 
         claimant was paid workers' compensation benefits for the 
 
         condition at issue here under the assumption that his condition 
 
         was or is work related.
 
         
 
              Monica Murphy testified that she is the supervising nurse at 
 
         Oscar Mayer in Davenport.  She helps Mr. Keller administer the 
 
         workers' compensation scheme to "a minor extent." Ms. Murphy 
 
         testified that she "knows of claimant's job since December 28, 
 
         1984." She acknowledged that claimant's wrists and hands had some 
 
         swelling and that he "came back in the middle of January 1985." 
 
         She testified that Dr. Flynn has taken off claimant's medically 
 
         imposed restrictions, and she described claimant's current work.  
 
         She further testified that Dr. Flynn has not reimposed any 
 
         medical restrictions.  She testified that claimant can take meat 
 
         off a conveyor belt and put it in a box.
 
         
 
              Peter L. Lau testified that he is a supervisor at Oscar 
 
         Mayer in the "sausage manufacturing" department and has safety 
 
         responsibilities.  He testified that he supervised claimant in 
 
         late January 1985.  He stated that claimant was able to do his 
 
         job and had no complaints about his elbows, hands, or forearms.  
 
         Lau testified that he last supervised claimant about four weeks 
 
         prior to the hearing of March 4, 1987.  Lau testified that 
 
         claimant can do a casing room attendant job and that this job is 
 
         somewhat repetitive.  Lau testified that claimant's current job 
 
         involves stainless steel pans, not aluminum pans.  He testified 
 
         that claimant currently works with 15,000 to 26,000 pounds per 
 
         day.
 
         
 
         
 
              Exhibit 1, page 1 (dated September 25, 1986), is authored by 
 
         Dr. Dasso and reads in part:
 
         
 
              PHYSICAL EXAMINATION: Physical examination on 9-25-86 
 
              reveals a fairly well nourished and well developed, 
 
              somewhat obese, 46 year old white male, height 5'8", 
 
              weight 190 pounds who complains of pain in his forearms 
 
              mainly at this time.  He states it is particularly 
 
              aggravated when he tries to grip things firmly or hold 
 
              them out in extension away from his body.  He states he 
 
              cannot tolerate that type of work very well or very 
 
              long.  The patient has marked tenderness over the 
 
              proximal extensor muscles of both forearms and over the 
 
              medial epicondyle of the left humerus.  This is not so 
 
              bad now, but patient states it is usually quite severe.  
 
              The patient at this time has normal range of motion of 
 
              the joints of his thumbs and fingers and of the wrists 
 
              and elbow joints.  He does not have swollen hands now, 
 
              but states they were considerably swollen and tender at 
 
              the time this condition developed when he was doing the 
 
              ham packing.
 
         
 
              Exhibit 1, page 2, reads in part: "PROGNOSIS: Fair.  Patient 
 
         is likely to need some permanent restrictions while at work." 
 
         Exhibit 1, page 2, also reads in part:
 
         
 
                   DISABILITY:  Patient states he missed about 3
 
              weeks work while under the care of the company doctor 
 

 
         
 
         
 
         
 
         PLIES V. OSCAR MAYER FOODS CORP.
 
         Page   4
 
         
 
         
 
              about January of 1985.  He has been on light work since 
 
              then.  In my opinion, the patient is under permanent 
 
              restrictions of not being able to return to repetitive 
 
              [sic] use of his hands, wrists, and forearms at.any 
 
              time in the future.  In my opinion, the patient has 
 
              about 10% permanent partial disability of both upper 
 
              extremities.
 
         
 
              Exhibit 3 is authored by Dr. Dasso and reads:
 
         
 
              This is a follow-up report based on the examination of 
 
              September 25, 1986 on Garland Plies.  After seeing the 
 
              patient again today, 10/9/86, in my opinion, his 
 
              diagnosis is that of Bilateral Carpal Tunnel Syndrome, 
 
              and he has a permanent partial disability rating of 5% 
 
              of both forearms and wrists and hands.
 
         
 
              Exhibit 6 (dated August 21, 1985), is authored by John E. 
 
         Sinning, Jr., M.D., which reads:
 
         
 
              It is my pleasure to see Garland Plies today with this 
 
              perplexing problem of recurrent extensor tenosynovitis 
 
              involving his wrists.  Trying the different 
 
              anti-inflammatories would seem to be the best bet plus 
 
              the wrist splinting.  The present splint seems 
 
              perfectly adequate with no indication to try anything 
 
              more elaborate.  I am afraid this will be a trial and 
 
              error problem that is unlikely to have any rapid 
 
              solution.
 
         
 
              Exhibit C, page 1 (dated November 19, 1986), is authored by 
 
         Dr. Sinning and reads in part:
 
         
 
              I appreciate your asking me to see Garland Plies about 
 
              his hands and forearm problem.  Signs and symptoms in 
 
              no way suggest a carpal tunnel syndrome.  Instead he 
 
              continues to complain along the same line for which I 
 
              saw him in August 1985, that is a recurring 
 
              tenosynovitis of the extensors of both wrists, possibly 
 
              even a myositis involving the extensors. (Emphasis 
 
              added.)
 
         
 
              Exhibit E is the deposition of Dr. Sinning taken on February 
 
         18, 1987.  He first saw claimant in August 1985.  Dr. Sinning's 
 
         diagnosis is recurrent extensor tenosynovitis. on page 10, he 
 
         stated he was unable to determine the cause of this condition.  
 
         He saw claimant again in November 1986.  On page 13, Dr. Sinning 
 
         stated that on the left side claimant had full motion of his 
 
         wrist and fingers.  He had soreness in both wrists, however.  
 
         Claimant had no evidence of diagnosable arthritis.  He saw 
 
         claimant again on December 1, 1986 and on that date claimant's 
 
         complaints were consistent with an emerging arthritic condition.  
 
         He stated on page 21 that this "systemic arthritis" was not 
 
         caused by claimant's Oscar Mayer employment.  There is no known 
 
         cause for this type of arthritic condition according to Dr. 
 
         Sinning.
 
         
 
              on cross-examination, Dr. Sinning stated why he disagreed 
 
         with Dr. Dasso.  Id. at 23.  On recross-examination, Dr. Sinning 
 

 
         
 
         
 
         
 
         PLIES V. OSCAR MAYER FOODS CORP.
 
         Page   5
 
         
 
         
 
         stated that he believed the condition of claimant's arms is 
 
         unrelated to his Oscar Mayer employment.  Dr. Flynn had asked Dr. 
 
         Sinning to be a consultant in this case.  Id. at 45.
 
         
 
              Exhibit F is the deposition of Dr. Flynn taken on February 
 
         19, 1987.  He first saw claimant on December 31, 1984 at which 
 
         time claimant had "severe swelling of both hands." On page 8, Dr. 
 
         Flynn stated: "There seemed to be tenderness in the joint itself, 
 
         and this would suggest more some kind of arthritic problem than 
 
         it would tendon problem." On page 9, he stated as of June 17, 
 
         1985 there was no evidence of bilateral carpal tunnel syndrome.  
 
         On page 15, he stated that claimant does not "apparently have 
 
         diagnosable rheumatoid arthritis at this time." On page 16, he 
 
         stated that claimant's arthritic condition was not caused by his 
 
         Oscar Mayer employment.  On page 22, he stated that claimant's 
 
         Oscar Mayer employment did not accelerate the disease process.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              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; his 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.  Both parties may bring all this information to the 
 
         attention of the fact finder 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).
 
         
 
              The opinions expressed by Dr. Sinning and Dr. Flynn have 
 
         convinced me that claimant did not sustain any permanent partial 
 
         impairment to any scheduled member as a result of his Oscar Mayer 
 
         employment.  Dr. Dasso's opinion is not persuasive and I do not 
 
         find the views of the chiropractor persuasive in this case.
 
         
 
                                   FINDINGS OF FACT
 
         
 
              1.  Claimant has worked for Oscar Mayer for twenty-two 
 
         years.
 
         
 
              2.  Prior to December 21, 1984, claimant did such activities 
 
         as driving a forklift.
 
         
 
              3.  On December 21, 1984, claimant started a packing job at 
 
         Oscar Mayer which required repetitive movements of both his hands 
 
         and arms.
 
         
 
              4.  The packing job temporarily aggravated claimant's hands 
 
         or arms.
 
         
 

 
         
 
         
 
         
 
         PLIES V. OSCAR MAYER FOODS CORP.
 
         Page   6
 
         
 
         
 
              5.  Claimant's packing job at Oscar Mayer did not cause any 
 
         permanent partial impairment to any scheduled member or members.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              Claimant failed to show the following things by a 
 
         preponderance of the evidence:
 
         
 
              1.  That he sustained an injury or injuries that arose out 
 
         of and in the course of his Oscar Mayer employment that caused 
 
         any permanent partial impairment or disability.
 
         
 
              2.  That there is a causal relationship between these 
 
         alleged injuries and any asserted disability.
 
         
 
                                    ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That claimant pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
              That defendant file claim activity reports pursuant to 
 
         Division of Industrial Services Rule 343-3.1(2) as requested by 
 
         the agency.
 
         
 
                  Signed and filed this 29th day of April, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                            T. J. McSWEENEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Peter M. Soble 
 
         Attorney at Law 
 
         1705:Second Avenue
 
         Rock Island, Illinois 61265
 
         
 
         Mr. Richard McMahon
 
         Ms. Vicki L. Seeck
 
         Attorneys at Law
 
         600 Union Arcade Building
 
         111 E. 3rd Street
 
         Davenport, Iowa 52801-1550
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.30; 1402.40
 
                                            Filed 4-29-87
 
                                            T. J. McSweeney
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         GARLAND PLIES,
 
         
 
             Claimant,
 
                                                 File No. 783377
 
         VS.
 
         
 
         OSCAR MAYER FOODS CORP.,
 
                                             A R B I T R A T I 0 N
 
             Employer,
 
                                                 D E C I S I 0 N
 
             Self-Insured
 
             Defendant.
 
         _________________________________________________________________
 
         
 
         1402.30; 1402.40
 
         
 
              Held in arbitration that claimant sustained only temporary 
 
         aggravation of his arms and/or hands as a result of repetitive 
 
         work for Oscar Mayer.  Only permanency benefits were at issue 
 
         and, therefore, claimant took nothing from the proceeding.
 
 
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RANDY OLSEN,
 
         
 
              Claimant,
 
                                                File No. 783391
 
         vs.
 
                                             A R B I T R A T I O N
 
         FDL FOODS, INC.,
 
                                                D E C I S I O N
 
         Employer,
 
         Self-Insured,
 
         Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Randy Olsen, 
 
         claimant, against FDL Foods, Inc., self-insured, employer, 
 
         defendant, for benefits as a result of an injury which allegedly 
 
         occurred on September 6, 1983.  On September 27, 1988, this case 
 
         was heard by the undersigned in Dubuque, Iowa.  The case was 
 
         considered fully submitted at the completion of the hearing.
 
         
 
              The record consists of the testimony of claimant and joint 
 
         exhibit 1 which consists of 48 pages.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties at the time of the 
 
         prehearing and hearing are:
 
         
 
              1)   Whether claimant received an injury which arose out of 
 
         and in the course of employment;
 
         
 
              2)  Whether there is a causal relationship between the 
 
         alleged injury and the disability;
 
         
 
              3)   Whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial or total 
 
         disability benefits; and,
 
         
 
              4)   Whether claimant is entitled to medical benefits under 
 
         section 85.27.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant is currently 32 years old.  He was employed as a 
 
         laborer at defendant's place of business approximately one year 
 
         prior to the date of the alleged injury.  Claimant testified that 
 
         on September 6, 1983, he was putting hog heads in a snout wheel 
 
         with his left hand and pulling off the head with his right hand 
 
         and placing the head on a work table with his right hand.  
 
         Claimant reported his right and left hands started falling 
 
         asleep, but his right hand was worse than the left.  This 
 
         activity was a repetitive type of activity which claimant had 
 
         performed on numerous occasions.  Claimant sought the medical 
 
         attention of L. C. Faber, M.D., medical director for defendant, 
 
         on the sixth of September.  Claimant's right wrist was treated by 
 

 
         
 
         
 
         OLSEN V.FDL FOODS,INC.
 
         PAGE 2
 
         
 
         
 
         Dr. Faber.  Surgery was performed on claimant's right wrist on 
 
         December 31, 1984.  Subsequent to the date of the surgery, 
 
         claimant had physical therapy at Finley Hospital three or four 
 
         times per week.
 
         
 
              Claimant was released to return to work on light duty as of 
 
         March 11, 1985.  From that date until March 25, 1988, claimant 
 
         was prohibited from using a knife.  After claimant returned to 
 
         work, he was placed on the beef kill where claimant was 
 
         responsible for separating "beef guts" from beef spleens.
 
         
 
              Claimant continued in the employ of defendant until June 14, 
 
         1985 when he was terminated.  At all times, claimant contended he 
 
         was unable to perform his job duties because of pain in his right 
 
         hand.  Defendant reported claimant was terminated because 
 
         claimant "failed to perform satisfactory work or failed to 
 
         maintain efficient production."   Defendant maintained claimant 
 
         was unable to provide objective proof that he was medically 
 
         incapable of performing his job duties.
 
         
 
              Claimant was evaluated by William F. Blair, M.D., on August 
 
         27, 1985.  Dr. Blair, in his letter of September 11, 1985, 
 
         writes:
 
         
 
              ... Randy Olsen has experienced resolution of his right 
 
              Carpal Tunnel Syndrome.  He nevertheless, has 
 
              persistent symptoms, by his history, which correspond 
 
              to his median nerve distribution.  This is a relatively 
 
              common finding in patients who return to the demanding 
 
              tasks of the meat packing industry.  The problem then, 
 
              is an activity related median-neuropathy secondary to 
 
              his previous Carpal Tunnel Syndrome.  Randy also 
 
              complained of pain about the medial aspect of his 
 
              elbow, over the epicondyle, but without symptoms 
 
              referable to his ulnar nerve.  These findings are 
 
              consistent with Medial Epicondylitis.
 
         
 
              ... My impression is that his previous occupation as a 
 
              meat packer may have exacerbated these symptoms 
 
              associated with his median neuropathy.  However, the 
 
              nature of his pathology is not severe enough to prevent 
 
              him from gainful employment in an alternative task with 
 
              the same employer, nor from successfully being employed 
 
              elsewhere.
 
         
 
              In a follow-up letter of September 18, 1985, Dr. Blair 
 
         determined an impairment rating for claimant as follows:
 
         
 
              I estimate his permanent impairment, using the AMA 
 
              Guides the the [sic] Evaluation of Permanent Impairment 
 
              to be approximately 3% of the right upper extremity.  
 
              This is based upon his symptoms, slight deficits in his 
 
              demonstrable grip strength, and taking into 
 
              consideration his recent electromyographic studies were 
 
              normal.
 
         
 
              A second evaluation was performed by David S. Field, M.D., 
 
         on December 8, 1987.  The work notes for that day reflect, among 
 
         other things, the following:
 
         
 
              ... He complains of pain in the region of the wrist 
 
              with grasping and the use of the hand.  The pain 
 
              radiates up his forearm.  Complains of numbness of the 
 
              hand when he uses it. occasional nighttime dysesthesia 
 
              and does get cold at times.  The more he uses the hand, 
 
              the more increased pain he experiences.  He stated that 
 
              prior to his original surgery, he had numbness in his 
 
              fingers, all except his fifth finger.  Did have some 
 
     
 
         
 
         
 
         
 
         
 
         OLSEN V. FDL FOODS, INC.
 
         PAGE   3
 
         
 
         
 
              nighttime discomfort.
 
         
 
              Since his surgery, however, he has noted considerable 
 
              decreased grip strength.  He had no past history of 
 
              fractures relative to his wrist.  He has been seen and 
 
              evaluated also in Iowa city in August of 1985 and had 
 
              EMG nerve conduction studies; performed at that time.  
 
              There is no history of diabetes or thyroid disorder.
 
         
 
              On clinical examination, it appears that his grip 
 
              strength in the right hand is one-half that of the 
 
              left.  He does have decreased sensation to pinprick in 
 
              the distal portion of the thumb, index and long 
 
              fingers, but no other portion of the hand noted.  He 
 
              also has a tenderness of the ulnar nerve at the elbow.
 
         
 
              His scar appears slightly sensitive and does cross over 
 
              to the region of both the median and ulnar nerve 
 
              distribution of his hand.
 
         
 
                 ...
 
         
 
              ... It has been several months, i.e. some three years 
 
              now, since his original surgery with inability to 
 
              return to work activity.  This is, indeed, unusual as 
 
              most people can respond to carpal tunnel decompression 
 
              and resume` [sic] the majority of their activities.  I 
 
              did discuss this with him and would feel that this 
 
              option is at risk as it may well not be successful.  
 
              However, the alternative would be accepting what he has 
 
              and resume light work activities and definitely 
 
              restrict repetitive use of the hand indefinitely ....
 
         
 
              In his letter of January 22, 1988, Dr. Field calculated an 
 
         impairment rating as follows:
 
         
 
              ... I would feel that he merits a ten percent 
 
              impairment of the right hand based on his post carpal 
 
              tunnel syndrome.  This would be based on the degree of 
 
              residual sensory loss and the degree of decreased grip 
 
              strength present in the hand.
 
         
 
              Relative to light duty at a job which does not involve 
 
              repetitive usage of the hand, i.e., gripping, 
 
              squeezing, and repetitive wrist motion, would be 
 
              contraindicated.
 
         
 
              Other jobs which involve occasional lifting with the 
 
              use of the hand and forearm, etc., would be quite 
 
              satisfactory.
 
         
 
              After claimant's termination, he remained unemployed until 
 
         the last week of April in 1987 when he was hired at the dog track 
 
         in Dubuque.  Claimant held this job for a brief period of time.
 
         
 
              In July of 1987, claimant was hired on a temporary basis at 
 
         a service station/convenience store.  The position lasted two 
 
         weeks.
 
         
 
              Since July of 1987, claimant has been unemployed.  He 
 
         reports there are no jobs available for which he is qualified.  
 
         Claimant also reports he has suspended efforts to seek 
 
         employment.
 

 
         
 
         
 
         
 
         OLSEN V. FDL FOODS, INC.
 
         PAGE   4
 
         
 
         
 
         
 
                                  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).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on September 6, 1983 which 
 
         arose out of and in the course of his 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).
 
         
 
              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, 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, 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."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 6, 1983 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.  
 
         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 (1967).
 
         
 
              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 
 

 
         
 
         
 
         
 
         OLSEN V. FDL FOODS, INC.
 
         PAGE   5
 
         
 
         
 
         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 to a scheduled member may, because of after 
 
         effects (or compensatory change), result in permanent impairment 
 
         of the body as a whole.  Such impairment may in turn form the 
 
         basis for a rating of industrial disability.  Dailey v. Pooley 
 
         Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup, 222 Iowa 
 
         272, 268 N.W. 598 (1936).
 
         
 
             An injury to a scheduled member which, because of 
 
         after-effects (or compensatory change), creates impairment to the 
 
         body as a whole entitles claimant to industrial disability.  
 
         Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
         (1961).  Daily, 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  
 
         Barton, 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey, 233 Iowa 
 
         758, 10 N.W.2d 569 (1943).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has satisfactorily demonstrated by a preponderance 
 
         of the evidence that he has sustained an injury which arose out 
 
         of and in the course of his employment.  It is undisputed 
 
         claimant's injuries occurred while he was performing services on 
 
         behalf of defendant.  It is also undisputed the injuries were the 
 
         result of claimant's repetitive use of his right hand while he 
 
         was pulling snouts at defendant's place of business.
 
         
 
              Claimant contends he is entitled to healing period benefits 
 
         from December 29, 1984 through March 11, 1985, and from May 16, 
 
         1985 through August 27, 1985.  Defendant maintains the healing 
 
         period ended no later than March 25, 1985.  Claimant returned to 
 
         work on March 11, 1985.  Restrictions at work were removed as of 
 
         March 25, 1985.
 
         
 
              Section 85.34(l) of the Iowa code defines healing period.  
 
         It reads:
 
         
 
              If an employee has suffered a personal injury causing 
 
              permanent partial disability for which compensation is 
 
              payable as provided in subsection 2 of this section, 
 
              the employer shall pay to the employee compensation for 
 
              a healing period, as provided in section 85.37, 
 
              beginning on the date of injury, and until the employee 
 
              has returned to work or it is medically indicated that 
 
              significant improvement from the injury is not 
 
              anticipated or until the employee is medically capable 
 
              of returning to employment substantially similar to the 
 
              employment in which the employee was engaged at the 
 
              time of injury, whichever occur first.
 
         
 
              In the case at bar, claimant was off work from December 12, 
 
         1984.  He returned to work on March 11, 1985.  By definition, the 
 
         return to work ends the healing period.
 
         
 
              Claimant was seen by a physician on a date subsequent to his 
 
         return to work.  However, this in and of itself, does not extend 
 
         the healing period.  Claimant's physician, Dr. Blair, was unable 
 
         to state claimant could not perform his work duties prior to May 
 

 
         
 
         
 
         
 
         OLSEN V. FDL FOODS, INC.
 
         PAGE   6
 
         
 
         
 
         1, 1985.  The facts clearly show claimant's healing period ended 
 
         on the day he returned to work.  That date is March 11, 1985.
 
         
 
              The parties stipulated claimant was paid 10.286 weeks of 
 
         compensation at the rate of $175.36 per week for the period from 
 
         December 29, 1984 to March 10, 1985.  The parties also stipulated 
 
         in their prehearing report that claimant was underpaid healing 
 
         period benefits from December 29, 1984 to March 10, 1985 by 
 
         $26.69 per week as the result of a clerical error, for a total of 
 
         $274.53.
 
         
 
               The final issue to address is the nature and extent of any 
 
         scheduled member disability to the right hand.  The parties, in 
 
         their prehearing report stipulated that if a permanent injury is 
 
         found, cause of the permanent disability is a scheduled member 
 
         disability to the hand.
 
         
 
              Dr. Faber performed the requisite surgery on claimant.  
 
         Nevertheless, no impairment rating was compiled by Dr. Faber.
 
         
 
              Impairment ratings were prepared by Dr. Blair, nearly one 
 
         year after the surgery, and by Dr. Field, nearly two years after 
 
         the surgery.  Dr. Blair provided his rating as an impairment of 
 
         the upper extremity.  However, this does not indicate that 
 
         impairment exists beyond the hand.  Physicians may rate carpal 
 
         tunnel syndrome impairment as either an impairment of the hand or 
 
         as an impairment of the upper extremity.  Also, when the AMA 
 
         Guides are used to convert impairments between the hand and the 
 
         arm, the net result when awarding compensation usually does not 
 
         vary much whether the impairment is treated as an impairment of 
 
         the hand or as an impairment of the upper extremity.
 
         
 
              Dr. Blair's ratings do not appear to be inconsistent with 
 
         Table 9 at page 10 of the second edition of the Guides to the 
 
         Evaluation of Permanent Impairment.  Table 9 shows a three 
 
         percent impairment of the hand is equivalent to a three percent 
 
         impairment of the upper extremity.  Dr. Field's ten percent 
 
         impairment rating of the hand is equivalent to nine percent 
 
         impairment of the upper extremity.  Impairment ratings of the 
 
         hand are easily converted to equivalent impairment ratings of the 
 
         upper extremity and vice versa using Table 9.  See:  Division of 
 
         Industrial Services Rule 343-2.4.
 
         
 
              Agency expertise and experience demonstrates that an 
 
         impairment rating, following carpal tunnel surgery of five 
 
         percent of the hand or less indicates a favorable result from 
 
         surgery.  Impairment ratings of ten percent of the hand or 
 
         greater often indicate a surgery that is not completely 
 
         successful.  See:  Van Blarcom v. FDL Foods, Inc., 796651 
 
         (Arbitration Decision filed May 16, 1988).
 
         
 
              Claimant's appearance and demeanor were observed as he 
 
         testified.  Claimant reported the persistence of severe pain 
 
         while he was employed for defendant and at the time of hearing.  
 
         Claimant's testimony concerning his pain is credible.  The rating 
 
         of Dr. Field rather than the rating of Dr. Blair is found to be 
 
         more consistent with claimant's continuing symptoms and 
 
         complaints.  When considering the evidence in total, it is found 
 
         that claimant has a ten percent loss of the use of his right 
 
         hand.  He is entitled to receive 19 weeks of compensation for his 
 
         permanent partial disability.  Payment of the 19 weeks was due 
 
         commencing on March 11, 1985.  As a result, claimant is also 
 
         entitled to recover interest on tile unpaid compensation at the 
 

 
         
 
         
 
         
 
         OLSEN V. FDL FOODS, INC.
 
         PAGE   7
 
         
 
         
 
         rate of 10 percent per annum computed from the date each payment 
 
         came due until the date of actual payment.  Teel v. McCord, 394 
 
         N.W.2d 405 (Iowa 1986).
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence represented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  On September 6, 1983, claimant was injured while 
 
         working for defendant.
 
         
 
              CONCLUSION A.  On September 6, 1983, claimant received an 
 
         injury arising out of and in the course of his employment with 
 
         defendant.
 
         
 
              FINDING 2.  As a result of that injury, claimant sustained 
 
         injuries to his right hand.
 
         
 
              CONCLUSION B.  Claimant met his burden of proving a causal 
 
         connection between his injury on September 6, 1983 and his right 
 
         hand complaints.
 
         
 
              FINDING 4.  Claimant was in the healing period from December 
 
         29, 1984 to March 11, 1985.
 
         
 
              CONCLUSION C.  Claimant is entitled to healing period 
 

 
         
 
         
 
         
 
         OLSEN V. FDL FOODS, INC.
 
         PAGE   8
 
         
 
         
 
         benefits for the period from December 29, 1984 to March 11, 1985, 
 
         at the weekly rate of $202.05.
 
         
 
              FINDING 3.  Claimant has a 10 percent permanent partial 
 
         disability to the hand as a result of his injury.
 
         
 
              CONCLUSION D.  Claimant has met his burden of proving he is 
 
         entitled to 19 weeks of permanent partial disability benefits 
 
         because of the September 6, 1983 injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendant is to pay unto claimant nineteen (19) 
 
         weeks of permanent partial disability benefits at a rate of two 
 
         hundred two and 05/100 dollars ($202.05).
 
         
 
              Defendant shall receive credit for benefits previously 
 
         paid.
 
         
 
              Accrued benefits are to be made in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year 
 
         pursuant to section 85.30, Code of Iowa, as amended.
 
         
 
              Costs are taxed to defendant pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Defendant shall file a claim activity report upon payment of 
 
         this award.
 
         
 
         
 
              Signed and filed this 30th day of November, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          MICHELLE A. McGOVERN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Nick J. Avgerinos
 
         Attorney at Law
 
         101 N. Wacker Dr. Suite 740
 
         Chicago, Illinois  60606
 
         
 
         Mr. David C. Bauer
 
         Mr. James M. Heckmann
 
         Attorneys at Law
 
         One Cycare Plaza
 
         Suite 216
 
         Dubuque, Iowa 52001
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803.1
 
                                               Filed November 30, 1988
 
                                               MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RANDY OLSEN,
 
         
 
             Claimant,
 
                                                   File No. 783391
 
         vs.
 
                                                A R B I T R A T I O N
 
         FDL FOODS, INC.,
 
                                                   D E C I S I O N
 
             Employer,
 
             Self-Insured,
 
             Defendant.
 
         
 
         
 
         
 
         1803.1
 
         
 
              Claimant awarded a 10 percent permanent partial disability 
 
         to the hand as a result of an injury which arose out of and in 
 
         the course of his employment.
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        LEONARD PEARSON,
 
        
 
            Claimant,
 
        
 
        vs.                             File No. 783422
 
        
 
        IOWA CONCRETE PRODUCTS INC.,       A P P E A L
 
        
 
            Employer,                   D E C I S I O N
 
        
 
        and
 
        
 
        WAUSAU INSURANCE COMPANIES,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from an arbitration decision awarding permanent 
 
        partial disability benefits as the result of an injury sustained 
 
        December 13, 1984.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration proceeding and joint exhibits 1 through 20 inclusive.
 
        
 
                                      ISSUE
 
        
 
        The issue is whether or not the bilateral carpal tunnel syndrome 
 
        resulted in greater disability than awarded by the deputy.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issue and the evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the evidence in conjunction with the law is 
 
        adopted.
 
        
 
        PEARSON v. IOWA CONCRETE PRODUCTS INC.
 
        Page 2
 
        
 
        
 
        The mathematical determination is based on converting the 
 
        scheduled extremities to a body as a whole impairment rating. The 
 
        hearing deputy followed claimant's trial brief in making the 
 
        award. Claimant's brief on appeal is correct. It is apparent that 
 
        claimant is entitled to recovery based on six percent of the body 
 
        as a whole or 30 weeks of permanent partial disability.
 
        
 
                                 FINDINGS OF FACT
 

 
        
 
 
 
 
 
        
 
        1. Claimant sustained an injury which arose out of and in the 
 
        course of his employment December 13, 1984 which resulted in 
 
        bilateral carpal tunnel surgery.
 
        
 
         2. Claimant's work injury was caused by his employment.
 
        
 
        3. Claimant has a permanent partial impairment of five percent to 
 
        two major members as a result of the work injury.
 
        
 
        4. Claimant's disability is to a scheduled member.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
        Claimant has established his work injury is the cause of a 
 
        permanent impairment of six percent to two major members 
 
        entitling him to 30 weeks of permanent partial disability 
 
        benefits pursuant to Iowa Code section 85.34(2)(s).
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
         That defendants are to pay unto claimant thirty (30) weeks of 
 
        permanent partial disability benefits at a rate of one hundred 
 
        ninety-two and 31/100 dollars per week commencing April 21, 1985.
 
        
 
        That defendants shall receive full credit for all permanent 
 
        partial disability benefits previously paid.
 
        
 
        That payments shall be paid in a lump sum together with statutory 
 
        interest thereon pursuant to Iowa Code section 85.30.
 
        
 
        That a claim activity report shall be filed upon payment of this 
 
        award.
 
        
 
        That the costs of this action are assessed against the defendants 
 
        pursuant to Division of Industrial Services Rule 343-4.33.
 
        
 
        PEARSON v. IOWA CONCRETE PRODUCTS INC.
 
        Page 3
 
        
 
        
 
        Signed and filed this 13th day of December, 1988.
 
        
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEONARD PEARSON,
 
         
 
              Claimant,
 
                                                     File No. 783422
 
         VS.
 
         
 
         IOWA CONCRETE PRODUCTS INC.,            A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
               This is a proceeding in arbitration brought by Leonard 
 
         Pearson, claimant, against Iowa Concrete Products, Inc., 
 
         employer, and Wausau Insurance Companies, insurance carrier, to 
 
         recover benefits under the Iowa Workers' Compensation Act as a 
 
         result of an alleged injury sustained December 13, 1984.  The 
 
         matters addressed in file numbers 738738, 783442, 636855 and 
 
         814511 came on for hearing before the undersigned deputy 
 
         industrial commissioner January 27, 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 
 
         Debra Pearson, his wife; and joint exhibits 1 through 20, 
 
         inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order approved January 
 
         27, 1988, the issues presented for determination are:
 
         
 
              1.  ClaimantOs work injury is the cause of a permanent 
 
         impairment and, if so,
 
         
 
              2.  The nature and extent of claimant's entitlement to 
 
         permanent partial disability benefits.
 
         
 
                                 FACTS PRESENTED
 
         
 
              On May 6, 1980, claimant fell off a ladder onto a solid 
 
         cement floor landing on his left arm and shoulder.  Claimant 
 
         testified he was off work for an extensive period of time,
 
         underwent at least three different surgical procedures on his 
 
         left elbow and hand and returned to work in approximately August 
 
         1981 after receiving a settlement on permanent partial disability 
 
         benefits.  On July 18, 1983, while putting a fork on a forklift, 
 
         claimant's left foot was injured when a fork fell across it.  
 
         Claimant explained he had two surgical procedures done on his 
 
         foot during which "hardware" was put in.  On December 13, 1984, 
 

 
         bilateral carpal tunnel surgery was performed.  Defendants agree 
 
         all three of these injuries arose out of and in the course of 
 
         claimant's employment.
 
         
 
              Claimant testified December 5 was the last day he worked 
 
         in 1985 and that he had been having trouble with his shoulder 
 
         throughout the months of November and December 1985.  He 
 
         explained he had been rolling and patching pipe and running a 
 
         material truck using a pick and shovel.  Claimant stated he saw 
 
         Robb Fulton, M.D., who prescribed pain medication and physical 
 
         therapy and that he was released to return to work January 31, 
 
         1986.
 
         
 
              Claimant testified he continues to experience pain in his 
 
         shoulder, that he has a loss of grip in both hands, and that he 
 
         is able to reach above his head but not without pain.  He 
 
         acknowledged he is able to perform all of the responsibilities 
 
         of his job, that he is under no restrictions, and that he fully 
 
         intends to continue in his employment with Iowa Concrete 
 
         Products.  Claimant relates his pain to the accident of 1980 
 
         and admitted he is not now under any current medical treatment 
 
         for any of these injuries.
 
         
 
              Debra Pearson testified she was aware of no problems 
 
         claimant had with his hands, wrists, shoulder, or left foot 
 
         prior to his work injuries.  She opined claimant tends to 
 
         "baby" himself and put restrictions on himself as a result of 
 
         perceived pain.  She did not describe these symptoms of pain as 
 
         constant or continual but rather testified that claimant "feels 
 
         pretty good most generally.O
 
         
 
              X-rays taken following claimant's July 18, 1983 foot 
 
         injury did not reveal evidence of fracture but showed diastasis 
 
         of the 4th and 5th metatarsals.  William Boulden, M.D., 
 
         operated on claimant November 9, 1983 for repair of this 
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC.
 
         Page   3
 
         
 
         condition and, when claimant did not recover as expected, 
 
         performed an open reduction and internal fixation of metatarsal 
 
         diastasis and fusion using 3 AO screws to solidify the 
 
         fixation.  Claimant was given a 10 percent permanent partial 
 
         impairment rating of the left foot from Dr. Boulden on June 6, 
 
         1984.  Claimant was also given a 45 percent permanent partial 
 
         disability rating due to the injury from Dr. Charles Parker, 
 
         Podiatrist, on November 1, 1984.
 
         
 
              Claimant has had multiple operations on his left upper 
 
         extremity since his fall from the ladder in May 1980, including 
 
         two left carpal tunnel releases, two cubital tunnel 
 
         compressions and a left lateral epicondylitis release.  On July 
 
         17, 1981, claimant underwent surgery by J.D. Bell, D.O., for a 
 
         nerve entrapment syndrome on the left.  Further surgery was 
 
         done October 19, 1982 by Peter D. Wirtz, M.D., for tendon 
 
         removal at the left elbow.  Arnis Grundberg, M.D., performed an 
 
         ulnar nerve exploration and transfer at the elbow and in the 
 
         wrist area.  Dr. Wirtz released claimant to return to work 
 
         opining claimant had no permanent partial impairment.  Dr. 
 
         Grundberg gave claimant a five percent permanent partial 
 
         impairment rating of the upper left extremity.
 
         
 
              Claimant was evaluated February 10, 1987 by Robert 
 
         Breedlove, M.D., who concluded:
 
         
 
                 I feel that the 10% permanent partial impairment of 
 
              the left foot is appropriate at this point considering 
 
              the patient's inability to walk long distances and the 
 
              difficulty he has with kneeling and bending forward 
 
              which is required in part of his job.  I would rate the 
 
              permanent partial impairment of his left shoulder at 7% 
 
              of the left upper extremity.  I base this on the fact 
 
              that he has 120 degrees of abduction for a 3% permanent 
 
              partial impairment.  He has 150 degrees of forward 
 
              flexion but he also has moderate pain for the last 60 
 
              degrees and would rate that at 2% permanent partial 
 
              impairment.  Internal rotation 1% and extension 1%.
 
         
 
         (Joint Exhibit 8, page 5)
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC.
 
         Page   4
 
         
 
         
 
              Dr. Breedlove recommended:
 
         
 
                 Treatment for the patient's left foot pain would 
 
              include obtaining Rockport shoes in order to better 
 
              cushion his feet when he is walking.  They do not make 
 
              steel toed Rockport shoes, so I feel Sorbothane full 
 
              sole inserts would be applicable for his work boots.
 
         
 
         (Jt. Ex. 8, p. 5)
 
         
 
              With regard to claimant's alleged December 1985 injury, Dr. 
 
         Breedlove writes:
 
         
 
                 Mr. Pearson states that either in November or 
 
              December 1985 he was unloading frozen sand off of a 
 
              truck using a pick and shovel and then began 
 
              experiencing leet shoulder pain.  On further 
 
              questioning, the patient denies having had left 
 
              shoulder pain previous to this accident.  He did 
 
              mention the multiple carpal tunnel releases and ulnar 
 
              nerve releases.  In reviewing the records that I have 
 
              available from December 13, 1985, by Dr. Fulton, he 
 
              states that Mr. Pearson had pain in the left shoulder 
 
              in the fall of 1984.  He also states that in 1983 
 
              following an accident at work in which he fell off of a 
 
              ladder onto the concrete floor landing on his left 
 
              shoulder he did experience some difficulty with pain.
 
         
 
         (Jt. Ex. 8, p. 3)
 
         
 
              Claimant was seen for evaluation February 6, 1987, by Jerome 
 
         G. Bashara, M.D., who concluded:
 
         
 
                 In reviewing the history and all of the records on 
 
              this patient, it is my opinion that the patient has a 
 
              15% permanent partial physical impairment of his left 
 
              upper extremity.  I believe that 10% of this impairment 
 
              rating is related to an injury which he sustained at 
 
              work on May 10, 1980 to his shoulder and elbow.
 
         
 
                 I believe that 5% of the above 15% rating is related 
 
              to repetitive trauma to his wrist which he sustained at 
 
              work over the next several year period resulting in the 
 
              development of a carpal tunnel syndrome with subsequent 
 
              surgery.
 
         
 
         (Jt. Ex. 6, p. 1)
 
         
 
              Dr. Bashara makes no note of any alleged December 1985 
 
         injury.
 
         
 
              Claimant saw Robb Fulton, D.O., November 27, 1985 for pain 
 
         in the left shoulder radiating to the left elbow.  Dr. Fulton 
 
         notes the onset of pain was in 1983 "following an accident at 
 
         work in which he fell off a ladder onto concrete floor on his 
 
         left shoulder.O  Dr. Fulton found "tenderness to palpation of 
 
         left shoulder muscles in general and on the tendon of the long 
 
         head of left biceps in particular.  There is significant weakness 
 
         of left grip, forearm, triceps and biceps; however, range of 
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC.
 
         Page   5
 
         
 
         motion is essentially normal.O  (Jt. Ex. 8, p. 2)
 
         
 
                                  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).
 
         
 
              Workers' compensation benefits for permanent partial 
 
         disability of two members caused by a single accident is a 
 
         scheduled benefit evaluated by the functional method.  Simbro v. 
 
         DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 6, 1980 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  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
 
         
 
              This case, simply put, involves an injury of December 13, 
 
         1984 which resulted in bilateral carpal tunnel surgery.  It has 
 
         been stipulated claimant's work injury arose out of and in the 
 
         course of his employment and is the cause of both temporary 
 
         (December 14, 1984 through April 21, 1985) and permanent 
 
         disability.  Ronald S. Bergman, M.D., who performed the surgery, 
 
         indicates there is a direct cause or relationship of claimant's 
 
         condition to his work.  (Joint Exhibit 7)  Causation has thus 
 
         been established.
 
         
 
               Dr. Bergman gave bilateral ratings of three to five percent 
 
         of each upper extremity in May 1985.  This opinion did not change 
 
         when claimant was reevaluated on October 8, 1986.  Dr. Bergman 
 
         reported claimant continued to experience pain and numbness in 
 
         his hands, the symptoms still complained of at the time of 
 
         hearing.  Dr. Bashara rated claimant's permanent partial 
 
         impairment of the upper left extremity at five percent due to the 
 
         carpal tunnel syndromes which is the same opinion expressed by 
 
         Dr. Grundberg.  Under Iowa Code section 85.34(2)(s), claimant is 
 
         entitled to compensation on the basis of 500 weeks for the 
 
         residuals of impairment to two major members.  Based upon the 
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC.
 
         Page   6
 
         
 
         foregoing evidence, it is determined Dr. Bergman's opinion is 
 
         entitled to greater weight and that claimant has sustained a five 
 
         percent permanent partial impairment to two major members and is 
 
         awarded 25 weeks of permanent partial disability benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following facts are found:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment December 13, 1984 which resulted in 
 
         bilateral carpal tunnel surgery.
 
         
 
              2.  Claimant's work injury was caused by his employment.
 
         
 
              3.  Claimant has a permanent partial impairment of five 
 
         percent to two major members as a result of the work injury.
 
         
 
              4.  Claimant's disability is to a scheduled member.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              Claimant has established his work injury is the cause of a 
 
         permanent impairment of five percent to two major members 
 
         entitling him to 25 weeks of permanent partial disability 
 
         benefits pursuant to Iowa Code section 85.34(2)(s).
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay until claimant twenty-five (25) weeks 
 
         of permanent partial disability benefits at a rate of one hundred 
 
         ninety-two and 31/100 dollars ($192.31) per week commencing April 
 
         21, 1985.
 
         
 
              Defendants shall receive full credit for all permanent 
 
         partial disability benefits previously paid.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              A claim activity report shall be filed upon payment of this 
 
         award.
 
         
 
              Costs of this action are assessed against the defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 26th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC.
 
         Page   7
 
         
 
                                           DEBORAH A. DUBIK
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Marvin Duckworth
 
         Attorney at Law
 
         Terrace Center, Suite 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                       1803
 
                                                       Filed 2-26-88
 
                                                       Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LEONARD PEARSON,
 
         
 
              Claimant,
 
                                                     File No. 783442
 
         VS.
 
         
 
         IOWA CONCRETE PRODUCTS INC.,             A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant sustained an injury arising out of and in the 
 
         course of his employment resulting in bilateral carpal tunnel 
 
         surgery.  Medical evidence established causation.  Claimant found 
 
         to have a permanent partial impairment of five percent to two 
 
         major members.  Award made under Iowa Code section 85.34(2)(s).
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL W. COX,
 
         
 
              Claimant,                             File No. 783504
 
         
 
         vs.                                          A P P E A L
 
         
 
         D. C. TAYLOR CO.,                            R U L I N G
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      MAR 25 1988
 
         CIGNA INSURANCE COMPANY,
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
              Division of Industrial Services Rule 343-4.27 states in 
 
              part:
 
         
 
                   No appeal shall be separately taken under this or 4.25 
 
              (17A, 86) from an interlocutory decision, order or ruling of 
 
              a deputy industrial commissioner.  A decision, order or 
 
              ruling is interlocutory if it does not dispose of the 
 
              contested case, unless the sole issue remaining for 
 
              determination is claimant's entitlement to additional 
 
              compensation for unreasonable denial or delay of payment 
 
              pursuant to Iowa Code section 86.13.
 
         
 
              The ruling filed March 8, 1988, which is the subject matter 
 
         of this appeal, is not dispositive of the contested case and 
 
         therefore interlocutory.
 
         
 
              THEREFORE, the appeal filed March 11, 1988 is hereby 
 
         dismissed.
 
         
 
         
 
              Signed and filed this 25th day of March, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Gillespie
 
         Attorney at Law
 
         417 First Avenue, S.E.
 
                                                
 
                                                         
 
         P.O. Box 2819
 
         Cedar Rapids, Iowa  52406-2819
 
         
 
         Mr. E. J. Giovannetti
 
         Ms. Valerie A. Fandel
 
         Attorneys at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
 
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         AL WEILAND,
 
         
 
         Claimant,
 
         
 
         VS.
 
                                         File No. 783580
 
         
 
         FLOYD SWANSON,
 
                                         A P P E A L
 
         
 
              Employer,
 
                                           D E C I S I 0 N
 
         and
 
         
 
         FARM BUREAU MUTUAL INS. CO.,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              The Second Injury Fund of Iowa appeals from an arbitration 
 
         decision awarding permanent partial disability benefits as the 
 
         result of an alleged injury on December 24, 1984.  The record on 
 
         appeal consists of the transcript of the arbitration proceeding 
 
         and joint exhibits 1 through 13.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                      ISSUES
 
         
 
              .I. Claimant is not entitled to assert and recover against 
 
         the Fund for more than two separate scheduled injuries.
 
         
 
              II. Claimant has failed to allege a qualifying first injury.
 
         
 
              III. Claimant suffers from very little, if any, industrial 
 
         disability.
 
         
 
              IV. Claimant's industrial disability, if any, must be 
 
         apportioned between his "first" and his "second" injuries.
 
         
 
         
 
         
 
         WEILAND v. FLOYD SWANSON
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              Defendant Second Injury Fund of Iowa's first issue on appeal 
 
         urges that claimant is prohibited from asserting more than one 
 
         prior loss for purposes of establishing second injury fund 
 
         liability.  The Second Injury Fund argues that claimant is 
 
         required to assert one, and only one, previous loss under Iowa 
 
         Code section 85.64.
 
         
 
              Initially, it is noted that the record shows that claimant 
 
         is in fact relying on only one previous loss.  The medical 
 
         evidence establishes that claimant's 1980 injury was an 
 
         aggravation of his high school football injury.  K. M. Keane, 
 
         M.D., testified that after the 1980 injury, claimant's left knee 
 
         returned to its pre-injury state.  Claimant's 1980 injury was a 
 
         temporary aggravation of his 1966 high school football injury to 
 
         his left knee.  Claimant's 1966 left knee injury is a previous 
 
         loss for purposes of section 85.64.
 
         
 
              However, even if claimant had asserted two injuries prior to 
 
         the December 24, 1984 injury, this would not have precluded 
 
         second injury fund liability.  See Shank v. Mercy Hospital 
 
         Medical Center, (Appeal Decision, August 28, 1989);
 
         
 
              The Second Injury Fund next argues that claimant has failed 
 
         to allege a qualifying first injury.  The Second Injury Fund here 
 
         acknowledges the temporary nature of claimant's 1980 aggravation 
 
         of his left knee condition, and correctly points out that a 
 
         temporary aggravation cannot serve as a previous loss under 
 
         section 85.64.  The Second Injury Fund alleges that the deputy 
 
         improperly "lumped together" the 1966 left knee injury and the 
 
         1980 aggravation of that injury.  As previously determined, the 
 
         1980 aggravation was temporary in nature and did not permanently 
 
         increase claimant's impairment.  The deputy determined that 
 
         claimant had a 15 percent impairment of his left lower extremity, 
 
         based on the rating by Keith 0. Garner, M.D. Although the deputy 
 
         did state that both the 1966 football injury to the left knee and 
 
         the 1980 aggravation of the knee would constitute the "first" 
 
         injury for purposes of section 85.64, the deputy clearly 
 
         considered the temporary nature of the 1980 incident.  The deputy 
 
         quoted Dr. Keane in the decision as follows:
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         WETLAND v. FLOYD SWANSON 
 
         Page 3
 
         
 
         
 
              Findings at the time showed evidence of old injury with 
 
              atrophy, instability on clinical examination and definite 
 
              degenerative changes already present in the knee with loose 
 
              bodies.  All of these were present before the injury of 
 
              January 18, 1980.  I think the injury that occurred at that 
 
              time was simply an aggravation. over the next several months 
 
              he returned to the status which had been present prior to 
 
              January of 1980.  At that time it should be noted that he 
 
              had considerable disability.    (Ex. 1).
 
         
 
         (Arbitration Decision, Page 5)
 
         
 
              Even if the 1980 injury had permanently increased claimant's 
 
         impairment, the deputy would have been correct to assess 
 
         claimant's disability resulting from the combination of the two 
 
         injuries.  The deputy is obligated to make a determination of the 
 
         extent of claimant's disability prior to the "second" injury, 
 
         regardless of the number of injuries or other events that 
 
         contributed to that disability.
 
         
 
              The Second Injury Fund next argues that the 1966 football 
 
         injury to the left knee standing alone also does not serve as a 
 
         qualifying "first" injury.  The Second Injury Fund points out 
 
         that claimant was able to continue in sports and in school after 
 
         that incident, and later was able to obtain employment dbing farm 
 
         work and continues to perform farm work to this day.  The Second 
 
         Injury Fund states that claimant is required to show a 
 
         substantial handicap, and points out that claimant's ratings of 
 
         physical impairment from his left knee injury is much less than 
 
         the 90 percent rating in Irish v. McCreary Sawmill, 175 N.W.2d 
 
         364 (Iowa 1970).  However, a prior ruling of this agency 
 
         establishes that the Irish case does not require a minimum of 90 
 
         percent functional impairment in the first scheduled loss to 
 
         trigger second injury fund liability.  McCoy v. Donaldson Company
 
         , (Appeal Decision, April 28, 1989).
 
         
 
              Claimant's ability to return to employment and other 
 
         physical activities after suffering his injury does not preclude 
 
         the existence of a physical impairment as a result of the injury.  
 
         The Second Injury Fund improperly focuses on one factor of 
 
         industrial disability, claimant's earnings after an injury, to 
 
         the exclusion of the other factors and in disregard of the 
 
         medical evidence in the record, which shows that claimant has 
 
         suffered a 15 percent permanent partial impairment of his left 
 
         lower extremity.  This opinion is uncontroverted in the record, 
 
         yet the Second Injury Fund maintains that claimant's 1966 injury 
 
         produced no impairment merely because claimant was still able to 
 
         obtain employment.  Claimant is not required to show that his 
 
         "first" injury rendered him totally unemployable.  He is merely
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WEILAND v. FLOYD SWANSON
 
         Page 4
 
         
 
         
 
         required to show that it produced some degree of permanent 
 
         impairment to a scheduled member.
 
         
 
              The Second Injury Fund's third issue on appeal concerns the 
 
         extent of claimant's industrial disability.  In this regard, the 
 
         analysis of the deputy is adopted.  The deputy properly 
 
         considered all of the factors involved in determining industrial 
 
         disability and the determination of 35 percent industrial 
 
         disability is approved.  Again, the Second Injury Fund focuses on 
 
         one factor, claimant's earnings after the injury, to the 
 
         exclusion of the other factors that determine industrial 
 
         disability.
 
         
 
              The Second Injury Fund's final argument on appeal has been 
 
         resolved by Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 
 
         1989).
 
         
 
              1. Claimant sustained a 15 percent permanent functional 
 
         impairment to the left leg due to the first injury, which 
 
         occurred in 1966, and was temporarily aggravated again in 1980.
 
         
 
              2. Claimant sustained a 20 percent permanent functional 
 
         impairment rating of the right leg due to the injury of December 
 
         24, 1984, when his clothing became entangled in the beaters of 
 
         the silage wagon which were connected to the power take off on 
 
         the tractor.
 
         
 
              3. Claimant sustained a 35 percent industrial disability to 
 
         the body as a whole as a result of the combined effects of both 
 
         scheduled member injuries above.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant is entitled to 44 weeks of permanent partial 
 
         disability benefits from employer for the injury to the right leg 
 
         on December 24, 1984.
 
         
 
              Claimant is entitled to 98 weeks of permanent partial 
 
         disability from the Second Injury Fund of Iowa.
 
         
 
              Iowa Code section 85.64 does not prohibit the utilization of 
 
         two prior injuries for purposes of determining Second Injury Fund 
 
         liability.
 
         
 
              Claimant has alleged a qualifying previous injury for 
 
         purposes of Iowa Code section 85.64.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WEILAND v. FLOYD SWANSON
 
         Page 5
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant employer pay forty-four (44) weeks of 
 
         permanent partial disability benefits to claimant at the rate of 
 
         one hundred sixty-nine and 45/100 dollars ($169.45) per week in 
 
         the total amount of seven thousand four hundred fifty-five and 
 
         80/100 dollars ($7,455.80) commencing on May 21, 1985.
 
         
 
              That the Second Injury Fund of Iowa pay to claimant 
 
         ninety-eight (98) weeks of permanent partial disability at the 
 
         rate of one hundred sixty-nine and 45/100 dollars ($169.45) per 
 
         week in the total amount of sixteen thousand six hundred six and 
 
         10/100 dollars ($16,606.10) commencing on March 25, 1986, 
 
         immediately after the employer's last payment of permanent 
 
         partial disability benefits.
 
         
 
              That defendant employer is entitled to a credit for 
 
         thirty-five point two (35.2) weeks of permanent partial 
 
         disability paid prior to hearing at the rate of one hundred 
 
         sixty-nine and 45/100 dollars ($169.45) per week in the total 
 
         amount of five thousand nine hundred sixty-four and 64/100 
 
         dollars ($5,964.64).
 
         
 
              That these amounts are to be paid in a lump sum.
 
         
 
              That the interest obligation of the employer will accrue 
 
         pursuant to Iowa Code section 85.30.
 
         
 
              That the costs of this action are to be divided equally 
 
         between employer and the Second Injury Fund of Iowa pursuant to 
 
         Division of Industrial Services Rule 343-4.33. The costs of the 
 
         appeal will be paid by the Second Injury Fund.
 
         
 
              That both defendants file claim activity reports as required 
 
         by this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 29th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         WEILAND v. FLOYD SWANSON
 
         Page 6
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Steve Hamilton
 
         Attorney at Law
 
         P.O. Box 188
 
         Storm Lake, Iowa 50588
 
         
 
         Mr. Paul W. Deck, Jr.
 
         Attorney at Law
 
         635 Frances Bldg.
 
         Sioux City, Iowa 51101
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-3203
 
                                         Filed December 29, 1989
 
                                         David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         AL WEILAND,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                          File No. 783580
 
         FLOYD SWANSON,
 
                                         A P P E A L
 
              Employer,
 
                                          D E C I S I 0 N
 
         and
 
         
 
         FARM BUREAU MUTUAL INS. CO.,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         
 
         5-3203
 
         
 
              Affirmed deputy's determination on appeal that claimant, 
 
         with a high school football injury and a later temporary 
 
         aggravation of that injury, had shown a qualifying "first" injury 
 
         for purposes of Second Injury Fund liability.  Rejected Second 
 
         Injury Fund's argument that claimant is restricted to showing 
 
         only one prior injury, citing Shank v. Mercy Hospital Medical 
 
         Center, (Appeal Decision, August 28, 1989); also Second Injury 
 
         Fund's argument that claimant's first injury must result in at 
 
         least 90 percent impairment, citing McCoy v. Donaldson 
 
         Company, (Appeal Decision, April 28, 1989); and Second Injury 
 
         Fund's argument that claimant's industrial disability must be 
 
         apportioned between his first and second injury, citing Second 
 
         Iniury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989).
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ALLEN WEILAND,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No.  783580
 
         FLOYD D. SWANSON,
 
                                              A R B I T R A T I O N
 
              Employer,
 
                                                 D E C I S I O N
 
         and
 
         
 
         FARM BUREAU MUTUAL INSURANCE
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Allen 
 
         Weiland, claimant, against Floyd D. Swanson, employer, Farm 
 
         Bureau Mutual Insurance Company, insurance carrier and the Second 
 
         Injury Fund of Iowa, defendants, for benefits as the result of an 
 
         injury which occurred on December 24, 1984.  A hearing was held 
 
         in Storm Lake, Iowa on September 1, 1987, and the case was fully 
 
         submitted at the close of the hearing.  The record consists of 
 
         the testimony of Allen Weiland (claimant), Debbie Weiland 
 
         (claimant's wife), Dale M. Sleezer, Jr. (current employer) and 
 
         Joint Exhibits 1 through 13.  All of the attorneys submitted 
 
         excellent briefs.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on December 24, 1984, 
 
         which arose out of and in the course of employment with 
 
         employer.
 
         
 
              That the injury was the cause of both temporary and 
 
         permanent disability.
 
         
 
              That claimant is entitled to and has been paid healing 
 
         period benefits for the period from December 24, 1984 through May 
 
         20, 1985.
 
         
 
              That the type of permanent disability, is scheduled member 
 
         disability to the right leg.
 
         
 
              That the commencement date for permanent partial disability 
 

 
         
 
         
 
         
 
         WEILAND V. FLOYD D. SWANSON
 
         PAGE   2
 
         
 
         
 
         benefits, in the event such benefits are awarded, is May 21, 
 
         1985.
 
         
 
              That the rate of compensation, in the event of an award of 
 
         benefits, is $169.45 per week.
 
         
 
              That all requested medical benefits have been or will be 
 
         paid by defendant employer and insurance carrier.
 
         
 
              That no claim is made for credits pursuant to Iowa Code 
 
         section 85.38(2) for previous payment of nonoccupational group 
 
         health plan benefits.
 
         
 
               That defendant employer and insurance carrier are entitled 
 
         to a credit for 35.2 weeks of permanent partial disability 
 
         benefits paid prior to the hearing at the rate of $169.45 per 
 
         week.
 
         
 
              That mere are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant is entitled to weekly compensation for 
 
         permanent partial disability benefits, and if so, the extent of 
 
         entitlement.
 
         
 
              Whether claimant is entitled to any compensation from the 
 
         Second Injury Fund of Iowa pursuant to Iowa Code section 85.64, 
 
         and if so, the extent of entitlement.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence:
 
         
 
              Claimant was born on April 26, 1951, at Storm lake, Iowa.  
 
         In August of 1966, when claimant was 15 years old, he injured his 
 
         left knee.  Claimant testified that his left knee popped out 
 
         while doing football warm-ups.  Claimant saw Dr. Cornish (full 
 
         name unknown), in Storm Lake, who aspirated fluid from his left 
 
         knee two or three times a week.  Dr. Cornish has since moved to 
 
         Florida and claimant's records could not be obtained from him.  
 
         Claimant testified that his left knee popped out on other 
 
         occasions in his freshman and sophomore years of high school.  
 
         Claimant related that he wore a knee brace, which was a leather 
 
         strap with iron on the sides, prescribed by Dr. Cornish.  
 
         Claimant testified that he was not hospitalized, did not receive 
 
         surgery and did not miss any school due to his left knee injury.  
 
         In his sophomore year, claimant said that he played basketball 
 
         and baseball with a knee brace.  In the summer he said that he 
 
         walked beans and worked with cows without the use of a knee 
 
         brace.
 
         
 
              Claimant graduated from high school in 1970.  He has not 
 
         received any additional education or training since then.  He 
 
         said that he tried to enlist in the army for Viet Nam in 1971, 
 
         but was rejected because of a nasal problem and because of his 
 
         left knee.
 
         
 
              Claimant's first job after high school was picking up 
 

 
         
 
         
 
         
 
         WEILAND V. FLOYD D. SWANSON
 
         PAGE   3
 
         
 
         
 
         garbage barrels and throwing them onto a truck for the sanitation 
 
         department of the city of Storm Lake.  He then worked as a farm 
 
         hand and as a ranch hand for a number of farmers and ranchers.  
 
         His duties as a farm hand involved farming row crops with a 
 
         tractor and raising and feeding livestock.  His duties as a ranch 
 
         hand involved riding horseback as a cowboy, making hay, fixing 
 
         fences and driving a pickup truck.  Claimant testified that he 
 
         typically worked 50 to 60 hours a week and walked a mile and a 
 
         half a day.  Claimant added that he also played baseball in the 
 
         city baseball and softball league.  Claimant indicated that he 
 
         had no trouble with his left knee during any of his employments 
 
         or while playing baseball.
 
         
 
              Claimant started to work for this employer in September of 
 
         1978 as a farm hand.  Claimant was injured twice while working 
 
         for this employer.  The first injury occurred January 18, 1980, 
 
         when he was 28 years old.  While dismounting a tractor, his foot 
 
         got caught and he fell and aggravated the football injury to his 
 
         left knee.  No current claim is made against this employer for 
 
         this injury at this time.  The significance of this injury is 
 
         that this injury of January 18, 1978, along with the 1966 
 
         football injury, serve as the first injury for possible Second 
 
         Injury Fund liability in this case.
 
         
 
              Employer sent claimant to a local doctor who in turn 
 
         referred claimant to K. M. Keane, M.D., a orthopedic surgeon in 
 
         Sioux City, Iowa.  Dr. Keane saw claimant on four 
 
         occasions--January 24, 1980, February 19, 1980, March 19, 1980 
 
         and July 15, 1980.
 
         
 
              On January 24, 1980, claimant reported to Dr. Keane that he 
 
         has a "trick knee" which has been giving away since high school 
 
         football, but it had not been this bad before.  Claimant then 
 
         related to Dr. Keane that he reinjured the left knee when he fell 
 
         off a tractor on January 18, 1980.  Dr. Keane noted:  (1) the 
 
         swelling had improved; (2) but claimant had palpable osteophytes 
 
         on the medial side of the left knee; (3) soreness in the 
 
         popliteal area; (4) restriction of motion to 30 degrees of 
 
         flexion; and (5) left quadriceps atrophy.  Dr. Keane concluded 
 
         his report of this office visit as follows:
 
         
 
              X-rays show moderately severe degenerative arthritis 
 
              along the medial side of the knee joint with osteophyte 
 
              formation and joint narrowing.  There are also present, 
 
              multiple loose bodies which looks like they are medial 
 
              and posterior.  He has never had symptoms to suggest 
 
              loose bodies and the position is such to suggest they 
 
              are outside the joint space as in the popliteal bursa.  
 
              There is also patello-femoral spurring.
 
         
 
              This young man has evidence of considerable arthritis 
 
              in the knee.  He and his wife are advised he has a knee 
 
              which is a problem knee and it has been for a while and 
 
              he has now re-injured the knee.  From a compensation 
 
              standpoint, should surgery be necessary, it would be 
 
              from old injury and I do not believe any part of the 
 
              surgery would be for treatment of this more recent 
 
              injury.  His present symptoms are due to the injury but 
 
              the x-ray findings are not new.  He is specifically 
 
              instructed in quadriceps setting and progressive 
 
              resistance quadriceps exercises to be done from the 
 
              extended position, thirty repetitions of motion with as 
 
              much weight as he can lift five times each day.  He is 
 

 
         
 
         
 
         
 
         WEILAND V. FLOYD D. SWANSON
 
         PAGE   4
 
         
 
         
 
              to use warm wet packs and aspirin symptomatically.  May 
 
              return to work.  Return here in four weeks (no date on 
 
              slip).
 
         
 
         (Exhibit 8, page 1)
 
         
 
              On February 19, 1980, Dr. Keane found that claimant was 
 
         doing well.  On March 18, 1980, Dr. Keane considered surgery on 
 
         the left knee, but claimant was not interested in surgery at that 
 
         time,.
 
         
 
              ...x-rays show spurring of the knee cap and medial side 
 
              of the joint.  I suspect he has a tear of the medial 
 
              meniscus.  He says he is feeling very good now and 
 
              feels he is about where he was prior to this last 
 
              injury.  He is working.  If he should have more trouble 
 
              with the knee he will need an arthrogram and 
 
              considerations of surgery.  He has a problem knee and 
 
              would not have a normal knee even with surgery which he 
 
              understands but I would expect symptoms would be 
 
              improved if he were having enough trouble.  He is not 
 
              interested in surgery at this time.  I would not 
 
              recommend he play soft ball.  Return 7/22/80.
 
         
 
         (Ex. 8, p, 2)
 
         
 
              On July 15, 1980, at the time of Dr. Keane's final 
 
         examination on his left knee, the doctor expected the knee to get 
 
         worse, but agreed to let claimant continue to work without 
 
         surgery as long as he could do it.
 
         
 
              7/15/80 OV * Doing what he wants to do and getting 
 
              along reasonably well.  He is working.  He is advised I 
 
              do expect this knee will wear out as time goes on but 
 
              if he feels he is getting along well enough, he may 
 
              continue as he has been doing.  He is not interested in 
 
              surgery at this time.  He does have a mildly positive 
 
              anterior Drawer test.  No effusion.  Does have 
 
              quadriceps atrophy.  Call if he has more trouble.
 
         
 
         (Ex. 8, p. 2)
 
         
 
              Claimant testified that Dr. Keane told him:  (1) to take it 
 
         easy with he left knee; (2) no running; (3) no lifting heavy 
 
         stuff; and (4) to refrain from playing softball and basketball.  
 
         Claimant confirmed that Dr. Keane recommended surgery, but that 
 
         he could not afford to take time off for it at that time.  
 
         Claimant testified at this hearing, that he still did not think 
 
         that his left knee was bad enough yet for surgery.
 
         
 
              Dr. Keane did not award a specific numerical permanent 
 
         functional impairment rating for the left knee.  However, on 
 
         November 13, 1986, Dr. Keane did briefly summarize the status of 
 
         the left knee and remarked that claimant had "considerable 
 
         disability".  The full context of that remark is as follows:
 
         
 
              I have reviewed the chart on this man.  Copies of the 
 
              chart are enclosed.  As you can see from the problems 
 
              in 1980, he has had trouble with his knee since high 
 
              school days.  In 1980 he had a fall from a tractor.
 
         
 
              Findings at the time showed evidence of old injury with 
 
              atrophy, instability on clinical examination and 
 

 
         
 
         
 
         
 
         WEILAND V. FLOYD D. SWANSON
 
         PAGE   5
 
         
 
         
 
              definite degenerative changes already present in the 
 
              knee with loose bodies.  All of these were present 
 
              before the injury of January 18, 1980.  I think the 
 
              injury that occurred at that time was simply an 
 
              aggravation.  Over the next several months he returned 
 
              to the status which had been present prior to January 
 
              of 1980.  At that time it should be noted that he had 
 
              considerable disability.
 
         
 
         (Ex. 1)
 
         
 
              The only numerical impairment rating given for the left knee 
 
         was male by Keith O. Garner, M.D., on December 17, 1986.
 
         
 
              Al Weiland was examined in my office 11-25-86.  His 
 
              history is as already documented.  He suffered an 
 
              injury to his left knee 2 or 3 years ago when he fell 
 
              off a tractor.  He also has an injury to his right 
 
              knee.  He complains of pain in his left knee and states 
 
              it locks up at times and he is unable to walk.  
 
              Examination of the left lower extremities reveals no 
 
              muscle atrophy.  He has approximately 20 degrees 
 
              reduction in flexion of the knee and approximately 10 
 
              degrees reduction in extention [sic].  He is unable to 
 
              completely extent [sic] it.  There is some pain with 
 
              lateral movement of the ligaments with slight 
 
              instability of the joint.  Theres [sic] slight swelling 
 
              of the posterior knee space.  Crepitation is noted in 
 
              the cartlidge [sic] with flexion and extention [sic] of 
 
              the lower extremity.  His permanent partial disability 
 
              of the left lower extremity is 15%.
 
         
 
         (Ex. 9)
 
         
 
              Dr. Garner is the only physician to numerically rate the 
 
         left lower extremity.
 
         
 
              The second time that claimant was injured working for this 
 
         employer occurred on December 24, 1984.  The amount of disability 
 
         for which this employer is liable, if any, is an issue in this 
 
         case at this time.  Also, this injury serves as the second injury 
 
         in the determination of possible Second Injury Fund liability in 
 
         this case at this time.
 
         
 
              On December 24, 1984, claimant wanted to be done by 4:00 
 
         p.m., so he started feeding cattle at 2:00 p.m., from a silage 
 
         wagon that has three beaters that mix the silage.  Claimant 
 
         testified that the temperature was approximately 10 to 15 degrees 
 
         below zero.  Claimant related that the wagon stopped feeding out 
 
         the silage because a chain came off.  The chain and the beaters 
 
         were powered by and connected to a power takeoff on a tractor.  
 
         Claimant got in the wagon to kick the chain over, slipped on the 
 
         floor, one of the beaters grabbed his coveralls and started to 
 
         draw him into the beaters.  The beaters chewed up his right leg 
 
         and ankle.  Claimant grabbed the beater with his hands and with 
 
         his own strength was able to shear the bolt and stop the moving 
 
         action of the beater.  Claimant said that he cut his clothes 
 
         loose from the beaters with a pair of pliers.  His ankle was 
 
         flopping and he could not stand on it.  Nevertheless, he shut the 
 
         tractor off, then crawled until somebody saw him and took him for 
 
         emergency medical treatment at the Cherokee Hospital.  Claimant 
 
         was transferred to the Marion Health Center in Sioux City, where 
 
         he was again treated by Dr. Keane for injuries to both of his 
 

 
         
 
         
 
         
 
         WEILAND V. FLOYD D. SWANSON
 
         PAGE   6
 
         
 
         
 
         legs from the beaters.  Dr. Keane was again the sole treating 
 
         physician for the second injury also.  Dr. Keane described 
 
         claimant's injuries on the hospital admissions notes as follows:
 
         
 
              Has a gouging type of a wound in the lateral left 
 
              thigh.  The major wounds are on the right leg, and 
 
              foot.  These were, of course, sustained by an auger.  
 
              They are ragged wounds.  He has a couple of smaller 
 
              wounds anterior and medially over the right knee.  Has 
 
              a severe calf wound on the medial side of the leg, with 
 
              quite obvious, severe muscle damage, with ragged muscle 
 
              surface.  This is roughly about 3x4 inches.  Then, 
 
              there is another wound, curving around the medial 
 
              malleolus and there is also a longitudinal wound, a 
 
              couple inches in length, and again, a rough, irregular 
 
              type wound on the plantar aspect of the foot.  Films 
 
              show a fracture high in the fibula, but no other 
 
              fractures.  It looked at first like a fracture of the 
 
              posterior malleolus of the tibia, but additional films 
 
              showed that this is not true.
 
         
 
         
 
              ADMISSION DIAGNOSIS:
 
         
 
              Auger injuries, both legs, with a wound on the lateral 
 
              left thigh, and severe wounds with associated high 
 
              fibular fracture, left leg.
 
         
 

 
         
 
         
 
         
 
         WEILAND V. FLOYD D. SWANSON
 
         PAGE   7
 
         
 
         
 
              Arrangements were made for emergency surgery.
 
         
 
         (Ex. 3)
 
         
 
              Claimant actually had three surgeries.  The first one was 
 
         performed on December 26, 1984; the second one was performed on 
 
         December 28, 1984 and the third one was performed on December 31, 
 
         1984.  In the course of these surgeries, the wounds were 
 
         irrigated and debrided, a fasciotomy of the posteromedial fascia 
 
         was performed on the right leg, the right ankle dislocation was 
 
         reduced and the ligaments were positioned for healing around the 
 
         ankle, the wounds were closed, splints were applied and a split 
 
         thickness skin graft to the posteromedial wound in the right calf 
 
         was performed using the left thigh as a donor area.  Claimant 
 
         also had a compound fracture of the left tibia treated at that 
 
         time (Exs. 4, 5 & 6).
 
         
 
              Claimant was discharged from the hospital on January 8, 
 
         1985, in a cast from his right foot up to his right thigh which 
 
         he wore for three months.  Then he wore a cast below his knee on 
 
         the right leg for two weeks.  Claimant returned to work on May 
 
         21, 1985.  He worked half days for a few weeks and then returned 
 
         to full-time duty after that.  Claimant worked for this employer 
 
         until August of 1985.  He was laid off at that time because the 
 
         financial condition of the employer did not permit him to retain 
 
         the employee.
 
         
 
              On August 5, 1985, Dr. Keane recorded that claimant could 
 
         not run, but that he could do most of his work.  An avulsed 
 
         fragment was still ununited from the medial malleolus.  There was 
 
         a palpable defect of the fascia lata in the left thigh.  There 
 
         was limitation of motion of the subpatellar joint motion.  
 
         Dorsiflexion and plantar flexion were restricted.  Dr. Keane 
 
         commented that the split thick skin graft and adherent skin could 
 
         be a problem in future years.  The doctor noted that claimant 
 
         could have a problem standing on cement all day.  Claimant was 
 
         directed to continue heal and toe exercises.  Dr. Keane noted 
 
         that he did not anticipate any disability to the left leg as a 
 
         result of this injury but said that claimant would have permanent 
 
         disability to the right leg.  Dr. Keane said that claimant's 
 
         activities were not restricted at that time (Ex. 2, p. 2).
 
         
 
              Dr. Keane examined claimant again much later on January 6, 
 
         1986.  He said claimant still had a problem with his right ankle. 
 
          Claimant was directed to continue his exercises.  Dr. Keane 
 
         concluded this report as follows:
 
         
 
              X-rays show periosteal elevation medial distal tibia.  
 
              Fibula is healed with bayonette apposition.  Ankle 
 
              mortise looks stable but calcified area medial side of 
 
              the ankle.
 
         
 
              For the injury he had, he is doing well.  He says he 
 
              was unable to get work at different places because of 
 
              this injury however and is working now at Van Top 
 
              making doors but says they are cutting back and he is 
 
              working every other day.
 
         
 
              With the injury to the ankle and leg and skin graft, I 
 
              would extimate [sic] and [sic] permanent disability of 
 
              ten percent (10%) to the leg as the result of this 
 
              accident.
 
         
 

 
         
 
         
 
         
 
         WEILAND V. FLOYD D. SWANSON
 
         PAGE   8
 
         
 
         
 
         (Ex. 2, p. 3)
 
         
 
              Dr. Keane did not explain how or why he arrived at a ten 
 
         percent evaluation.  Dr. Keane did add in a letter dated November 
 
         20, 1986, that the injuries of December 24, 1984 were "quite 
 
         extensive" and that claimant had encountered "considerable injury 
 
         here" (Ex. 1).
 
         
 
              A. J. Wolbrink, M.D., an orthopedic surgeon, examined and 
 
         evaluated claimant as an independent medical examiner at the 
 
         request of claimant's counsel and made a report on April 21, 
 
         1986.
 
         
 
              An x-ray was obtained of the lower leg, which showed 
 
              the tibia to be well healed and in anatomic alignment. 
 
              the fibula fracture was well healed in bayonette 
 
              apposition on the AP view.  The ankle did show some 
 
              calcification or irregularity between the talus and 
 
              medial malleolus.
 
         
 
              Mr. Weiland has a well healed open fracture of the 
 
              distal tibia and fibula with apparent ankle injury was 
 
              well.  In my opinion he has a permanent impairment of 
 
              22% of the right lower extremity due to the residual 
 
              loss of motion in the foot and subtalar joint and 
 
              weakness.  This is using the AMA Guides to the 
 
              Evaluation of Permanent Impairment, Second Edition.  He 
 
              also has some suggestion of early post-traumatic 
 
              arthritis in the ankle about the medial malleolus on 
 
              x-ray.  This may be progressive in the future to a 
 
              certain degree.
 
         
 
         (Ex. 10. p. 2)
 
         
 
              Claimant testified that he applied for jobs at I.B.P. and 
 
         D.O.T.  Claimant testified that he disclosed these injuries on 
 
         these employment applications and that no jobs or interviews 
 
         developed.  He did obtain a job for V.T.I. (Van Top Industries) 
 
         making van tops and counter tops.  This job caused swelling in 
 
         his right ankle from standing and caused pain in his left knee 
 
         from lifting.
 
         
 
              On March 1, 1986, claimant testified that he went to work 
 
         for Dale Sleezer as a farm hand.  He works 50 to 60 hours a week. 
 
          He starts at 7:00 a.m. and works until 6:00 p.m. or later caring 
 
         for 2,000 to 3,000 hogs, farming row crops and maintaining 
 
         equipment.  Claimant added that as a farm hand he can also weld, 
 
         drive truck and perform carpentry and mechanical work.
 
         
 
              Claimant testified that he is still required to perform heel 
 
         and toe exercises everyday for his ankle to remain functional.  
 
         He was forced to discontinue his left knee exercises with the 
 
         weights because they caused his knee to pop out.  His left knee 
 
         still gives him pain if he walks a mile and he has to be very 
 
         careful with his left knee in everything that he does.  Although 
 
         claimant has endured a lot of pain he has declined medication for 
 
         pain because he does it not believe in it.
 
         
 
              Claimant testified that both of his legs ache and interrupt 
 
         his sleep at night.  He goes from the bed, to the floor, to the 
 
         couch, to the chair in order to get comfortable.  He sleeps three 
 
         to four hours per night, usually from approximately 2:00 a.m. to 
 
         5:00 a.m.  He is unable to play football, basketball or softball 
 

 
         
 
         
 
         
 
         WEILAND V. FLOYD D. SWANSON
 
         PAGE   9
 
         
 
         
 
         or go coon hunting with his children.  Claimant said he cannot 
 
         walk more than a mile or stand in one place for longer than two 
 
         hours without pain.  Claimant testified that there is a water 
 
         pocket that has developed on his right ankle.  If he hits it, it 
 
         hurts.  Claimant also testified and demonstrated that there is no 
 
         lateral movement in his right ankle from side to side.  Claimant 
 
         said that if he squats or kneels, then his left knee "clicks or 
 
         pops" and he gets a sharp pain behind the left knee.  If he walks 
 
         on rough ground it causes pain to his left knee.  Claimant said 
 
         that his left knee has gotten worse but he is still not ready for 
 
         surgery on it.  He states that he wears an elastic bandage to 
 
         support his left knee.
 
         
 
              Claimant exposed the posteromedial left calf wound at the 
 
         hearing showing the apparent 3 x 4 inch avulsed skin grafted area 
 
         (Exs. 12 & 13).  Claimant said that sometimes the skin breaks 
 
         open and the wound drains.  Both his right ankle and his left 
 
         knee cause him to limp.  Claimant said that he can no longer work 
 
         outside in extremely cold weather, when the temperature is zero 
 
         or below, due to his left knee and his right ankle.  His right 
 
         foot and ankle have already suffered frost bite on one occasion.
 
         
 
              Claimant granted that Dr. Keane told him to be as active as 
 
         possible, the more the better and to walk a lot.  Claimant 
 
         admitted that after both injuries that he had been able to 
 
         perform farm work on his feet feeding cattle and doing whatever 
 
         he was required to do.  He has been able to do every job that he 
 
         has tried to do.  Claimant conceded that he is making more money 
 
         now from Dale Sleezer than he was being paid by his employer at 
 
         the time of this injury.
 
         
 
              Dale M. Sleezer, Jr., testified that claimant has worked for 
 
         him since March 1, 1986.  Claimant farms row crops, cares for 
 
         2,500 to 3,000 head of hogs, transports animals and performs 
 
         maintenance.  He said that claimant works from 6:00 a.m. until 
 
         6:00 p.m., 7:00 p.m. or 8:00 p.m.  He usually works five and 
 
         one-half days a week.  He added that claimant actually works more 
 
         than is expected from him.  Claimant is a self-starter who works 
 
         without any necessary supervision.  Sleezer testified that he has 
 
         observed that claimant walks with a limp, that claimant cannot 
 
         walk as fast as he can and that claimant has told him that his 
 
         right ankle and left knee do not work right.  However, he added 
 
         that claimant does not complain about it.  The witness said that 
 
         he has to question claimant to get information out of him about 
 
         his injuries.  Sleezer said that he tries to arrange jobs to 
 
         accommodate claimant's injuries.  Sleezer said that claimant has 
 
         not missed any time from work.
 
         
 
              Debbie Weiland, claimants wife, testified that claimant was 
 
         modest in describing his problems.  She said he has not slept 
 
         well for two years.  He has a dull ache in his left knee and his 
 
         right ankle all of the time.  He limps due to the laceration he 
 
         got on the bottom of his right foot from the silage wagon 
 
         beaters.  After claimant works two or three hours around the 
 
         house his right ankle swells up.  She testified that she has seen 
 
         the water sack that forms on his right ankle.  To her, it looks 
 
         like a balloon full of water.  His right ankle is swollen at the 
 
         end of every day.  She has seen the wound in the right leg bleed 
 
         when the skin graft breaks.  She said claimant is opposed to 
 
         strong medication and that he has a greater pain tolerance than 
 
         most people.  He does not want surgery on his left knee if he can 
 
         avoid it and he almost has to be forced to go to see the doctor.
 
         
 

 
         
 
         
 
         
 
         WEILAND V. FLOYD D. SWANSON
 
         PAGE  10
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              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).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              The injury to the left knee will be considered first.
 
         
 
              The evidence in the record supports the conclusion that the 
 
         left knee injury is a significant and very troublesome injury on 
 
         a day to day basis.  Claimant was required to wear a brace on his 
 
         left knee when he was a freshman and sophomore in high school.  
 
         Claimant was rejected by the army for service in Viet Nam 
 
         partially due to his left knee.
 
         
 
              Dr. Keane treated the left knee from January 24, 1980 until 
 
         July 15, 1980, after claimant fell off the tractor and aggravated 
 
         the 1966 football injury.  On January 24, 1980, Dr. Keane 
 
         physically found palpable osteophytes on the medial side of the 
 
         left knee, soreness, restricted flexion and quadriceps atrophy.  
 
         X-rays showed degenerative arthritis, joint narrowing, multiple 
 
         loose bodies and patellofemoral spurring.  Dr. Keane stated that 
 
         this left knee had been a problem for quite awhile.  He 
 
         prescribed exercises five time a day (Ex. 8, p. 1).
 
         
 
              On March 18, 1980, Dr. Keane said that he suspected a tear 
 
         of the medial meniscus and considered surgery.  Dr. Keane added 
 
         however, that even with surgery, claimant would not have a normal 
 
         knee.  He told claimant not to play softball (Ex. 8, p. 2).
 
         
 
              on January 15, 1980, Dr. Keane said that he expected the 
 
         left knee to get worse but agreed to let claimant put off surgery 
 
         if he could get along without it (Ex. 8, p. 2).
 
         
 
              Claimant testified that Dr. Keane told  him (1) to take it 
 
         easy with his left knee; (2) no running; (3) no heavy lifting; 
 
         and (4) to refrain from softball and basketball.  Each of these 
 
         restrictions is certainly consistent with and conforms with the 
 
         information in Dr. Keane's notes and reports.
 
         
 
              Dr. Keane did not designate a specific numerical permanent 
 

 
         
 
         
 
         
 
         WEILAND V. FLOYD D. SWANSON
 
         PAGE  11
 
         
 
         
 
         functional impairment rating for claimant's left leg.  
 
         Nevertheless, he did state in his letter of November 30, 1986, 
 
         that claimant had "considerable disability" in his left knee.
 
         
 
              Dr. Garner found limited range of motion, instability, 
 
         soreness and crepitation.  He designated that claimant had 
 
         sustained a 15 percent permanent functional impairment of the 
 
         left lower extremity (Ex. 9).  Dr. Garner is the only treating 
 
         physician to rate the left leg.  The left leg was injured 
 
         severely again in the December 24, 1984 accident but this injury, 
 
         although serious, apparently did not result in any serious 
 
         permanent disability.  It was the donor site for the skin graft.
 
         
 
              Claimant is required to perform certain exercises each day 
 
         prior to going to work in order to keep his knee functional.  He 
 
         was forced to quit the weight lifting exercises with his left 
 
         knee because it was causing his knee to pop out.  Claimant has to 
 
         be very careful about how he uses his left knee.  If he walks a 
 
         mile it gives him pain.  If he lifts heavy weights it causes pain 
 
         and sometimes it locks up on him.  The pain from simply daily 
 
         work activities wakes him at right. He cannot squat or kneel on 
 
         his left knee.  His left knee clicks and pops and he has pain 
 
         behind the knee.  He currently wears an elastic support on his 
 
         left knee.
 
         
 
              From all of the foregoing evidence it is determined that 
 
         claimant has sustained a 15 percent permanent functional 
 
         impairment of the left leg.
 

 
         
 
         
 
         
 
         WEILAND V. FLOYD D. SWANSON
 
         PAGE  12
 
         
 
         
 
         
 
              The injury to the right leg is considered next.
 
         
 
              Claimant sustained a severe avulsion type of injury to the 
 
         posteromedial calf of his right leg that required three surgeries 
 
         to repair, the final one being a skin transplant from his left 
 
         thigh.  Claimant also sustained a severe right ankle injury with 
 
         residual calcification and irregularity between the talus and 
 
         medial malleolus.  Dr. Keane stated that the avulsed fracture to 
 
         his right ankle did not reunite.  Dorsiflexion and plantar 
 
         flexion of the right ankle are restricted.  The skin graft breaks 
 
         open and bleeds from time to time as Dr. Keane had earlier 
 
         predicted.  Claimant is not able to stand on any type of surface 
 
         for more than two hours without pain in his right ankle.  He is 
 
         forced to perform daily heel and toe exercises in order for his 
 
         right ankle to remain functional at all.
 
         
 
              Dr. Keane rated claimant's right leg with a ten percent 
 
         permanent functional impairment (Ex. 2, p. 3).  Dr. Keane did not 
 
         explain how or why he arrived at a ten percent evaluation.  
 
         However, Dr. Keane also described the injury in his own 
 
         personally chosen words as "quite extensive" and stated that 
 
         there is "considerable injury here" (Ex. 1).  Dr. Keane did not 
 
         mention the AMA Guides so he may have been simply giving an 
 
         opinion without the benefit of any rating guide.
 
         
 
              Dr. Wolbink, although simply an independent evaluator, did 
 
         state that he used the AMA Guides (Guides to the Evaluation of 
 
         Permanent Impairment, second edition, published by the American 
 
         Medical Association).  Dr. Wolbrink.said that claimant sustained 
 
         a 22 percent permanent functional impairment to his right lower 
 
         extremity.  Dr. Wolbrink explained that his rating was based on 
 
         residual loss of motion in the foot and subtalar joint weakness 
 
         (Ex. 10, p.
 
         
 
              Claimant testified that his right ankle swells frequently.  
 
         A water pocket forms on the medial malleolus that is painful if 
 
         it is touched.  Pain in the right ankle disrupts his sleep.  He 
 
         cannot stand in one place for more than two hours without pain.  
 
         Claimant demonstrated and testified that he cannot move his right 
 
         foot laterally, that is from side to side.  He walks with a limp.  
 
         He cannot work for long periods in extremely cold weather or his 
 
         right foot will either freeze or get frost bite.
 
         
 
              Claimant's wife and Sleezer corroborated claimant's 
 
         testimony.  Claimant does work.  He has been able to perform the 
 
         work that has been assigned for him to do.  It also appears that 
 
         this requires a great deal of determination on his part and it 
 
         does give him pain and other difficulties both on the job and at 
 
         home.
 
         
 
              Therefore, (1) based upon all of the foregoing 
 
         considerations; (2) based upon the permanent functional 
 
         impairment ratings assigned by both Dr. Keane and Dr. Wolbrink; 
 
         (3) based upon personal observation of claimant's right leg 
 
         wounds (ex. 12 & 13); (4) based upon claimant's testimony and (5) 
 
         based upon agency expertise (Iowa Administrative Procedure Act 
 
         17A.14(5) it is determined that claimant has sustained a 20 
 
         percent permanent functional impairment of the right leg.  In 
 
         determining permanent partial disability in the case of a 
 
         scheduled member, claimant's testimony and demonstrated 
 
         difficulties may be considered in determining the actual loss of 
 
         use so long as loss of earning capacity is not considered.  
 

 
         
 
         
 
         
 
         WEILAND V. FLOYD D. SWANSON
 
         PAGE  13
 
         
 
         
 
         Soukup, 222 Iowa 272, 268 N.W. 598 (1936): Langrehr v. Warren 
 
         Packaging Corp., Thirty-fourth Biennial Report of the Industrial 
 
         Commissioner, 179 (January 22, 1980).  Defendant, employer, 
 
         therefore, is liable for 44 weeks (220 x .20) of permanent 
 
         partial disability for the injury to the right leg which occurred 
 
         on December 24, 1984.
 
         
 
              The next consideration is to determine the amount of 
 
         industrial disability resulting from the combined effect of both 
 
         the first and the second injury.  The football injury to the left 
 
         leg, which occurred in August of 1966, and the aggravation of it 
 
         when claimant fell off of the tractor on January 18, 1980, are 
 
         together considered to be the first injury.
 
         
 
              The operative phrase in industrial disability is loss of 
 
         earning capacity.  Ver Steegh v. Rolscreen, IV Iowa Industrial 
 
         Commissioner Report 377 (1984).
 
         
 
              One of the factors involved in determining industrial 
 
         disability is impairment.  In this case, claimant has a 
 
         substantial impairment in both of his lower extremities.  Dr. 
 
         Garner awarded a permanent functional impairment rating of 15 
 
         percent of the left lower extremity.  Dr. Keane did not give a 
 
         numerical rating for the left lower extremity, but he described 
 
         it as "considerable disability (Ex. 1).  There was no rating from 
 
         Dr. Wolbrink on the left lower extremity.  Dr. Garner's numerical 
 
         rating does not appear to be excessive in light of the 
 
         description of claimants physical disabilities in his left knee 
 
         as described by Dr. Keane, the treating physician.  In light of 
 
         Dr. Keane's description of his numerous physical findings of 
 
         injury, then claimant's testimony regarding his limitations are 
 
         not only credible,.but also reasonable.  In fact, claimant has 
 
         stayed gainfully employed in spite of numerous limitations. The 
 
         left knee is bad enough that Dr. Keane has been considering a 
 
         surgical procedure ever since 1980, but added that even if 
 
         claimant were to have surgery performed, he still would not have 
 
         a normal knee after the surgery.
 
         
 
              As far as the right leg and ankle are concerned, Dr. Keane 
 
         awarded a ten percent functional impairment rating.  Dr. Wolbrink 
 
         awarded a 22 percent permanent functional impairment rating.  
 
         Employer's insurance carrier have already paid claimant permanent 
 
         partial disability benefits based upon a 16 percent permanent 
 
         functional impairment rating of the right leg.  This decision has 
 
         determined that claimant has sustained a 20 percent permanent 
 
         functional impairment of the right leg.  Irrespective of the 
 
         numerical rating selected, it is obvious that claimant has 
 
         sustained a very substantial impairment of his right lower 
 
         extremity based upon Dr. Keane's description of his physical 
 
         findings, claimant's testimony and the physical appearance of the 
 
         injury itself (Exs. 12 & 13).  Claimant's strong determination 
 
         and motivation to work should not detract from the degree of 
 
         physical injury, debility, impairment and disability that 
 
         actually exists in his right ankle and leg.
 
         
 
              Claimant was 33 years old at the time of the injury and 36 
 
         years old at the time of hearing.  He is therefore, in the middle 
 
         part of his working life.  His loss of future earnings from 
 
         employment due to his disability is more serious than would be 
 
         the case for a younger or older individual.  See Becke v. 
 
         Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
 
         Industrial Commissioner 34 (1979); Walton v. B & H Tank Corp., II 
 
         Iowa Industrial Commissioner Report 426 (1981).
 

 
         
 
         
 
         
 
         WEILAND V. FLOYD D. SWANSON
 
         PAGE  14
 
         
 
         
 
         
 
              At the same time, claimant is young enough to be retrained. 
 
          The feasibility of retraining is one of the considerations 
 
         involved in determining industrial disability.  Conrad v. 
 
         Marquette School, Inc., IV Iowa Industrial Commissioner Report 
 
         74, 78 (1984).  Claimant should be approaching the peak of his 
 
         earnings career but instead is faced with limitations on what he 
 
         can and cannot do in the unskilled manual labor area of 
 
         employment.  Although none of the doctors imposed a list of 
 
         specific written permanent restrictions, claimant is 
 
         nevertheless, unable to do a number of things based on his own 
 
         testimony.  His testimony about his limitations is not only 
 
         credible but also reasonable.  The only incredible factor is that 
 
         he can do as much as he has been doing in light of his two severe 
 
         leg injuries.  Claimant cannot walk more than a mile without 
 
         pain.  He cannot stand for more than two hours without pain.  He 
 
         cannot do heavy lifting.  He cannot run.  He cannot squat or 
 
         kneel on his left knee.  Claimant's testimony is corraborated by 
 
         Dr. Keane's notes.
 
         
 
              In addition to these limitations on his ability to do farm 
 
         work, there are a number of other difficulties that he encounters 
 
         while doing any work.  His left knee pops and clicks.  It locks 
 
         up unexpectedly from time to time.  There is pain behind his left 
 
         knee.  He must wear an elastic bandage in order to work with his 
 
         left knee.  He is required to perform exercises daily in order 
 
         for the left knee to remain functional.  His right ankle swells 
 
         with a water pocket on the medial malleolus where the avulsed 
 
         fracture did not reunite.  The skin graft on the right calf 
 
         ruptures and bleeds as predicted by Dr. Keane.  Claimant must 
 
         daily perform heel and toe exercises in order for the right ankle 
 
         to remain functional.  These are severe limitations for a male 
 
         age 36 with no skills in the employment market other than manual 
 
         labor and farm hand work.  Many of the most common employment 
 
         opportunities are for unskilled manual labor types of work.  With 
 
         these limitations however, many of these jobs are now foreclosed 
 
         to claimant.  Michael v. Harrison County, Thirty-fourth Biennial 
 
         Report of the Industrial Commissioner 218, 219 (1979); Rohrberg 
 
         v. Griffin Pipe Products Co., I Iowa Industrial Commissioner 
 
         Report 282 (1981).  Whether claimant can continue in the farm 
 
         labor market, until age 65 or even an earlier retirement date, is 
 
         questionable.  Claimant has no education or training beyond high 
 
         school.  To change careers, acquire new skills, or to obtain 
 
         additional education would require substantial rehabilitation and 
 
         be very costly for a male age 36 with a wife and dependant 
 
         children.
 
         
 
              A loss of earning capacity can occur without a loss in 
 
         actual earnings.  The following legal authorities are adopted 
 
         from claimant's post-hearing brief.  From Larson, Workers' 
 
         Compensation Law, section 57.21(c) page 10-101 and section 
 
         57.21(d) page 10-113 and 10-125.
 
         
 
              Disability in spite of post-injury earnings exceeding 
 
              pre-injury.
 
         
 
                 It is uniformly held, therefore, without regard to 
 
              statutory variations in the phrasing of the test, that 
 
              a finding of disability may stand even when there is 
 
              evidence of some actual post-injury earnings equally or 
 
              exceeding those received before the accident.
 
         
 
              Creating and rebutting the presumption of earning 
 

 
         
 
         
 
         
 
         WEILAND V. FLOYD D. SWANSON
 
         PAGE  15
 
         
 
         
 
              capacity based on earnings.
 
         
 
                 The position may be best summarized by saying that 
 
              actual post-injury earnings will create a presumption 
 
              of earning capacity commensurate with them, but the 
 
              presumption may be rebutted by evidence independently 
 
              showing incapacity or explaining away the post-injury 
 
              earnings as an unreliable basis for estimating 
 
              capacity.
 
         
 
              In this case, claimant only worked a short time as a farm 
 
         hand for this employer from May 21 to approximately August 1, 
 
         1985.  By.working long hours and extra hours he has favorably 
 
         impressed , second farmer employer and has provided a measure of 
 
         job security for the time being.  However, when claimant was in a 
 
         more competitive job market, working in a factory for a corporate 
 
         employer at Van Top, he earned less money and decided to quit 
 
         after a short time because the lifting hurt his left knee and the 
 
         standing hurt his right ankle.
 
         
 
              Claimant's other applications for work at I.B.P. and at the 
 
         D.O.T., were not rewarded after he disclosed his earlier injuries 
 
         on the employment applications.  It was claimant's opinion that 
 
         these injuries prevented him from being considered for these 
 
         jobs.  Dr. Keane even chose to make a note of this so he too, may 
 
         consider these injuries to be a significant factor in obtaining 
 
         employment (Ex. 2, p. 3).
 
         
 
              Most employers in the competitive job market have employment 
 
         applications.  These applications require prospective employees 
 
         to answer one or more health questions.  In particular, 
 
         employment applications ask for a disclosure of prior employment 
 
         injuries and prior workers' compensation claims.  This claimant 
 
         is obviously not as employable as a younger employee for a 
 
         nonskilled manual labor type of job and he is not as employable 
 
         as another employee his same age who has no history of prior 
 
         injuries or workers' compensation claims.  Joint injuries and 
 
         back injuries have a strong propensity to recur.  Thus, 
 
         claimant's employment possibilities, and in turn his capacity to 
 
         earn wages in the competitive labor market of today, is 
 
         substantially affected.  How employable is a 36 year old man with 
 
         a bad knee on one leg and a bad ankle on the other leg who has 
 
         had two prior workers' compensation claims?  How employable would 
 
         this claimant be if Dr. Keane's medical notes were available to a 
 
         prospective employer describing the physical condition of 
 
         claimant's left knee and his right ankle?  How employable is 
 
         claimant in light of the physical appearance of his right medial 
 
         calf and considering he walks with a limp?  How employable is a 
 
         person who only sleeps three to four hours per night due to pain 
 
         in his legs, has to perform daily exercises to stay functional at 
 
         all and whose right ankle regularly swells and forms a water 
 
         pocket from everyday use?  An incidental farmer might take a 
 
         chance on him and continue to employ him as long as he performs 
 
         well.  A corporate employer or a large employer would more likely 
 
         turn to a younger and healthier employee.
 
         
 
              Claimant is now working as a farm hand for Sleezer, although 
 
         with difficulty.  Fortunately, claimant has been able to find a 
 
         job that pays well and claimant intends to continue working for 
 
         Sleezer.  Sleezer accommodates claimant's disabilities.  In fact, 
 
         claimant earns more now than he earned from his previous farm 
 
         employer.  Post-injury earnings create an inference of earning 
 
         capacity commensurate with them, but they are rebuttable by 
 

 
         
 
         
 
         
 
         WEILAND V. FLOYD D. SWANSON
 
         PAGE  16
 
         
 
         
 
         evidence showing them to be an unreliable basis for estimating 
 
         earning capacity. 2 Larson, Workers Compensation Law, section 
 
         57.21(c) and (d).  Post-injury earnings are not synonymous with 
 
         earning capacity.  2 Larson, sections 57.21 and 57.31.  It must 
 
         be taken into consideration that claimant has made an 
 
         extraordinary effort to maintain employment.  2 Larson, section 
 
         57.31 at page 10-163.  Industrial disability, or loss of earning 
 
         capacity, in a workers' compensation case is quite similar to 
 
         impairment of earning capacity, an element of damages in a tort 
 
         case.  Impairment of physical capacity creates an inference of 
 
         lessened earning capacity.  The basic element to be determined 
 
         however, is a reduction in value of the general earning capacity 
 
         of the person rather than the loss of wages or earnings in a 
 
         specific occupation.  Holmquist v. Volkswagon of American, Inc., 
 
         261 N.W.2d 516 (Iowa Appeals 1977); 100 ALR Third 143; 2 Larson, 
 
         sections 57.21, 57.31.
 
         
 
              In this decision, it is found that claimant has suffered a 
 
         loss of earning capacity, despite the lack of a showing of a loss 
 
         of actual earnings as a result of the work injury.  A showing 
 
         that claimant had no loss of actual earnings as a result of a 
 
         work injury does not preclude a finding of industrial disability. 
 
          Michael, Thirty-fourth Biennial Report of the Industrial 
 
         Commissioner 218, 220 (Appeal Decision 1979).  In spite of his 
 
         actual earnings, which are as much or more than claimant made at 
 
         the time of the second injury, claimant has sustained a 
 
         substantial loss in the capacity to earn money in the competitive 
 
         employment market.  Therefore, based upon the foregoing evidence 
 

 
         
 
         
 
         
 
         WEILAND V. FLOYD D. SWANSON
 
         PAGE  17
 
         
 
         
 
         and all of the factors that are involved in determining 
 
         industrial disability, it is determined that claimant has 
 
         sustained a 35 percent industrial disability to the body as a 
 
         whole from the combined effects of the first and second injury.
 
         
 
              The liability of the Second Injury Fund is determined by the 
 
         following formula:  (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 (Fulton v. Jimmie Dean Meat Co. 
 
         and Second Injury Fund of Iowa, Vol. I, No. 4 Industrial 
 
         Commissioner Decisions page 840 (May 15, 1979); Second Injury 
 
         Fund v. Mich Coal Co., 274 N.W.2d 300 (Iowa 1979).  Applying that 
 
         formula to this case (1) the industrial disability from the 
 
         combined effect of both the first and second injury is 175 weeks 
 
         (500 x .35); (2) minus the impairment value of the first injury, 
 
         which is 33 weeks (220.x .15); (3) minus the impairment value of 
 
         the second injury, which is 44 weeks (220 x .20); (4) which 
 
         leaves 98 weeks as the liability of the Second Injury Fund of 
 
         Iowa.
 
         
 
              It should be noted that this case is very similar in many 
 
         respects to the case of Albright v. Wilson Foods Co. and Second 
 
         Injury Fund of Iowa, file nos. 696983 and 682771 (Appeal Decision 
 
         dated April 27, 1987).  In that case, claimant sustained a 10 
 
         percent permanent functional impairment rating to each of his 
 
         lower extremities and was awarded a 30 percent industrial 
 
         disability for the combined effect of both of the scheduled 
 
         member injuries.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made:
 
         
 
              That claimant sustained a 15 percent permanent functional 
 
         impairment to the left leg due to the first injury, which 
 
         occurred in 1966, and was aggravated again in 1980.
 
         
 
              That claimant sustained a 20 percent permanent functional 
 
         impairment rating of the right leg due to the injury of December 
 
         24, 1984, when his clothing became entangled in the beaters of 
 
         the silage wagon which were connected the the power takeoff on 
 
         the tractor.
 
         
 
              That claimant sustained a 35 percent industrial disability 
 
         to the body as a whole as a result of the combined effects of 
 
         both of the scheduled member injuries above.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously stated, the following conclusions of 
 
         law are made:
 
         
 
              That claimant is entitled to 44 weeks of permanent partial 
 
         disability benefits from employer for the injury to the right leg 
 
         on December 24, 1984.
 
         
 
              That claimant is entitled to 98 weeks of permanent partial 
 
         disability from the Second Injury Fund of Iowa..
 

 
         
 
         
 
         
 
         WEILAND V. FLOYD D. SWANSON
 
         PAGE  18
 
         
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant, employer, pay forty-four (44) weeks of 
 
         permanent partial disability benefits to claimant at the rate of 
 
         one hundred sixty-nine and 45/100 dollars ($169.45) per week in 
 
         the total amount of seven thousand four hundred fifty-five and 
 
         80/100 dollars ($7,455.80) commencing on May 21, 1985.
 
         
 
              That the Second Injury Fund of Iowa pay to claimant 
 
         ninety-eight (98) weeks of permanent partial disability at the 
 
         rate of one hundred sixty-nine and 45/100 dollars ($161.45) per 
 
         week in the total amount of sixteen thousand six hundred six and 
 
         10 100 dollars ($16,606.10) commencing on March 25, 1986, 
 
         immediately after the employer's last payment of permanent 
 
         partial disability benefits.
 
         
 
              That defendant, employer, is entitled to a credit for 
 
         thirty-five point two (35.2) weeks of permanent partial 
 
         disability paid prior to hearing at the rate of one hundred 
 
         sixty-nine and 45/100 dollars ($169.45) per week in the total 
 
         amount of five thousand nine hundred sixty-four and 64/100 
 
         dollars ($5,964.64).
 
         
 
              That these amount are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action are to be divided equally 
 
         between employer and the Second Injury Fund of Iowa pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That both defendants file claim activity reports as required 
 
         by this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 25th day of August, 1988.
 
         
 
         
 
         
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Steven Hamilton
 
         Attorney at Law
 
         606 Ontario St
 
         P.O. Box 188
 
         Storm Lake, Iowa  50588
 
         
 
         Mr. Paul Deck, Jr.
 
         Attorney at Law
 
         635 Francis Bldg
 
         Sioux City, iowa 51101
 
         
 
         Ms. Joanne Moeller
 

 
         
 
         
 
         
 
         WEILAND V. FLOYD D. SWANSON
 
         PAGE  19
 
         
 
         
 
         Assistant Attorney General
 
         Hoover State Office Bldg
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1402.40; 1803; 3201; 
 
                                                  3202
 
                                                  Filed August 25, 1988
 
                                                  WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ALLEN WETLAND,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No.  783580
 
         FLOYD D. SWANSON,
 
                                                 A R B I T R A T I O N
 
              Employer,
 
                                                    D E C I S I O N
 
         and
 
         
 
         FARM BUREAU MUTUAL INSURANCE
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         1402.40; 1803; 3201; 3202
 
         
 
         First Injury
 
         
 
              Claimant had a very bad left knee from a high school 
 
         football injury in 1966.  He reinjured it or aggravated it in a 
 
         farm accident in 1980.  Only numerical permanent functional 
 
         impairment rating was 15 percent to the left leg and claimant was 
 
         awarded 15 percent of the left leg.
 
         
 
         Second Injury
 
         
 
              Claimant got his clothing caught in the beaters of a silage 
 
         wagon and suffered multiple serious injuries on both legs.  He 
 
         lost a chunk of his right medial calf and sustained severe 
 
         residuals in his right ankle.  Treating physician awarded ten 
 
         percent.  Claimant's evaluator awarded 22 percent.  Deputy 
 
         awarded 20 percent of the right leg.
 
         
 
         Industrial Disability
 
         
 
              The combined effects of both leg injuries was determined to 
 
         be 35 percent of the body as a whole.  Fulton v. Jimmy Dean Meat 
 
         formula applied and Second Injury Fund of Iowa was liable for 98 
 
         weeks of benefits.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            AL WEILAND,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 783580
 
            FLOYD SWANSON, :
 
                      :      D E C I S I O N
 
                 Employer, :
 
                      :            O N
 
            and       :
 
                      :        R E M A N D
 
            FARM BUREAU MUTUAL INS. CO.,  :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            In a ruling filed December 4, 1990, the Iowa District Court 
 
            for Polk County remanded this case for further order 
 
            relating to interest on the benefits awarded to claimant.  
 
            The district court cited Second Injury Fund of Iowa v. 
 
            Braden, 459 N.W.2d 467 (Iowa 1990, which held that in 
 
            workers' compensation cases, the Second Injury Fund of Iowa 
 
            is liable for interest on benefits assessed against the Fund 
 
            from the date of the commissioner's decision.
 
            ACCORDINGLY, it is ordered:
 
            That the Second Injury Fund of Iowa shall pay interest on 
 
            unpaid benefits awarded against the Fund from December 29, 
 
            1989 pursuant to Iowa Code section 85.30.
 
            Signed and filed this ____ day of December, 1990.
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Steve Hamilton
 
            Attorney at Law
 
            P.O. Box 188
 
            Storm Lake, Iowa 50588
 
            
 
            Mr. Paul W. Deck, Jr.
 
            Attorney at Law
 
            635 Frances Bldg.
 
            Sioux City, Iowa 51101
 
            
 
            Ms. Joanne Moeller
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-3203 - 5-3800
 
            Filed December 13, 1990
 
            Clair R. Cramer
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            AL WEILAND,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 783580
 
            FLOYD SWANSON, :
 
                      :      D E C I S I O N
 
                 Employer, :
 
                      :            O N
 
            and       :
 
                      :        R E M A N D
 
            FARM BUREAU MUTUAL INS. CO.,  :
 
                      :
 
                 Insurance Carrier,  :
 
                      :
 
            and       :
 
                      :
 
            SECOND INJURY FUND OF IOWA,   :
 
                      :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            5-3203, 5-3800
 
            On remand from district court, Second Injury Fund was 
 
            ordered to pay interest on unpaid benefits from date of 
 
            final agency decision, per Braden.  
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN CLINTON,
 
         
 
              Claimant,
 
                                                 File No. 783689
 
         
 
         vs.
 
                                               A R B I T R A T I 0 N
 
         
 
         SHELLER-GLOBE CORP.,
 
                                                 D E C I S I O N
 
               Employer,
 
               Self-Insured,
 
               Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by John Clinton, 
 
         claimant, against Sheller-Globe Corporation, employer 
 
         (hereinafter referred to as Sheller-Globe), a self-insured 
 
         defendant, for workers' compensation benefits as a result of an 
 
         alleged injury on December 8, 1984. on June 6, 1988, a hearing 
 
         was held on claimant's petition and the matter was considered 
 
         fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses: Lewis Vierling, Pamela Clinton, Richard 
 
         McCartt and Marguerite Blaskovich.  The exhibits received into 
 
         the evidence at the hearing are listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties stipulated 
 
         to the following matters:
 
         
 
              1.  If the claimed injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole;
 
         
 
              2.  If permanent disability benefits are awarded in this 
 
         proceeding, they shall begin as of January 24, 1987; and,
 
         
 
              3.  The medical bills submitted by claimant at the hearing 
 
         were fair and reasonable and causally connected to the medical 
 
         condition upon which the claim is based but that the issue of 
 
         their causal connection to any work injury remained an issue to 
 
         be decided herein.
 

 
         
 
         
 
         
 
         CLINTON V. SHELLER-GLOBE CORP.
 
         PAGE   2
 
         
 
                                       ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of employment;
 
         
 
             II.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability;
 
         
 
            III.  The extent of claimant's entitlement to weekly benefits 
 
         for disability; and,
 
         
 
             IV.  The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Pursuant to order of the undersigned, each party prepared 
 
         and filed a "Statement of Facts Relied Upon" to simplify the 
 
         writing of this decision.  These statements are incorporated into 
 
         this summary as it fully set out herein.  Whether or not 
 
         specifically referred to in these statements or the following 
 
         brief overview of the facts by the undersigned, all of the 
 
         evidence received at the hearing was independently reviewed and 
 
         considered in arriving at this decision.  Any conclusionary 
 
         statements in the following overview by the undersigned should be 
 
         considered as preliminary findings of fact.
 
         
 
              Claimant testified that he worked for Sheller-Globe as a 
 
         painter of car parts since July of 1984.  Claimant's work history 
 
         consisted of unskilled construction work, truck driving, one job 
 
         as a manager of a gas station, an iron pourer and a restaurant 
 
         cook.  Claimant served a two year prison sentence for the felony 
 
         crime of terrorism in the early 1980's.  Claimant is 34 years of 
 
         age and although he completed only ninth grade, he received a GED 
 
         during his honorable military service in the marine corps.  
 
         Claimant had a history of mental depression and alcohol abuse 
 
         problems before the work injury which apparently contributed to 
 
         the incident which led to his prison term.  Claimant denies a 
 
         current drinking problem but was last arrested for intoxication 
 
         in 1986.  A vocational counselor testified that claimant once 
 
         appeared intoxicated during an interview after the work injury.  
 
         Claimant admitted at hearing to currently drinking beer to 
 
         relieve pain from the alleged work injury.
 
         
 
              Claimant testified that while attempting to manhandle a 60 
 
         gallon paint drum on December 8, 1984, he felt pain in his low 
 
         back which radiated into the right leg.  Claimant testified that 
 
         he reported this incident to his supervisor and this allegation 
 
         was not refuted by the defense.  Claimant said that his pain 
 
         became severe and he sought medical attention from a 
 
         chiropractor.  However, claimant had been regularly seeing a 
 
         chiropractor since November 15, 1984 for low back pain and pain 
 
         between his shoulders.  He also indicated to the chiropractor 
 
         prior to the work injury that the pain was radiating into the 
 
         right hip and leg.  Claimant further reported to the chiropractor 
 
         on November 15, 1984, that the pain began six months earlier.  
 
         Claimant received adjustments from this chiropractor once or 
 

 
         
 
         
 
         
 
         CLINTON V. SHELLER-GLOBE CORP.
 
         PAGE   3
 
         
 
         twice a week between November 15, 1984 and December 20, 1984.  
 
         The chiropractor testified in his deposition that claimant's pain 
 
         became worse between December 7 and December 10, 1984 which 
 
         modified his diagnoses to include disc pathology.  After December 
 
         20, 1984, claimant sought additional treatment from a VA 
 
         Hospital.  According to this hospital's records, claimant stated 
 
         to a VA physician that his back pain began four weeks earlier 
 
         without any specific incident and that the pain became worse 
 
         recently which required his absence from work for a one week 
 
         period.  These records did, however, note that. claimant was 
 
         lifting paint barrels at work.
 
         
 
              Claimant then sought treatment from defendant's physicians 
 
         and claimant was eventually referred for treatment to two 
 
         orthopedic surgeons.  These doctors initially felt claimant had 
 
         suffered a herniated disc in early December, 1984, but failed to 
 
         identify any abnormality from a full range of tests including a 
 
         CT scan, myelogram and an EMG.  Claimant was also evaluated by a 
 
         neurologist, James Worrell, M.D.  After several treatment 
 
         modalities failed to alleviate claimant's pain problems, claimant 
 
         was referred for further evaluation to James Turner, M.D., 
 
         another orthopedic surgeon, and the Orthopedic Department of the 
 
         University of Iowa Hospitals and Clinics.  Dr. Turner could find 
 
         no objective evidence of injury after his examination of 
 
         claimant.  Thomas R. Layman, M.D., from the University of Iowa 
 
         Hospitals and Clinics, diagnosed that claimant was suffering from 
 
         chronic low back pain of unknown etiology.  John R. Walker, M.D., 
 
         another orthopedic surgeon, examined claimant in January, 1986, 
 
         and diagnosed a disc disruption with sciatica of the right lower 
 
         leg and back strain.  Dr. Walker recognized at the time that 
 
         claimant may have a hysterical (mental) pain type of problem and 
 
         also felt that claimant should receive counseling for possible 
 
         drug addiction.  Claimant then underwent extensive psychiatric 
 
         evaluation and testing.  These evaluations found claimant to be 
 
         very depressed and a possible alcohol abuser.
 
         
 
              Claimant attempted to return to work after completing a 
 
         rehabilitation program at the University of Iowa Hospitals and 
 
         Clinics but claimed he could not continue working due to severe 
 
         pain which developed only after a few hours on the job.  
 
         Claimant's job was then modified by the defendant employer with 
 
         the assistance of a vocational rehabilitation nurse to 
 
         accommodate for his physical problems but claimant quit this job 
 
         in 1987 when his wife obtained employment in Minnesota.  
 
         Claimant's wife has since lost her job in Minnesota and claimant 
 
         remains unemployed at the present time.
 
         
 
              Two physicians in this case have opined that claimant 
 
         suffers from a five percent permanent partial impairment and both 
 
         of these physicians causally relate this impairment to the 
 
         December 8, 1984 alleged injury.  These physicians also state 
 
         that claimant's pain symptoms are greater than would be expected 
 
         from objective findings.  Claimant's mental health evaluators 
 
         indicated that claimant's disability primarily stems from his 
 
         depression and chronic pain syndrome.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 

 
         
 
         
 
         
 
         CLINTON V. SHELLER-GLOBE CORP.
 
         PAGE   4
 
         
 
         and in the course of employment.  The words."out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active or dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              In the case sub judice, claimant has shown an injury on the 
 
         job but whether this was only a temporary aggravation of a 
 
         preexisting condition or a permanent injury is dealt with below.
 
         
 
              II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All- American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Asse 
 
         Haugen Homes,Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability. Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 

 
         
 
         
 
         
 
         CLINTON V. SHELLER-GLOBE CORP.
 
         PAGE   5
 
         
 
              In the case sub,judice, claimant contends that he suffered 
 
         permanent disability as a result of lifting the paint barrels at 
 
         work on December 8, 1984, resulting in permanent impairment to 
 
         his body as a whole.  It is clear from the greater weight of the 
 
         evidence that claimant has shown that he does suffer from 
 
         significant permanent partial impairment due to chronic pain 
 
         syndrome.  However, the greater weight of the evidence fails to 
 
         show the requisite causal connection between this chronic pain 
 
         syndrome and the work injury of December 8, 1984.
 
         
 
              First, it could not be found that claimant was credible.  
 
         Claimant's attempts to downplay his back difficulties before 
 
         December 8, 1984, both to his physicians and at the hearing in 
 
         this case, indicates that he was not being totally honest with 
 
         his physicians or with the undersigned.  Low back pain radiating 
 
         into the hips and lower extremity with twice a week chiropractic 
 
         adjustments between November 15 and December 20, 1984, are not 
 
         occasional chiropractic adjustments for mild aches and pains as 
 
         contended by claimant.  Claimant reported to his chiropractor and 
 
         to VA doctors that his problems began well before the alleged 
 
         work injury and even well before his employment at Sheller-Globe. 
 
          Secondly, although Drs. Layman and Worrell causally 
 
         connected-the permanent partial impairment to the claimed work 
 
         injury, it was aptly pointed out in Dr. Worrell's deposition by 
 
         defense counsel that these opinions are only as good as the 
 
         histories provided to those physicians by claimant.  It has not 
 
         been shown by claimant that either Dr. Layman or Dr. Worrell were 
 
         aware of the chronic right leg pain and regular chiropractic 
 
         treatments several weeks before the December 8, 1984 injury.  
 
         Therefore, their opinions cannot be relied upon by this agency.  
 
         Finally, a significant portion of claimant's disability stems 
 
         from his mental depression and chronic pain syndrome.  Claimant 
 
         had significant mental depression problems well before the work 
 
         injury in this case.
 
         
 
              Claimant has similarly failed to demonstrate by the medical 
 
         evidence that his absence from work after December 8, 1984 was 
 
         the result of the work injury.  The physicians who have opined 
 
         that the absences were work related were also not aware of the 
 
         full extent of claimant's prior physical and mental 
 
         difficulties.
 
         
 
              With reference to the medical expenses requested by 
 
         claimant, claimant has not shown by the evidence that any of the 
 
         medical treatment was related to the work injury for the same 
 
         reasons that claimant failed to show the causal connection of his 
 
         current back problems to the work injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On December 8, 1984, claimant suffered an injury to his 
 
         low back which arose out of and in the course of employment with 
 
         Sheller-Globe.  While manhandling a barrel of paint, claimant 
 
         experienced low back pain radiating into his right leg.  This 
 
         right leg pain was an aggravation of a preexisting back problem.
 
         
 
              2.  Beginning six months prior to December 8, 1984, claimant 
 
         began experiencing low back pain radiating into the right leg and 
 
         began to regularly receive chiropractic treatment for such 
 
         problems on November 15, 1984 which continued uninterrupted until 
 

 
         
 
         
 
         
 
         CLINTON V. SHELLER-GLOBE CORP.
 
         PAGE   6
 
         
 
         December 20, 1984.
 
         
 
              3.  Claimant is permanently impaired and is severely 
 
         disabled due to chronic pain syndrome.  Claimant has failed to 
 
         show that the work injury of December 8, 1984 was a cause of this 
 
         disability.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to establish an entitlement to 
 
         disability and medical benefits under Chapter 85 of the Iowa 
 
         Code.
 
         
 
                                      ORDER
 
         
 
              1.  Claimant's petition is denied.
 
         
 
              2.  Each party is ordered to pay their own costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
         
 
              Signed and filed this 30th day of November, 1988.
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Ave. S.W.
 
         Suite 114
 
         Cedar Rapids, Iowa  52404
 
         
 
         Mr. Harry W. Dahl
 
         Mr. Barry Moranville
 
         Attorneys at Law
 
         974 73rd St.
 
         Suite 16
 
         Des Moines, Iowa 50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1402
 
                                                  Filed November 30, 1988
 
                                                  LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOHN CLINTON,
 
         
 
              Claimant,
 
                                                   File No. 783689
 
         
 
         vs.
 
                                               A R B I T R A T I 0 N
 
         
 
         SHELLER-GLOBE CORP.,
 
                                                  D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1402
 
         
 
              Claimant failed to carry his burden of proof to establish a 
 
         causal connection between his disability and the work injury.  
 
         Claimant based his claim upon low back problems with pain 
 
         radiating into the right leg.  The evidence demonstrated that 
 
         claimant had been receiving regular chiropractic treatments for 
 
         those same problems up to four weeks before the alleged work 
 
         injury.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARGARET HARTMAN,
 
         
 
              Claimant,                              File No. 783897
 
         
 
         vs.
 
                                                  A R B I T R A T I 0 N
 
         IOWA METHODIST MEDICAL CENTER,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and                                            F I L E D
 
         
 
         AETNA CASUALTY AND SURETY                     JAN 26 1988
 
         COMPANY,
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                             STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Margaret 
 
         Hartman, claimant, against Iowa Methodist Medical Center, 
 
         employer, and Aetna Casualty & Surety Company, insurance carrier, 
 
         to recover benefits under the Iowa Workers' Compensation Act as a 
 
         result of an injury sustained November 8, 1984.  This matter came 
 
         on for hearing before the undersigned deputy industrial 
 
         commissioner October 21, 1987.  The record was considered fully 
 
         submitted at the close of the hearing.  The record in this case 
 
         consists of the testimony of the claimant; claimant's exhibits 1 
 
         through 3, inclusive; and defendants' exhibits A through I, 
 
         inclusive.  It should be noted here that many of the exhibits 
 
         submitted are duplicate.  The parties are directed to section 
 
         10(2) of the hearing assignment order which states:  "Every 
 
         reasonable effort should be made to avoid duplication."  
 
         Compliance with this order is not optional.
 
         
 
                                    ISSUES
 
         
 
              Pursuant to prehearing report and order approved October 21, 
 
         1987, the issues presented for resolution are:
 
         
 
              1.  Whether claimant sustained an injury on November 8, 1984 
 
         which arose out of and in the course of employment;
 
         
 
              2.  Whether the alleged injury is causally connected to the 
 
         disability on which claimant now bases her claim; and
 
         
 
              3.  Claimant's entitlement, if any, to permanent partial 
 
         disability benefits.
 
         
 
                                 FACTS PRESENTED
 
                                                 
 
                                                          
 
         
 
              Claimant testified she completed the ninth grade and, 
 
         outside of some adult education in typing, has had no other 
 
         formal training.  Claimant has worked as a bartender, waitress, 
 
         cashier, press operator and quality control inspector with some 
 
         limited experience in bookkeeping and inventory control.  Most 
 
         recently, claimant has worked selling tupperware and as a 
 
         secretary ("Girl Friday") handling billing, filing and 
 
         correspondence at O. L. Express, a transporter.
 
         
 
              Claimant stated she began working for defendant employer 
 
         June 6, 1984 as a housekeeper.  She recalled that on November 8, 
 
         1984, she felt a pull in her back as she went to pick up a 
 
         bucket. Claimant stated she continued working but reported to the 
 
         emergency room about an hour later because her back was still 
 
         bothering her and was then sent home.  Claimant returned to work 
 
         November 12, 1984 without restriction, with no request for 
 
         medical followup and worked without incident until November 25, 
 
         1984. Claimant testified she had been feeling some discomfort 
 
         throughout her shift on November 25, 1984 which culminated in 
 
         intense pain while vacuuming so that she could "hardly move."  
 
         She reported to the emergency room and was hospitalized, coming 
 
         under the care of Stephen G. Taylor, M.D.  Claimant expressed her 
 
         feelings that she did not improve under Dr. Taylor's care and, in 
 
         May 1985, was referred to the Mercy Pain Center under the care of 
 
         James L. Blessman, M.D.
 
         
 
              Claimant maintained she diligently worked with a vocational 
 
         rehabilitation officer and sought employment but was unsuccessful 
 
         at securing work until November 1986 when she began working for 
 
         O. L. Express.  Claimant stated she became unemployed September 
 
         18, 1987 when the business closed.  Claimant currently considers 
 
         her health and job prospects only fair asserting she can neither 
 
         sit nor stand for very long, and cannot do household chores, yard 
 
         work or walk stairs without pain.  Claimant acknowledged the last 
 
         physician she saw was Jerome G. Bashara, M.D., in April 1987, who 
 
         has provided no care or treatment.
 
         
 
              Claimant was treated by Stephen G. Taylor, M.D., orthopedic 
 
         surgeon, from November 25, 1984 until March 28, 1985.  Records of 
 
         claimant's hospitalization show claimant underwent a CT scan 
 
         which revealed a disc protrusion at L5, S1 that Dr. Taylor felt 
 
         mild and not surgically significant.  Dr. Taylor, on July 30, 
 
         1985, wrote "Based on my previous examinations and findings, I 
 
         would not recommend any permanent partial impairment as a result 
 
         of her back problems."
 
         
 
              Claimant was admitted to the Mercy Pain Clinic under the 
 
         care of James L. Blessman, M.D., after a referral from Dr. 
 
         Taylor. While a patient in the comprehensive pain unit, claimant 
 
         was treated with exercise, taught pain control modalities, stress 
 
         management, use of lead TENS, and underwent vocational 
 
         rehabilitation counseling.  Progress notes show claimant's 
 
         advancement from the time of her admission to discharge on May 
 
         24, 1985:  May 13 "seems to be making good progress"; May 20 
 
                                                 
 
                                                          
 
         "doing well"; May 15 "excellent progress."  Claimant's assessment 
 
         of her own progress is also recorded:  May 23 "I feel almost like 
 
         a new person; I'm coping so much better; I can do much more 
 
         physically." Dr. Blessman's discharge notes state:  "No return to 
 
         work date is given.  I do feel she is recovering quite well from 
 
         her low back pain...."
 
         
 
              Claimant was evaluated by Jerome G. Bashara, M.D., 
 
         orthopedic surgeon, April 14, 1987, who concluded:
 
         
 
              This injury is felt to be related to her work at the Iowa 
 
              Methodist Medical Center, housekeeping department in 1984 
 
              and specifically to any injury which occurred on or about 
 
              11-7 or 11-8-84.  I would give this patient a 5% permanent 
 
              partial physical impairment of her body as a whole related 
 
              to her lumbar disc injury and musculoligamentous strain.
 
         
 
                                  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(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on November 8, 1984 which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              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, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              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, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              "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."  Cedar Rapids Comm. Sch. Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283, Musselman, 261 
 
         Iowa 352, 154 N.W.2d 128.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 8, 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. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
                                                 
 
                                                          
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  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 52, 154 N.W.2d 128.
 
         
 
                                   ANALYSIS
 
         
 
              Of first concern is whether claimant's injury arose out of 
 
         and in the course of her employment with Iowa Methodist Medical 
 
         Center.  Claimant testified she injured herself on November 8, 
 
         1984 while picking up a bucket as part of a regularly assigned 
 
         duty and then on November 25, 1984, while vacuuming, after 
 
 
 
                      
 
                                                          
 
         experiencing discomfort all day.  Defendants have presented no 
 
         evidence which would show claimant sustained an injury at any 
 
         place or time other than that asserted by claimant.  Claimant's 
 
         testimony is supported by the medical evidence in the record. 
 
         Hospital admissions history shows claimant was first seen 
 
         November 8 with discomfort in her back and seen again November 25 
 
         because of increasing symptoms.  It is therefore accepted 
 
         claimant injured her back November 8, 1984 while performing her 
 
         regular duties and the circumstances of claimant's injury meet 
 
         the tests annunciated in Crowe, 68 N.W.2d 63, and McClure, 188 
 
         N.W.2d 283, to arise out of and in the course of her employment.
 
         
 
              While the parties have stipulated claimant's work injury is 
 
         the cause of a temporary disability, the issue of causation of a 
 
         permanent disability is in dispute.  In the case of temporary 
 
         disability, the claimant must establish that the work injury was 
 
         the cause of absence from work and lost earnings during a period 
 
         of recovery from the injury.  Generally, a claim of permanent 
 
         disability invokes an initial determination of whether the work 
 
         injury was a cause of permanent physical impairment or permanent 
 
         limitation in work activity.  By the very meaning of the phrase, 
 
         a person with a "permanent disability" can never return to the 
 
         same physical condition he or she had prior to the injury.  
 
         Armstrong Tire & Rubber Company v. Kubli, 312 N.W.2d 60, 65 
 
         (Iowa 1981), citing 2A Larson, The Law of Workmen's Compensation, 
 
         section 67.12 (1981).  Based on claimant's testimony and the 
 
         medical evidence submitted, it is accepted claimant can never 
 
         return to the same physical condition she had prior to her injury 
 
         and the injury is therefore the cause of a permanent impairment.  
 
         The question thus turns to the extent of the disability 
 
         stipulated to be to the body as a whole.
 
         
 
              As claimant concedes, the impairment ratings given by 
 
         doctors Taylor and Bashara are small.  Dr. Taylor, claimant's 
 
         treating physician, gives no permanent impairment rating and Dr. 
 
         Bashara, who evaluated claimant, gives a 5 percent permanent 
 
         physical impairment rating.
 
         
 
              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 by a medical 
 
         evaluator does not equate to industrial disability.  This is so 
 
         as impairment and disability are not synonymous.  The degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
                                                 
 
                                                          
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy to draw upon prior 
 
         experience, general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Christensen 
 
         v. Hagen, Inc., (Appeal Decision, March 26, 1985); Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985).
 
         
 
              Claimant is 42 years old and has a ninth grade education.  
 
         Her previous work experience involved waitressing, bartending, 
 
         machine operation, cashiering and quality control inspection which 
 
         paid her wages from $3.25 to $5.00 per hour.  At the time of her 
 
         injury, she was earning $5.05 per hour.  Her most recent 
 
         employment with O. L. Express, occurring after her injury, paid 
 
         $5.00 per hour.  Claimant has taken an adult education typing 
 
         course and through vocational rehabilitation has practiced her 
 
         typing skills so that she is now able to type approximately forty 
 
         words per minute.  Her employment at O. L. Express afforded her 
 
         the opportunity not only to hone these skills but to acquire other 
 
         office and clerical talents she did not possess prior to her 
 
         injury.  Where claimant's opportunities (because of her limited 
 
         education and lack of availability of training) may have been 
 
         limited before her injury, claimant has now expanded her horizons 
 
         to qualify for positions in which she may expect some growth.  
 
         Claimant has demonstrated excellent progress through vocational 
 
         rehabilitation.  Claimant has not demonstrated significant loss of 
 
         earnings as a result of her injury since her clerical position 
 
         paid only $.05 per hour less than her housekeeping position.  It 
 
         must be noted, however, that her wage at O. L. Express was a 
 
                                                 
 
                                                          
 
         starting wage while claimant's last wage with defendant employer 
 
         was after two raises.
 
         
 
              Claimant's motivation is seriously in question.  Claimant 
 
         testified at hearing she liked and was good at her job as a 
 
         housekeeper.  Yet, the record is replete with references to her 
 
         dislike and dissatisfaction with her position.  Dr. Blessman's 
 
         discharge summary from the Mercy Pain Clinic states:  "Patient 
 
         did not want to return to her previous employment."  (Defendants' 
 
         Exhibit A, page 4)  Robert Jones' vocational consultation with 
 
         claimant dated May 20, 1985, states:  "As regards return to her 
 
         previous employer and employment, Sue states she greatly disliked 
 
         her job with Iowa Methodist Hospital and has no intention of 
 
         returning to this work setting."  (Def. Ex. A, p. 8)  Social 
 
         service progress notes from Patti Coleen Brown, MSW, state:  "Sue 
 
         explains that her job at Iowa Methodist, as a housekeeper, was 
 
         not a good one for her."  (Def. Ex. A, p. 22)  Dr. Taylor's 
 
         office notes from March 28, 1985, state:  "She gives me the 
 
         impression that even if her symptoms do resolve she is not 
 
         interested in returning to work as a housekeeper at Iowa 
 
         Methodist."  (Def. Ex. B, p. 2)  Richard (Rick) McCluhan, who 
 
         worked with claimant in her vocational rehabilitation, writes on 
 
         October 4, 1985:
 
         
 
              By the way, I did visit with Mr. Reynolds of Iowa Methodist 
 
              Medical Center and find that they may be willing to give 
 
              Margaret some consideration for another possible job area 
 
              provided she is qualified for the same.  In visiting with 
 
              Margaret about this, I find that she is not too enthused 
 
              about the prospect of returning to Iowa Methodist Medical 
 
              Center.  She evidently would just as soon locate another 
 
              employment situation.
 
         
 
         (Def. Ex. D, p. 4)
 
         
 
         A question thus arises as to whether or not claimant's lack of 
 
         enthusiasm to return to her former employer makes her partly 
 
         responsible for her own unemployed status.  It appears defendant 
 
         employer was willing to work with claimant, but this option was 
 
         summarily rejected by her.  Defendants cannot be held responsible 
 
         for claimant's own personal choices nor liable if those choices 
 
         are economically unsound.
 
         
 
              In addition, claimant has shown little inclination to seek 
 
         employment, new skills notwithstanding.  Her descriptions in her 
 
         deposition and at hearing of her job searches speak of little 
 
         effort on her part to secure employment.  Claimant's effort, or 
 
         lack thereof, to find work was also of concern to Mr. McCluhan 
 
         who wrote on June 25, 1986:
 
         
 
              She has done absolutely nothing with regard to looking for 
 
              employment....
 
         
 
              ....The fact that Margaret has done absolutely nothing with 
 
              regard to seeking employment does concern me.  As she and I 
 
                                                 
 
                                                          
 
                   have discussed in the past, there are a number of positions 
 
              that she could look into which she has adequate transferable 
 
              skills for.  As I'm sure you know, it is essentially a 
 
              "full-time job" obtaining a job.  I pointed this out to 
 
              Margaret during our most recent visit.
 
         
 
         (Dep. Ex. D, pp. 9-10)
 
         
 
         Yet, it was another five months after this letter was written 
 
         before claimant secured work.
 
         
 
              The record is void of any evidence that claimant's treating 
 
         physician placed any restrictions on her employability.  Dr. 
 
         Bashara recommends claimant refrain from lifting over fifty 
 
         pounds and no repetitive or excessive bending, stooping or 
 
         twisting on her lower back.  These restrictions are far from 
 
         onerous, particularly in light of the fact that claimant did not 
 
         testify that these restrictions were hampering her job search, 
 
         and that any job she held ever required her to lift over fifty 
 
         pounds. Furthermore, Dr. Bashara did not completely prohibit 
 
         claimant from bending, stooping or twisting, but only not to 
 
         engage in such activities excessively or repetitively.  While 
 
         this may prevent claimant from returning to work as a 
 
         housekeeper, it does not necessitate a conclusion that these 
 
         restrictions prohibit her from engaging in employment for which 
 
         she is qualified by training and experience.
 
         
 
              Considering the elements of industrial disability previously 
 
         stated in light of the medical evidence as well as the testimony, 
 
         it is found claimant sustained a permanent partial disability of 
 
         8 percent for industrial purposes.  As the record shows claimant 
 
         has been paid 21 weeks of temporary total disability and 50 weeks 
 
         or 10 percent permanent partial disability benefits, claimant has 
 
 
 
                      
 
                                                          
 
         been paid all amounts to which she is entitled and shall take 
 
         nothing further as a result of these proceedings.
 
         
 
                               FINDINGS OF FACT
 
         
 
              Therefore, based on the evidence presented, the following 
 
         facts are found:
 
         
 
              1.  Claimant injured her back at work on November 8, 1984 
 
         when she went to pick up a bucket, was treated in the emergency 
 
         room and was unable to return to work until November 12, 1984.
 
         
 
              2.  Claimant was feeling discomfort in her back all day on 
 
         November 25, 1984 and while vacuuming found she could hardly 
 
         move.
 
         
 
              3.  Claimant was treated by Stephen G. Taylor, M.D., 
 
         orthopedic surgeon, from November 25, 1984 until March 28, 1985.
 
         
 
              4.  Claimant was hospitalized from November 25, 1984 through 
 
         November 30, 1984 and underwent a CT scan which revealed a disc 
 
         protrusion at L5, S1 which Dr. Taylor did not find surgically 
 
         significant.
 
         
 
              5.  Based on his examinations and findings, Dr. Taylor did 
 
         not recommend any permanent partial impairment as a result of 
 
         claimant's back problems.
 
         
 
              6.  Claimant was admitted to the Mercy Pain Clinic under the 
 
         care of James C. Blessman, M.D., where she made excellent 
 
         progress in dealing with her symptoms of back pain.
 
         
 
              7.  Claimant was seen for evaluation purposes only by Jerome 
 
         G. Bashara, M.D., orthopedic surgeon, who rated her 5 percent 
 
         permanently partially impaired and placed restrictions of no 
 
         lifting over fifty pounds and no excessive or repetitive bending, 
 
         stooping or twisting on her lower back.
 
         
 
              8.  Claimant was provided the opportunity of vocational 
 
         rehabilitation to improve her typing skills and is now able to 
 
         type approximately forty words per minute.
 
         
 
              9.  Records of claimant's vocational rehabilitation 
 
         counselor show defendant employer was willing to give claimant 
 
         consideration for employment other than as a housekeeper.
 
         
 
              10.  Claimant did not wish to return to work for defendant 
 
         employer but was desirous of a different employment location.
 
         
 
              11.  Claimant made little effort to secure work and did not 
 
         find employment from the time she last worked on November 25, 
 
         1984 until November 1986.
 
         
 
              12.  Claimant has a permanent partial disability of 8 
 
         percent for industrial purposes.
 
                                                 
 
                                                          
 
         
 
              13.  Claimant has been paid 21 weeks of temporary total 
 
         disability and 50 weeks or 10 percent of permanent partial 
 
         disability benefits.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made.
 
         
 
              1.  Claimant has established she sustained an injury on 
 
         November 8, 1984 which arose out of and in the course of her 
 
         employment with Iowa Methodist Medical Center.
 
         
 
              2.  Claimant has established her work injury is the cause of 
 
         a permanent disability.
 
         
 
              3.  Claimant has established she sustained a permanent 
 
         partial disability of 8 percent for industrial purposes.
 
         
 
                                       ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              As claimant has established an eight percent (8%) industrial 
 
         disability entitling her to forty (40) weeks of benefits and has 
 
         already been paid fifty (50) weeks of benefits based on a ten 
 
         percent (10%) permanent partial disability, claimant is entitled 
 
         to nothing further from these proceedings.
 
         
 
              Each party is assessed its own costs with defendants to bear 
 
         the cost of the court reporter pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 26th day of January, 1988.
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll
 
         Des Moines, Iowa  50309-3320
 
         
 
         Mr. Hugh J. Cain
 
         Attorney at Law
 
         4th Floor, Equitable Bldg.
 
         Des Moines, Iowa  50309
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.3; 1402.4; 1803
 
                                                 Filed 1-26-88
 
                                                 Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARGARET HARTMAN,
 
         
 
              Claimant,
 
                                                      File No. 783897
 
         vs.
 
         
 
         IOWA METHODIST MEDICAL CENTER,            A R B I T R A T I O N
 
         
 
              Employer,                               D E C I S I O N
 
         
 
         and
 
         
 
         AETNA CASUALTY AND SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.3
 
         
 
              Claimant, employed as a housekeeper, established she 
 
         sustained an injury to her back arising out of and in the course 
 
         of employment when she was picking up a bucket, part of a regular 
 
         assigned duty.
 
         
 
         1402.4
 
         
 
              Although claimant's treating physician did not "recommend" 
 
         any permanent partial impairment, other medical evidence, in 
 
         addition to claimant's testimony, established claimant's injury 
 
         was the cause of permanent impairment.
 
         
 
         1803
 
         
 
              Claimant is 42 years old with a ninth grade education. 
 
         Claimant failed to demonstrate significant loss of earnings as a 
 
         result of her injury and her motivation was seriously questioned. 
 
         Claimant awarded 8% industrial disability.